Canada ‘over-criminalizing’ poor, Indigenous and substance users who violate bail conditions, Supreme Court says

The Supreme Court says Canada is “over-criminalizing” the poor, Indigenous peoples and substance users by excessively prosecuting those who violate their bail conditions. Such prosecutions, it said, should be a “last resort.”

The ruling, which comes amid criticism of the criminal-justice system’s treatment of racialized minorities and Indigenous peoples, is the Supreme Court’s latest attempt to overhaul a bail process it says has devastating effects on marginalized individuals and weighs down an overburdened criminal-justice system.

The court was asked to rule on the case of Chaycen Zora of British Columbia, who was accused of drug possession for the purpose of trafficking and released on bail with his mother as his guarantor. He was charged with violating a bail condition when he twice did not answer the front door when a police officer rang the bell. He said he was in a bedroom distant from the front door, and was tired from heroin withdrawal and adjusting to methadone.

A court convicted him, a conviction upheld in two appeals, including a ruling from the B.C. Court of Appeal, on the basis that a reasonable person in Mr. Zora’s shoes would have come to the door.

But the Supreme Court was unanimous that this was the wrong way to look at the case, and threw out the conviction. Prosecutors will have to prove at a new trial that Mr. Zora knew the police were at the door, or that he himself (and not the hypothetical “reasonable person”) intended to ignore the police. Proving the person intended to violate a bail condition is a much bigger burden on prosecutors, and will now be required across the country (about half of provinces already have this requirement because of lower-court rulings).

But the court did not stop there. It also took aim at the notion that such violations should be treated as criminal offences, saying that in most cases, revoking bail and having a new hearing is an appropriate consequence.

“Prosecutions and convictions … should be a last resort measure to primarily address harmful intentional breaches of bail conditions where the remedies available through bail review and revocation would not be sufficient,” Justice Sheilah Martin wrote for the court.

The burden falls most heavily on marginalized people, the poor and Indigenous peoples, the court said.

Harmful breaches, for instance, include an attempt to intimidate a witness. Most breaches of bail conditions (such as not answering a doorbell to police, or drinking alcohol) are victimless, and would not be deemed crimes in other circumstances, the court said.

When bail is revoked and an individual is brought to court, easier bail conditions may be appropriate, the court said. For instance, instead of giving alcoholics a no-alcohol order, courts could bar them from drinking outside their home. It also said that bail conditions in Canada are too onerous, and instructed judges and justices of the peace to ease up.

The maximum penalty for violating a bail condition is two years in prison. Prosecution is possible even if an accused is found not guilty of the original offence. The result, the court said, is that too many people wind up with a criminal record, or add to an existing one, and find it tougher to gain bail in future cases.

Sarah Runyon, who represented Mr. Zora, called the ruling a “moment of judicial activism,” and a time to reflect on “who we should properly label ‘criminal’ in our society.” She also called it a recognition that bail conditions “create a revolving door of despair for our most vulnerable (and not necessarily most dangerous) offenders.”

Daniel McLaughlin, a spokesman for the B.C. Prosecution Service, said that the decision changes the legal framework for breach of bail prosecutions, and that “appropriate steps will be taken to ensure our policies and practices reflect the current law in this area.”

The ruling will benefit racial minorities, Indigenous peoples and others by changing a system whose “default” position has been prosecuting people for breaching bail conditions, said Roy Millen, a lawyer for the British Columbia Civil Liberties Association, which intervened in the case. “The court’s intention is that instead of the default being that marginalized people … end up in jail, they should regain some civil liberty.”

Jason Gratl, a lawyer representing the Vancouver Area Network of Drug Users, was “elated” by the ruling, which he said will help protect substance users from unnecessary prosecutions.

“My client group was subject to almost reflexively imposed conditions to abstain from the consumption of drugs and alcohol, and to refrain from entering geographic quadrants typically in which they lived,” he said. “And the prosecution, for breach of those conditions, was equally reflexive. The standard of proof was such that there were no defences, once it was shown that the act was committed. The Zora case reverses all of those reflexive practices.”

Mr. McLaughlin said prosecutorial decisions “are made on a principled basis consistent with the charge assessment guidelines.”

Three years ago, in a case called Antic, the court said unanimously that police, prosecutors and courts were unnecessarily risk-averse, withholding bail when it should be granted and imposing too many onerous conditions when they did see fit to release an accused person.

But the court said in the new case on Thursday that many courts have still not changed their ways.

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