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Editor’s Note:

The offenses under 145 of the Code of failure to comply and failure to appear are not strict liability offenses. (There are a few cases which I believe are not in accordance with the mainstream view in that they attempt to classify these as strict liability offenses; eg: The Queen and Ludlow 1999 BCCA 365 (CanLII), (1999), 136 C.C.C. (3d) 460).

In other words, it is not enough for the crown to prove that the person did not appear or did not comply, with the result that the defendant would then be required to prove a lawful excuse on the balance of probabilities.

The actus reus here is not simply proof that the act was committed, simpliciter (as is the case with strict liability).

The crown also has the burden of proving,beyond a reasonable doubt, that the accused person had the necessary evil mind or mens rea.

Only if the crown has proven commission of the act, along with the necessary mens rea, does it then fall to the accused to prove a lawful excuse.

Carelessness or negligence cannot suffice to establish the requisite mens rea.

R. v. Custance, 2005 MBCA 23 (CanLII), leave to appeal refused, (2005). 346 NR 195th (SCC)

10                 The required elements of an offence under s. 145(3) are:

(1)     that the Crown must prove that the accused was bound by an undertaking or recognizance;

(2)     that the accused committed an act which was prohibited by that undertaking or recognizance or

that the accused failed to perform an act required to be performed by that undertaking or recognizance; and

(3)     that the accused had the appropriate mens rea, which is to say that the accused knowingly and

voluntarily performed or

failed to perform the act or omission which constitutes the actus reus of the offence.

See R. v. L.T.W., [2004] N.J. No. 260 (QL) (Prov. Ct.) at paras. 19-20.

11                 In terms of the actus reus, it is clear that the Crown has proven that Mr. Custance was bound to the recognizance and failed to comply with the conditions.  However, counsel for the accused argues that there was no mens rea proven.

12                 Gary T. Trotter, in his text The Law of Bail in Canada, 2d ed. (Toronto:  Carswell, 1999) at 449, states that in order to have the requisite mens rea, the accused must knowingly or recklessly infringe the conditions of the undertaking.  The Crown does not have to prove that the accused intended to breach the recognizance, but rather only that the accused intended to commit the actus reus.  

While recklessness (the conduct of one who sees the risk and nonetheless who takes the chance) will fulfill the mens rea requirement, mere carelessness or negligence will not.  See Sansregret v. The Queen, 1985 CanLII 79 (S.C.C.), [1985] 1 S.C.R. 570 at 581-82, per McIntyre J., and R. v. Legere 1995 CanLII 1551 (ON C.A.), (1995), 95 C.C.C. (3d) 555 at 565 (Ont. C.A.).

13                 The test for mens rea is primarily subjective, and in applying the subjective test, the court looks to the accused’s intention and the facts as the accused believed them to be.  See R. v. Théroux, 1993 CanLII 134 (S.C.C.), [1993] 2 S.C.R. 5.  


16                 A typical mistake of fact that occurs in these types of situations is an accused writing the date of his trial down incorrectly and thus failing to appear.  See R. v. Hutchinson (K.) reflex, (1994), 160 A.R. 58 (Prov. Ct.), and R. v. Daoud reflex, (1988), 65 Sask.R. 308 (Q.B.), which explained at para. 7:

Evidence of a general mistake of fact can negative mens rea and thus defeat the Crown’s attempts to prove guilt beyond a reasonable doubt.

R. v. Legere, 1995 CanLII 1551 (ON ca): approved of in R. v. Manuel, 2000 CanLII 2410 (NS SC), per  LASKIN J.A.:

2.         The Charge of Failing to Carry and Produce His Bail Papers   

                    The appellant was convicted under s.145(3) of the Code which provides:

            145.(3)  Every one who, being at large on his undertaking or recognizance given to or entered into before a justice or judge and being bound to comply with a condition of that undertaking or recognizance directed by a justice or judge, fails, without lawful excuse, the proof of which lies on him, to comply with that condition, is guilty of

(a)an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b)an offence punishable on summary conviction.

                        Mr. Trotter for the Crown acknowledged that the offence of failing to comply with a condition of a recognizance is a true criminal offence requiring proof of mens rea and that mere carelessness or failure to take the precautions that a reasonable person would take will not support a conviction.  See R. v. Bender (1976), 30 C.C.C. (2d) 496 (B.C.S.C.); R. v. Stuart 1981 CanLII 364 (BC S.C.), (1981), 58 C.C.C. (2d) 203 (B.C.S.C.) and R. v. Daoud  reflex, (1988) 65 Sask. R. 308 (Q.B.).  Although the trial judge rejected the appellant's explanation, his reasons indicate that he did so because the appellant was negligent.  In applying a negligence standard rather than requiring proof of mens rea the trial judge erred.  The trial judge also seems to have focussed on the "without lawful excuse" portion of  s.145(3) and improperly placed an onus on the appellant to explain why he did not have his bail papers.  I adopt the words of Brooke J.A. in R. v. Santeramo (1976), 32 C.C.C. (2d) 35 (Ont. C.A.), where, in dealing with a charge of  possession  of counterfeit money without lawful justification or excuse, he wrote at p.44:

            A charge to the jury should make clear this distinction.  The issue of  lawful justification or excuse arises only after the Crown has proved beyond a reasonable doubt the elements of the offence.  So in this case at the conclusion of the evidence if there was a reasonable doubt as to an element of the offence, the accused ought to be acquitted.  If, on the other hand, the Crown has satisfied its onus in that regard beyond a reasonable doubt, then the trial Judge must consider if the accused has proved a defence of lawful justification or excuse by a preponderance of evidence:  see R. v. Kozak and Moore (1975), 20 C.C.C.  (2d) 175, 30 C.R.N.S. 7 (Ont. C.A.); R. v. McFall et al. (1975),  26 C.C.C.  (2d) 181 (B.C.C.A.).  In Brownridge v. The Queen 1972 CanLII 17 (S.C.C.), (1972), 7 C.C.C. (2d) 417, 28 D.L.R. (3d) 1, [1972] S.C.R. 926 (S.C.C.) Laskin, J. (as he then was),  in a dissenting judgment, which on this issue does not appear to differ from the majority, considered the term "reasonable excuse" as used in s.223(1) of the Criminal Code.  At p.434 he said:

            I agree with this ruling of the trial Judge because I regard the phrase "without reasonable excuse" as adding a defence or a bar to successful prosecution hich would not be available without those words, but not as encompassing defences or bars that would exist without them.

            In my view, the inclusion of the words "lawful justification or excuse" ought to be so construed; that is to say, construed as adding a defence that would not otherwise be available under the section and not as limiting the meaning of the section by eliminating what would otherwise be an element in the Crown's case and the defence that it had not been proved.

                         The evidence in the present case does not support a finding that the appellant knowingly or recklessly failed to carry his bail papers or that he intentionally disposed of them.  Accordingly, I would set aside the appellant's conviction  on the charge of  failing to carry and produce his bail papers on request of  the police, and enter an acquittal.

R. v. Manuel, 2000 CanLII 2410 (NS SC)


[1]              Reginald Mark Manuel was on October the 21st, 1999 sentenced to two ninety day prison sentences to be served concurrently for alcohol driving offences.  The sentences were intermittent to be served on weekends from 8:00 P.M. Friday to 6:00 A.M. Sunday at the Halifax Correctional Centre, commencing October the 23rd, 1998.  The accused attended as directed on one further weekend in October, four weekends in November but did not show up the first week in December until Saturday, the 4th of December at 11:00 A.M. whereas his sentence required him to attend Friday, the 3rd of December at 8:00 P.M.

[2]              As a result, Reginald Mark Manuel was charged:

THAT he, at or near Lower Sackville, in the County of Halifax, Province of Nova Scotia, on or about the 4th day of December, 1999 was, before the expiration of a period of imprisonment to which he was sentenced, at large in Canada without lawful excuse, contrary to Section 145(1)(b) of the Criminal Code of Canada.


[12]         With respect to the standard or review, I have already recited from the transcript the trial judge’s comments on the reverse onus provision and included in those comments are statements that make it clear the only conclusion you can draw from the decision of the trial judge is that he did not believe the threshold required of an accused under the Criminal Code was one on the balance of probabilities.  I agree with the authorities recited by Mr. Cameron, on behalf of Mr. Manuel, that the mere carelessness or failure to take the precautions that a reasonable person would take will not support a conviction and that an “honest mistake” will negate mens rea.  R. v. Legere 1995 CanLII 1551 (ON C.A.), (1995), 95 C.C.C. (3d) 555 Ontario Court of Appeal, R. v. Blazevic, [1997] Ontario Judgment No. 1356, R. v. Vell, [1996] British Columbia Judgment No. 2074, R. v. Fitzgerald (1995), 129 Newfoundland & PEIR 174 and R. v. Hutchinson, [1994] Alberta Judgment No. 731.

R. v. Stuart, 1981 CanLII 364 (BC SC)

[1]               MUNROE J.:—Appeal by way of stated case from conviction under s. 133(5) [rep. & sub. 1974-75-76, c. 93, s. 7(1)] of the Criminal Code for unlawfully without lawful cause failing to attend Court on June 17, 1980, in accordance with his promise to appear, said promise having been confirmed by a Justice.

[2]               After hearing the evidence of the appellant, the trial Judge found as a fact that the appellant had honestly forgotten that he was supposed to appear in Court on that date, but convicted him nevertheless and sentenced him to one day imprisonment.

[3]               Section 133(5) enacts that it is an offence to fail, without lawful excuse, the proof of which lies upon the appellant, to appear at a time and place stated in the promise to appear.

[4]               The learned trial Judge found as a fact that the appellant was negligent in forgetting his obligation to appear in Court on that date and that his forgetfulness did not afford a defence.

[5]               The question stated for the opinion of this Court is this:

Did I err in law in holding that honest forgetfulness does not deprive an accused of the mens rea necessary to support a conviction for the offence of failing to appear contrary to section 133(5) of the Criminal Code of Canada?

[6]               Counsel for the appellant submits that forgetfulness deprived the appellant of the mental elements necessary to support the actus reus of the offence of failing to appear, an offence requiring mens rea of a type requiring present knowledge or absence of such knowledge induced by recklessness or wilful blindness.

[7]               Counsel for the Crown submits that the appellant was properly convicted because he had "knowledge" though he had forgotten, and because the appellant was under a duty to recall and to address his mind to it. This, it is submitted, was not a case of a mistake as to fact which negatived mens rea.

[8]               After consideration of the authorities, including R. v. King 1962 CanLII 16 (S.C.C.), (1962), 133 C.C.C. 1, 35 D.L.R. (2d) 386, [1962] S.C.R. 746; R. v. Bender (1976), 30 C.C.C. (2d) 496, [1976] W.W.D. 84; R. v. City of Sault Ste. Marie 1978 CanLII 11 (S.C.C.), (1978), 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, [1978] 2 S.C.R. 1299; R. v. Prue 1979 CanLII 227 (S.C.C.), (1979), 46 C.C.C. (2d) 257, 96 D.L.R. (3d) 577, [1979] 2 S.C.R. 547, and Beaver v. The Queen 1957 CanLII 14 (S.C.C.), (1957), 118 C.C.C. 129, [1957] S.C.R. 531, 26 C.R. 193, I am of the opinion that there is merit in the submission of counsel for the appellant. I hold that under s. 133(5) mens rea is an essential ingredient and the finding of the learned trial Judge that the appellant honestly forgot his obligation to appear on that date negatived mens rea and provided a lawful excuse for his failure to appear.

[9]               The appeal is allowed. The conviction is quashed.

Jim O'Neil, LL.B.

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