A former convict has lost his bid to collaterally attack a parole board residency condition that was made as part of a long-term supervision order, in a unanimous Supreme Court decision that marks the first time the high court has looked at the rules governing collateral attacks when a Charter breach is alleged.
The case was sent back to the provincial court in Saskatchewan to decide on a sentence.
“[W]here an effective forum or mechanism is available for challenging an order, and a person takes issue with the order only after breaching it, he or she has not been denied the ability to fully defend against the charge if a collateral attack is refused,” Justice Michael Moldaver wrote, with Chief Justice Richard Wagner and Justices Rosalie Abella, Suzanne Côté, Russell Brown and Malcolm Rowe concurring.
“This is because the person had the opportunity to challenge the validity of the order through other means but failed to do so.”
The appellant had a lengthy criminal record dating back to 1983, comprising about 63 convictions including 12 for violent offences. On May 27, 2005, following convictions for assault with a weapon and theft under $5,000, he was declared a long-term offender, and received a prison sentence of 54 months followed by a five-year period of supervision.
Bird, who is a member of the Ahtahkakoop Cree Nation, wanted to return to his reserve in northern Saskatchewan to live with his brother during his supervision period; however, Saskatchewan’s Correctional Services recommended that he instead reside in a community correctional facility. The parole board accepted that recommendation, though indicated in a letter that Bird could apply for a change to his residency requirement.
On Aug. 14, 2014, the date of Bird’s statutory release (delayed as he had been convicted of other offences in the interim), he was transported to Oskana Centre in downtown Regina, where he lived until his warrant expiry date of Jan. 7, 2015, at which time his long-term supervision order (LTSO) commenced.
Oskana Centre is known as a half-way house; it is a community correctional centre, which is legally defined as a penitentiary, says Bird’s lawyer, Leif Jensen of Community Legal Assistance Services for Saskatoon Inner City Inc. Residents have a curfew and are required to be at the centre for lunch from 11 a.m. to 1 p.m. On Jan. 28, 2015, Bird left the centre and didn’t return.
Apprehended more than two months later, he was charged with breaching residency conditions and went to trial. Bird defended himself on the basis that his residency condition was a breach of his Charter rights, and so he couldn’t be convicted of a crime on that basis. He argued that he had served his entire sentence and yet had the same restrictions as the other community correctional centre residents, who were mostly parolees. He made a collateral attack against the order of the parole board, and Charter challenges under sections 7, 9 and 11. The trial judge agreed and dismissed the charge, finding the residency requirement to be a violation of s. 7 of the Charter on the basis that it obliged Bird to live in a penal institution even though he had completed his prison term. The Court of Appeal allowed the Crown’s appeal and entered a conviction.
The questions before the Supreme Court were, first, whether Bird could attack the residency requirement under the Charter, and second, if a collateral attack was allowed, whether the residency requirement infringed s. 7, or s. 9 and 11(h) of the Charter.
" … I agree with the Court of Appeal that Mr. Bird was not permitted to collaterally attack the residency condition of his LTSO,” wrote Justice Moldaver for the majority. “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,” Justice Moldaver wrote.
Two principles underlie the approach to collateral attacks on court orders, Moldaver noted in his reasons. The first is the importance of maintaining the rule of law and preserving the repute of the administration of justice; the second is 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. The framework set out by the Supreme Court in R. v. Consolidated Maybrun Mines Ltd.,  1 S.C.R. 706] accounts for these principles in the administrative context, which applied to this case.
The majority concluded that Parliament did not intend to permit collateral attacks in circumstances such as those existing in this case, where the appellant had a right to appeal his residency conditions but did not do so.
In separate reasons Justice Sheilah Martin, with Justices Andromache Karakatsanis and Clément Gascon concurring, found that Bird should have been allowed to challenge the residency condition at his criminal trial for breaching that condition. However, she would have dismissed the appeal because, she found, the residency condition was not unconstitutional in the way that Bird had argued it was.
Leif Jensen, the appellant’s lawyer, told Legal Feeds that it was interesting to see the dialogue between the majority and minority around access to justice, “in the context of folks who’ve been in prison for a lengthy period of time,” and their access to remedies such as habeas corpus. The minority reasons also addressed access to justice issue, Jensen points out.
“I agree with Mr. Bird and certain interveners that it is questionable that someone in Mr. Bird’s circumstances would have the resources to secure counsel or the capacity to be self-represented for the purpose of navigating the judicial review process,” Justice Martin noted in her reasons. “Mr. Bird received no notification from the [Parole] Board about the possibility of judicial review. Mr. Bird only obtained counsel in his criminal proceedings once a judge determined that his case was complex and raised important constitutional questions; no such opportunity is likely to have been available to Mr. Bird on judicial review.”
Implicit in such cases is that those facing similar criminal charges will most likely be making habeas corpus applications without benefit of counsel, says Jensen, adding that he has noticed a trend in provincial superior courts to awarding costs against habeas corpus litigants, which it has increasingly seen as vexatious litigants. “It seems that fundamentally, a lot of this decision came down to what access to justice means,” Jensen notes.
In a statement to Legal Feeds, a spokesman for Saskatchewan’s Ministry of Justice wrote the following:
"The Supreme Court decision maintains the status quo for the procedure for review of long-term supervision orders and also maintains the full range of residence options for long-term and dangerous offenders on long-term supervision orders.
"The decision protects the public from the risk posed by dangerous and long-term offenders by requiring those offenders to object to the conditions of their long-term supervision in advance, rather than by 'breaching first, challenging later.’”