R. v. Bird

R. v. Bird
Collection
Supreme Court Judgments
Date
2019-02-08
Neutral citation
2019 SCC 7
Report
[2019] 1 SCR 409
Case number
37596
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Saskatchewan
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409
Appeal Heard: March 16, 2018 Judgment Rendered February 8, 2019 Docket: 37596
Between:
Spencer Dean Bird
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Aboriginal Legal Services Inc., David Asper Centre for Constitutional Rights and Canadian Civil Liberties Association
Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 87)
Moldaver J. (Wagner C.J. and Abella, Côté, Brown and Rowe JJ. concurring)
Concurring Reasons: (paras. 88 to 174)
Martin J. (Karakatsanis and Gascon JJ. concurring)
R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409
Spencer Dean Bird Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Aboriginal Legal Services Inc.,
David Asper Centre for Constitutional Rights and
Canadian Civil Liberties Association Interveners
Indexed as: R. v. Bird
2019 SCC 7
File No.: 37596.
2018: March 16; 2019: February 8.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for saskatchewan
Criminal law — Administrative orders — Collateral attack — Accused charged criminally with breaching Parole Board long‑term supervision order requiring that he reside at community correctional centre — Accused defending charge at trial on basis that residency condition was not within Board’s statutory authority and violated his constitutional right to liberty — Whether accused could collaterally attack residency condition — If so, whether residency condition arbitrary in respect of purpose of long‑term offender regime — Canadian Charter of Rights and Freedoms, s. 7 — Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 134.1(2) .
B was found to be a long‑term offender and received a sentence comprised of a prison term and a period of long‑term supervision in the community. Pursuant to s. 134.1(2) of the Corrections and Conditional Release Act (“CCRA ”), the Parole Board imposed a residency condition as part of B’s long‑term supervision order (“LTSO”). This condition required that he reside at a community correctional centre, community residential facility or other residential facility approved by the Correctional Service of Canada. B was placed in Oskana Centre, a community correctional centre. Less than a month after his long‑term supervision commenced, B left Oskana Centre and did not return. He was eventually apprehended and charged with having breached the residency condition of his LTSO.
B defended the charge at trial on the basis that the residency condition of his LTSO was not within the Board’s statutory authority and violated his right to liberty under s. 7 of the Charter. The trial judge agreed and acquitted B, finding that the residency condition was invalid. The Court of Appeal rejected this finding, set aside B’s acquittal, entered a conviction on the charge and remitted the matter for sentencing. B appeals, renewing his s. 7 Charter attack on the residency condition and raising for the first time that the condition violates his Charter rights under ss. 9 and 11(h).
Held: The appeal should be dismissed.
Per Wagner C.J. and Abella, Moldaver, Côté, Brown and Rowe JJ.: B was not permitted to collaterally attack the residency condition of his LTSO. Thus, it is unnecessary to consider whether the residency condition violates his Charter rights.
In R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706, and in the companion case, R. v. Al Klippert Ltd., [1998] 1 S.C.R. 737, the Court developed a distinct approach for determining whether a person who is charged criminally with breaching an administrative order can collaterally attack that order. This determination is made by focussing on the legislature’s intention: the court must inquire into whether the legislature intended to permit collateral attacks on the order, or intended instead that a person should challenge the order by way of other review mechanisms. In focussing on the legislature’s intention, the Maybrun framework balances two principles: (1) ensuring that the legislature’s decision to assign decision‑making powers to administrative bodies is not undermined and (2) ensuring that individuals have an effective means available to them to challenge administrative orders, particularly when these orders are challenged on the basis that they are not Charter compliant. In the Charter context, this means that the person challenging an order must be able to receive an effective remedy that will vindicate his or her Charter rights. Where no such remedies are available, it must be inferred that the intention of the legislature is to permit a collateral attack. To determine the legislator’s intention as to the appropriate forum for challenging the validity of an administrative order, Maybrun identifies five non‑exhaustive factors that may be considered by a court: (1) the wording of the statute under the authority of which the order was issued; (2) the purpose of the legislation; (3) the existence of a right of appeal; (4) the kind of collateral attack in light of the expertise or raison d’être of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply with the order. The factors are not independent and absolute criteria, but important clues, among others, for determining the legislature’s intention.
On balance, with the exception of the final Maybrun factor, the other factors strongly indicate that Parliament did not intend to permit collateral attacks in circumstances like those existing in this case. With respect to the first two factors, it would undermine the purposes of long‑term supervision if offenders were allowed to take a “breach first, challenge later” approach to the conditions of their LTSOs. The conditions of an LTSO are imposed to reduce to an acceptable level the elevated risk posed by long‑term offenders and dangerous offenders in the community. When offenders breach these conditions, they expose the public to this risk. Permitting a “breach first, challenge later” approach in this context undermines not only the community’s interests, but also those of the offenders, by compromising the offender’s rehabilitative prospects. This outcome is inconsistent with the objectives of the long‑term supervision regime.
The third factor permits a court to consider not only the existence of a right of appeal to an administrative appeal tribunal, but also the existence of other effective mechanisms or forums for challenging the order at issue. Although there is no right of appeal under the CCRA from a decision of the Board concerning the conditions of an LTSO, the record indicates that there were mechanisms available to B that would have provided him with an effective means to challenge the residency condition. He could have written to the Board to ask it to vary or remove the condition; he could have applied for judicial review in the Federal Court; and he could have applied to the provincial superior court for habeas corpus, a remedy that offers simplified procedures that promote greater accessibility by self‑represented litigants and persons with limited means. Accordingly, B was not denied the ability to fully defend against the charge of breaching the residency condition, because he had the opportunity to challenge the Board’s order through these mechanisms.
The fourth factor permits a court to consider the nature of a collateral attack in light of the expertise or raison d’être of other mechanisms or forums for challenging the order. Where the nature of the collateral attack involves considerations that fall squarely within the expertise or raison d’être of a particular administrative body or other forum, this may be taken as an indication that Parliament wanted that body to decide the question, as opposed to permitting a collateral attack. In the instant case, s. 134.1(2) of the CCRA gives the Board broad discretionary power to impose whichever conditions on long‑term supervision it deems “reasonable and necessary to protect society and ensure the successful integration of the offender into society”. This provision demonstrates Parliament’s intention to rely on the expertise and experience of the Board in determining which conditions are needed in an LTSO to achieve the balance between public safety and the successful reintegration of the offender. Therefore, if B asked the Board to reconsider its decision to impose the residency condition, the Board would consider matters that fall squarely within its expertise. The fact that B’s challenge to the residency condition raises constitutional issues does not mean that it raises considerations foreign to the Board’s experience and expertise. These issues would also not be unfamiliar to the Federal Court or to provincial superior courts hearing habeas corpus applications. Consequently, this factor indicates a legislative intention to have B resort to these mechanisms.
Lastly, the penalty for breaching a condition of an LTSO is significant. However, this final factor is not determinative. When it is viewed not in isolation, but in conjunction with the other factors, it is clear that it is not decisive of Parliament’s intention that B be permitted to collaterally attack the Board’s order. Given that permitting a “breach first, challenge later” approach in this context would pose a real risk to public safety and that effective review mechanisms were available to B, Parliament did not intend that B should be able to circumvent these mechanisms and instead, challenge the residency condition only after breaching it. Rather, Parliament intended that these offenders would ask the Board to vary or remove the condition and/or, if judicial review in the Federal Court would not provide an effective remedy, apply for habeas corpus.
Per Karakatsanis, Gascon and Martin JJ.: B’s constitutional challenge to his LTSO residency condition should have been permitted at his trial for breach of that condition. Nevertheless, once permitted, B’s claim under s. 7 of the Charter should fail. B’s appeal should therefore be dismissed and his conviction upheld.
There is agreement with the majority that the factors set out in Maybrun should be applied; however, there is disagreement on their application. Unlike the collateral attacks in Maybrun and Klippert, B’s collateral attack puts his Charter rights in issue in light of the very real possibility of significant imprisonment. When these constitutional and carceral dimensions of B’s cases are examined, it is revealed that Parliament did not intend to prohibit B from challenging at trial the constitutional validity of a condition whose breach carries a maximum penalty of ten years’ imprisonment.
With respect to the first and second Maybrun factors, although the broad authority conferred on the Board by s. 134.1(2) of the CCRA does militate against collateral attacks on the Board’s LTSO decisions, allowing B’s collateral attack is not at odds with the purpose of the long‑term offender regime. Permitting B to advance his constitutional challenge to his LTSO condition will not inspire or perpetuate a “breach first, challenge later” attitude among long‑term offenders. Framing B’s conduct as “breaching first, challenging later” shifts the focus from whether Parliament intended to allow long‑term offenders to challenge LTSO conditions when charged with their breach, which is the correct question, to whether Parliament intended to permit LTSO breaches committed for the purpose of challenging the conditions breached. Of course Parliament would not intend to make collateral attacks available to those who flout their conditions in order to challenge them. Further, and crucially, it is breaches of residency conditions, and not collateral attacks on those conditions, that pose a risk to society.
When examining the third factor, the three options available to B for challenging the residency condition identified by the majority do not, either individually or in concert, provide effective recourse for adjudicating B’s Charter claim to the point of illustrating a legislative intent to bar B from arguing that the condition for which he faces a criminal charge is unconstitutional. It cannot be said that Parliament prescribed any one of the three options as the particular forum for raising a constitutional challenge to an LTSO condition. Given their shortcomings, neither internal review by the Parole Board nor judicial review can constitute the only prescribed forum for adjudicating constitutional challenges to LTSO conditions. Assuming its availability and Parliament’s awareness of it in this context, habeas corpus cannot serve as evidence that Parliament intended to bar collateral attacks on LTSO conditions; like a collateral attack, an application for habeas corpus represents an external attack on an LTSO residency condition which disregards the “administrative appeal process” contemplated by the CCRA .
With respect to the fifth factor, the penalty upon a conviction under s. 753.3 of the Criminal Code is up to 10 years’ imprisonment. To bar B’s attack on the constitutionality of the condition is to deny his defence at trial where he is facing a lengthy period of imprisonment. The general rule against collateral attacks flows from rule of law and administration of justice considerations, namely, that it is improper to bypass adjudicative processes established by the legislature. However, when criminal defences are barred in the face of severe sanctions, separate aspects of the rule of law and the administration of justice are clearly invoked. The trial judge’s task in cases such as this is to ask whether full answer and defence considerations and fair trial rights outweigh rigid adherence to administrative structures, particularly where those structures are limited. B’s challenge to his residency requirement is the only defence he advanced. He could go to jail for a significant period of time without ever having the basis for that sentence — the residency condition — reviewed by a court for constitutional validity. The prospect of someone in a situation like B’s mounting a meritorious Charter claim, yet being ineligible for a corresponding remedy because of the forum in which the claim was advanced, is an affront to both the administration of justice and the accused’s Charter‑protected right to make full answer and defence. Accordingly, this factor weighs heavily in favour of finding that Parliament could not have intended a claim like B’s to be barred in these circumstances. B should be allowed to raise his constitutional defence at this time and in this forum.
With respect to B’s Charter claim, an infringement of liberty will be arbitrary in a manner that infringes s. 7 of the Charter where it bears no rational connection to the purpose of the governing law. Long‑term supervision is a form of exceptional sentence reserved for individuals who pose an ongoing threat to the public and merit enhanced sentences on preventive grounds. The specific objective of long‑term supervision is to ensure that the offender does not reoffend and to protect the public during a period of supervised reintegration into society. The Parole Board’s broad discretion to set LTSO conditions under s. 134.1(2) of the CCRA is limited only by the requirement that the conditions must aim at protecting society or facilitating the long‑term offender’s reintegration into society. The text of the provision strongly supports the conclusion that the Board is authorized to impose residency requirements, and the purposes of the long‑term offender regime are best achieved by interpreting s. 134.1(2) as authorizing the Board to order residency where it deems fit, including in a community‑based residential facility such as Oskana Centre. Oskana Centre’s technical status as a “penitentiary” under the CCRA does not detract from this conclusion, nor do the adjacent CCRA provisions which specifically address residency requirements in other contexts. Accordingly, the text, context, and purpose of s. 134.1(2) confirm that the Board is empowered to set residency conditions like the one imposed on B where they are reasonable and necessary to achieve the objects of the long‑term offender regime. The residency condition in this case was informed by B’s specific circumstances. Given those circumstances — which include a significant history of failures to comply, substance abuse, and a long criminal record — and the purpose of s. 134.1(2) in the context of the long‑term offender regime, B’s residency condition is not arbitrary under s. 7 of the Charter.
B should not be permitted to raise claims under ss. 9 and 11(h) of the Charter. While the Court has the discretion to hear new constitutional arguments on appeal, this discretion should only be exercised exceptionally, taking into account all of the circumstances, including the state of the record, fairness to all parties, the importance of having the issue resolved by the Court, its suitability for decision and the broader interests of the administration of justice. B has not demonstrated that this is one of those rare cases that warrants this Court’s consideration of his new constitutional arguments on appeal.
Cases Cited
By Moldaver J.
Applied: R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706; R. v. Al Klippert Ltd., [1998] 1 S.C.R. 737; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; distinguished: Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75; considered: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; referred to: Wilson v. The Queen, [1983] 2 S.C.R. 594; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; R. v. Litchfield, [1993] 4 S.C.R. 333; Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629; R. v. Domm (1996), 31 O.R. (3d) 540; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138; R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936; R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223; D.G. v. Bowden Institution (Warden) et al., 2016 ABCA 52, 612 A.R. 231; Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124; Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220; R. v. Miller, [1985] 2 S.C.R. 613; Normandin v. Canada (Attorney General), 2005 FCA 345, [2006] 2 F.C.R. 112.
By Martin J.
Applied: R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706; R. v. Al Klippert Ltd., [1998] 1 S.C.R. 737; referred to: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809; Normandin v. Canada (Attorney General), 2005 FCA 345, [2006] 2 F.C.R. 112; R. v. Litchfield, [1993] 4 S.C.R. 333; McKart v. United States, 395 U.S. 185 (1969); Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 9 , 10 (c), 11 (h), 24(1) , (2) .
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 2 , 98 , 99.1 , 100 , 133 , 134.1 , 134.2(1) , 135.1 , 147(1) .
Corrections and Conditional Release Regulations, SOR/92‑602, s. 161(1).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 753(1) (a), (b), (4) , (4.1) , 753.1(1) , (3) , 753.2(1) , 753.3 .
Federal Courts Act, R.S.C. 1985, c. F‑7, ss. 18 , 18.1 .
Federal Courts Rules, SOR/98‑106, r. 8(1).
Authors Cited
Bilson, Beth. “Lying in Wait for Justice: Collateral Attacks on Administrative and Regulatory Orders” (1998), 12 C.J.A.L.P. 289.
Canada. Correctional Service. Commissioner’s Directive 706, “Classification of Institutions”, 2018.
Clewley, Gary R., Paul G. McDermott and Rachel E. Young. Sentencing: The Practitioner’s Guide. Aurora, Ont.: Canada Law Book, 1995 (loose‑leaf updated May 2018, release 61).
APPEAL from a judgment of the Saskatchewan Court of Appeal (Richards C.J. and Ottenbreit and Whitmore JJ.A.), 2017 SKCA 32, 348 C.C.C. (3d) 43, [2017] 8 W.W.R. 684, [2017] S.J. No. 181 (QL), 2017 CarswellSask 216 (WL Can.), setting aside the acquittal entered by Henning Prov. Ct. J., 2016 SKPC 28, 352 C.R.R. (2d) 248, [2016] S.J. No. 68 (QL), 2016 CarswellSask 94 (WL Can.) and entering a conviction. Appeal dismissed.
Leif Jensen and Michelle Biddulph, for the appellant.
Theodore Litowski, for the respondent.
Sharlene Telles‑Langdon, for the intervener the Attorney General of Canada.
Deborah Krick, for the intervener the Attorney General of Ontario.
Jonathan Rudin and Emilie N. Lahaie, for the intervener Aboriginal Legal Services Inc.
Breese Davies and Cheryl Milne, for the intervener the David Asper Centre for Constitutional Rights.
Audrey Boctor and Olga Redko, for the intervener the Canadian Civil Liberties Association.
The judgment of Wagner C.J. and Abella, Moldaver, Côté, Brown and Rowe JJ. was delivered by
Moldaver J. —
I. Overview
[1] The general rule against collateral attacks on court orders is well-established: with limited exceptions, an order issued by a court must be obeyed unless it is set aside in a proceeding taken for that purpose. The rule has been consistently applied to prevent a person from attacking the validity of a court order when defending against a criminal charge stemming from its breach. In R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706, and in the companion case, R. v. Al Klippert Ltd., [1998] 1 S.C.R. 737, this Court developed a distinct approach for determining whether a person who is charged criminally with breaching an administrative order can collaterally attack that order. In those decisions, the persons seeking to challenge the administrative orders did not allege that the orders infringed their rights under the Canadian Charter of Rights and Freedoms .
[2] This appeal requires us to revisit the Maybrun framework in the context of a long-term offender, who has been charged criminally for having breached the residency condition imposed on him by the Parole Board of Canada (“Parole Board”) under a long-term supervision order (“LTSO”). In particular, we are required to decide whether, in defending that charge, it was open to the appellant, Spencer Dean Bird, to collaterally attack the validity of the residency condition on the basis that it contravened his Charter rights.
[3] Mr. Bird was found to be a long-term offender and received a sentence comprised of a prison term and a period of long-term supervision in the community. Based in part on Mr. Bird’s lengthy history of violence and numerous failed conditional releases, the Parole Board imposed a residency condition as part of Mr. Bird’s LTSO. This condition required that he reside at a community correctional centre, community residential facility or other residential facility approved by the Correctional Service of Canada (“CSC”). CSC placed Mr. Bird in Oskana Centre, a community correctional centre. Less than a month after his long-term supervision commenced, Mr. Bird left Oskana Centre and did not return. He was eventually apprehended and charged under s. 753.3(1) of the Criminal Code, R.S.C. 1985, c. C-46 , with having breached the residency condition of his LTSO.
[4] Mr. Bird defended the charge at trial on the basis that the residency condition of his LTSO was not within the Parole Board’s statutory authority and violated his s. 7 Charter rights. The trial judge accepted this argument and acquitted Mr. Bird, finding that the residency condition was invalid. On appeal, the Court of Appeal for Saskatchewan rejected this finding. In its view, the trial judge impermissibly permitted Mr. Bird to collaterally attack the residency condition. The Court of Appeal set aside Mr. Bird’s acquittal, entered a conviction on the charge under s. 753.3(1) and remitted the matter to the Provincial Court of Saskatchewan for sentencing. Mr. Bird now appeals to this Court. He renews his s. 7 Charter attack on the residency condition. Additionally, he raises for the first time that the condition violates his Charter rights under ss. 9 and 11 (h).
[5] For reasons that follow, I agree with the Court of Appeal that Mr. Bird was not permitted to collaterally attack the residency condition of his LTSO. In view of that, I find it unnecessary to address the various Charter arguments he has raised in support of his position that the residency condition is invalid. Accordingly, I would dismiss the appeal.
II. Facts
[6] Mr. Bird has a lengthy criminal history dating back to 1983. His criminal record consists of approximately 63 convictions, including 12 convictions for violent offences.
[7] On May 27, 2005, following Mr. Bird’s convictions for assault with a weapon and theft under $5,000, Judge Ferris of the Provincial Court of Saskatchewan found him to be a long-term offender under s. 753.1(3) of the Criminal Code . He sentenced Mr. Bird to 54 months of imprisonment to be followed by a 5-year period of long-term supervision. Over the course of this sentence, Mr. Bird was placed on statutory release three times. On each occasion, his release was suspended for violating conditions, re-offending or allegedly re-offending. Mr. Bird was eventually released on his long-term supervision order on June 21, 2013. Three days later, he was arrested and charged with possession of a weapon for a dangerous purpose, for which he eventually received a 12-month sentence.
[8] CSC prepared an “Assessment for Decision” dated April 28, 2014, which assessed Mr. Bird’s statutory release plans in respect of the 12-month sentence he received on the weapon conviction. Mr. Bird’s plan was to return to Ahtahkakoop First Nation and live with his brother. CSC found that this plan was not sufficient to manage the risk Mr. Bird posed to the community, noting that Mr. Bird had a “well established pattern of violence” and was “unable to abide by imposed conditions for any length of time” (A.R., vol. II, at p. 77). CSC determined that if a residency condition was not imposed, Mr. Bird would “present an undue risk to society” (ibid.). Accordingly, CSC recommended that Mr. Bird reside at a community correctional centre or a community residential facility for the duration of his statutory release and for the first 180 days of his long-term supervision.
[9] In its Pre-Release Decision dated July 15, 2014, the Parole Board took up CSC’s recommendation and imposed a condition that Mr. Bird reside at a community correctional centre, community residential facility or other residential facility (such as a private home placement) approved by CSC for the first 180 days of his long-term supervision. This condition was imposed pursuant to s. 134.1(2) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA ”), which permits the Parole Board to “establish conditions for the long term supervision of the offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender”. Echoing CSC’s concerns, the Parole Board reasoned that the residency condition was reasonable and necessary based on Mr. Bird’s “lengthy history of violence causing physical harm” and his “inability to abide by the conditions that [were] imposed” on his conditional releases (A.R., vol. II, at p. 69). The Parole Board concluded that it was “satisfied that [Mr. Bird would] require the structure and supervision that only can be provided by a community correctional centre/community residential centre. Therefore, residency is imposed for 180 days” (ibid.).
[10] The Parole Board conveyed its reasons for decision to Mr. Bird under a cover letter dated July 24, 2014. The letter expressly advised Mr. Bird that he could apply to the Board to be relieved of any of the conditions of his LTSO:
You may apply to the Parole Board of Canada to be relieved of any of your conditions or request that the Board vary the terms of any of your conditions of Long Term Supervision Order. Upon receipt of your application and an updated report from your Parole Officer, with whom you should discuss your request, your file will be referred to the Board for voting and subsequently you will be advised of the outcome. To ensure that your request receives complete consideration, please fully document the reasons for your request. [Emphasis added.]
(A.R., vol. II, at p. 67)
[11] On Mr. Bird’s statutory release date of August 14, 2014, he was transported to Oskana Centre where he lived until his warrant expiry date of January 7, 2015, at which time his LTSO commenced. That same day, Mr. Bird signed a Long-term Supervision Certificate prepared by CSC, which spelled out the special conditions of his long-term supervision, including a direction that he report to Oskana Centre. The Certificate also included an acknowledgement, signed by Mr. Bird, that violating a condition of his long-term supervision without lawful excuse was an offence under s. 753.3(1) of the Criminal Code .
[12] Oskana Centre is a community correctional centre, also known as a halfway house. It has established various conditions for persons who reside there, two of which include a nighttime curfew and a requirement that residents return to Oskana Centre from 11:00 a.m. to 1:00 p.m. Mr. Bird was expected to comply with those conditions.
[13] On January 28, 2015, Mr. Bird left Oskana Centre and did not return. The following day he was charged with breaching the residency condition of his LTSO under s. 753.3(1) of the Criminal Code . He remained at large for more than two months until April 16, 2015, when the police located him and placed him under arrest.
III. Judgments Below
A. Provincial Court of Saskatchewan, 2016 SKPC 28, 352 C.R.R. (2d) 248 (Henning Prov. Ct. J.)
[14] At his trial for breaching the residency condition of his LTSO, Mr. Bird argued that the residency condition exceeded the Parole Board’s statutory authority and violated his s. 7 Charter rights.
[15] The trial judge initially considered whether, in defending against the charge of breaching the residency condition, Mr. Bird could mount a collateral attack on the Parole Board’s decision to impose it. Applying the framework set out in Maybrun and Klippert, the trial judge determined that Mr. Bird could collaterally attack the order of the Parole Board.
[16] The trial judge then considered whether the residency condition was valid. He found that the decision of the Parole Board to impose the residency condition had the effect of placing Mr. Bird in Oskana Centre, a penal institution. In his view, such a condition was not authorized under the CCRA for LTSOs and it amounted to a significant breach of Mr. Bird’s rights under s. 7 of the Charter. Given his conclusion that the residency condition was unconstitutional, he concluded that Mr. Bird could not be convicted of breaching it. Accordingly, he dismissed the charge against Mr. Bird.
B. Court of Appeal for Saskatchewan, 2017 SKCA 32, 348 C.C.C. (3d) 43 (Richards C.J. and Ottenbreit and Whitmore JJ.A.)
[17] On appeal, the Crown argued that the trial judge erred in permitting a collateral attack on the Parole Board’s decision to impose a residency condition, and he further erred in determining that the residency condition violated s. 7 of the Charter.
[18] Chief Justice Richards, writing for a unanimous court, allowed the appeal. In his view, the trial judge erred in permitting a collateral attack on the residency condition imposed by the Parole Board. Considering the framework set out in Maybrun and Klippert and its focus on legislative intent, the Court of Appeal concluded that it was not the intention of Parliament to permit collateral attacks on conditions imposed on LTSOs by the Parole Board.
[19] Chief Justice Richards noted that allowing offenders to “breach first, challenge later” would tend to frustrate the purposes of the long-term supervision regime (para. 57). He further observed that the Federal Court has exclusive supervisory jurisdiction over Parole Board decisions and that an offender may ask the Parole Board to vary or remove any condition. Although a substantial penalty could be imposed for breaching an LTSO, Richards C.J. concluded that Parliament did not intend for offenders to take issue with conditions of their LTSOs by breaching them. It followed that the trial judge erred in permitting Mr. Bird to collaterally attack the Parole Board’s order. In light of this conclusion, he found it unnecessary to address whether the residency condition violated Mr. Bird’s s. 7 Charter rights. In the result, he set aside Mr. Bird’s acquittal, entered a conviction on the charge under s. 753.3(1) of the Criminal Code and remitted the matter to the Provincial Court for sentencing.
IV. Issue
[20] In my view, this appeal raises a single issue: Can Mr. Bird collaterally attack the residency condition imposed by the Parole Board on his LTSO in defending against a criminal charge of having breached that condition? Because I would answer this question in the negative, I find it unnecessary to address Mr. Bird’s argument that the residency condition violates his Charter rights.
V. Analysis
A. General Principles Regarding Collateral Attacks
[21] A collateral attack is an attack on an order “made in proceedings other than those whose specific object is the reversal, variation or nullification of the order” (Wilson v. The Queen, [1983] 2 S.C.R. 594, at p. 599; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at para. 60). This Court has recognized a general rule against collateral attacks on court orders: with limited exceptions, an order issued by a court must be obeyed unless it is set aside in a proceeding taken for that purpose (Maybrun, at paras. 2-3; R. v. Litchfield, [1993] 4 S.C.R. 333, at p. 349; Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 71). In Maybrun, the Court held that a different analysis was warranted for collateral attacks on administrative orders. As I will explain, however, similar principles underlie both approaches.
(1) Collateral Attacks on Court Orders
[22] There is a powerful rationale for the general rule precluding collateral attacks on court orders:
. . . the rule seeks to maintain the rule of law and to preserve the repute of the administration of justice. To allow parties to govern their affairs according to their perception of matters such as the jurisdiction of the court issuing the order would result in uncertainty. Further, “the orderly and functional administration of justice” requires that court orders be considered final and binding unless they are reversed on appeal . . . .
(Maybrun, at para. 2, quoting Litchfield, at p. 349)
As this Court noted in Maybrun, the rule against collateral attacks on court orders has been consistently applied in criminal proceedings where the charge involves an alleged breach of a court order (Maybrun, at para. 3, citing R. v. Domm (1996), 31 O.R. (3d) 540 (C.A.), at p. 547, leave to appeal refused, [1997] 2 S.C.R. viii). The rule has also been applied where the accused alleges that the court order is unconstitutional. In Domm, Doherty J.A., writing for the Ontario Court of Appeal, held that “[e]ven orders that are constitutionally unsound must be complied with unless set aside in a proceeding taken for that purpose” (p. 549). As this Court explained in Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, “[i]f people are free to ignore court orders because they believe that their foundation is unconstitutional, anarchy cannot be far behind. The citizens’ safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them” (para. 51, citing McLachlin J. (as she then was), in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, at p. 974).
[23] The doctrine of collateral attack, however, recognizes that people must have an effective means to challenge court orders, particularly when those orders are alleged to violate constitutional rights. In Domm, Doherty J.A. clarified that “where constitutional rights are implicated, the court must be particularly concerned about the availability of an effective remedy apart from collateral attack when considering whether” to allow a collateral attack (p. 552). Where a collateral attack is the only way to effectively challenge a court order, a collateral attack will be permitted (see Domm, at pp. 553-54).
[24] In sum, two principles underlie the approach to collateral attacks on court orders: (1) the importance of maintaining the rule of law and preserving the repute of the administration of justice; and (2) ensuring that individuals have an effective means to challenge court orders, particularly when these orders are challenged on the basis that they are not Charter compliant. As I will explain, the Maybrun framework accounts for these principles in the administrative context.
(2) Collateral Attacks on Administrative Orders
[25] In Maybrun, the Court held that a different framework was warranted for collateral attacks on administrative orders, given the major differences that exist between court orders and administrative orders in relation to their legal nature and the institutions that issue them (para. 4). Maybrun clarified that the question of whether a person charged with breaching an administrative order can collaterally attack the validity of the order is determined by focussing on the legislature’s intention. The court must inquire into whether the legislature intended to permit collateral attacks on the order, or intended instead that a person should challenge the order by way of other review mechanisms.
[26] In focussing on the legislature’s intention, the Maybrun framework balances two principles: (1) ensuring that the legislature’s decision to assign decision-making powers to administrative bodies is not undermined and (2) ensuring that individuals have an effective means available to them to challenge administrative orders (Maybrun at para. 44; see also B. Bilson, “Lying in Wait for Justice: Collateral Attacks on Administrative and Regulatory Orders” (1998), 12 C.J.A.L.P. 289, at pp. 291-94).
[27] Focussed as it is on the legislature’s intention as to the appropriate forum for challenging an administrative order, the Maybrun framework respects the legislature’s choice to assign decision-making powers to administrative bodies. The Court in Maybrun emphasized that admin