Collateral Attacks: R v Bird Limits Collateral Attacks against Long Term Supervision Orders for Offenders
When an individual is placed on a Long Term Supervision Order (“LTSO”) as a result of a criminal proceeding, they are required to follow conditions set by the Parole Board. These can include residency conditions, such as requiring an individual stay in a community correctional centre, commonly referred to as a “halfway house”. Section 131.1(2) of the Corrections and Conditional Release Act, S.C. 1992 c.20 (the “CCRA”) permits the Parole Board to establish conditions for LTSOs that it considers “reasonable and necessary” to protect society and facilitate an offender’s rehabilitation.
Mr. Bird, who was placed on a LTSO in 2005 following a conviction for assault with a weapon and theft under $5,000, was required to stay in a secure halfway house by the Parole Board on the recommendation of the Correctional Service of Canada (the “CSC”). Mr. Bird was living at the Oskana Centre, a halfway house, but left the facility and did not return. After two months, he was apprehended by police and charged with breaching the terms of his LTSO. Mr. Bird challenged the validity of the residence condition of his LTSO on two grounds: First, he argued the Parole Board did not have the statutory authority to impose such a condition. Second, he asserted that the LTSO violated his section 7 Charter rights by forcing him to live in a community correctional centre after he served his sentence in a federal correctional institution.
The central issue in R v Bird, 2019 SCC 7 (“Bird“) was whether Mr. Bird was permitted to challenge his LTSO through a collateral attack. Ordinarily, if one wishes to challenge the conditions of a court order, they have to appeal the order. A collateral attack occurs when a party bound by an order seeks to avoid compliance with that order by challenging its validity. Collateral attacks on LTSOs are generally not permitted, but courts may allow collateral attacks to ensure that individuals have the ability to seek relief from the court order.
At trial, Mr. Bird challenged his LTSO’s requirement that he remain in a community correctional centre on the basis that it was not within the statutory authority of the Parole Board and violated his section 7 Charter rights. The trial judge allowed the challenge and determined that the collateral attack was permissible. More specifically, the trial judge concluded that the LTSO imposed on Mr. Bird breached his section 7 Charter right to liberty and was outside of the statutory authority of the Parole Board, which was not entitled to require that Mr. Bird live in a penal institution.
On appeal, the Saskatchewan Court of Appeal (“SKCA”), determined that the trial judge erred in permitting a collateral attack on the conditions of the LTSO based on the framework set out in R v Consolidated Maybrun Mines Ltd,  1 S.C.R 706 (“Maybrun”). Maybrun established a framework for courts to balance the need for administrative decisions to be challenged through proper channels and the rights of individuals to have effective means to challenge administrative orders. Maybrun requires courts to balance a number of factors to determine whether an individual should be ppermitted to bring a collateral attack before a court. The SKCA found that where there are alternative effective means of challenging the terms and conditions of an LTSO (through, for example, a request to the Parole Board or an application for habeas corpus before the Superior Court) a collateral attack will not be appropriate. Thus, as Mr. Bird was not permitted to launch a collateral attack on the LSTO, the merits of his challenge to the LTSO were not evaluated.
The Supreme Court Decision
At the Supreme Court of Canada (the “SCC” ), the Court unanimously held that Mr. Bird’s residency requirement was valid. However, the Court split on whether individuals are entitled to launch a collateral attack on the terms and conditions of a LTSO.
The Majority Decision
In his reasons for the majority, Justice Moldaver held that collateral attacks on legislation are not permitted by balancing the factors set out in Maybrun, which are: (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’etre of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply with the order (Bird, para 32). Weighing the factors, Justice Moldaver was especially concerned with whether Parliament intended to allow collateral challenges of LTSOs by assessing the raison d’etre of other available avenues for appeal.
In assessing the first and second factors from Maybrun, the Court found that LSTOs are exceptional orders that are given to offenders who have extensive and violent criminal histories. The purpose of the LTSO regime is to ensure public safety and assist with the rehabilitation and reintegration of offenders. Collateral attacks on LSTOs could establish a framework where offenders breach their orders and subsequently challenge the validity of the order. Justice Moldaver held that this could pose a risk to public safety where, as in this case, an individual with an LTSO is at large for an extended period of time before being arrested by police. As such, both the wording and wording of the legislation that granted authority to the Parole Board to impose residency requirements as part of a LTSO indicates that a collateral attack would frustrate the purpose of the legislation (Bird, para 43).
In assessing the third Maybrun factor, the majority noted that although there is no mechanism to appeal the conditions of an LTSO within the CCRA, there are three avenues Mr. Bird could have taken to vary the residence condition of his LTSO: 1) a written request to the Parole Board; 2) an application for review from the Federal Court (though they concede that this may not be an effective remedy); and 3) an application for habeas corpus in the provincial superior court. Justice Moldaver further held that the availability of alternative medies through other channels suggested that Parliament did not intend to permit collateral attacks in these sorts of cases (Bird, para 74). Because of the availability of these remedies, the third Maybrun factor supported the finding that collateral attacks should not permitted against LTSOs
In assessing the fourth factor, Justice Moldaver examined the purpose and expertise of the Parole Board. The majority determined that Mr. Bird’s challenge to the residence requirements of the LTSO “fall squarely within the expertise of the Parole Board” (Bird, para 80). Furthermore, the provincial court would have the expertise to address Mr. Bird’s challenge of his LTSO in a habeas corpus proceeding. For this reason, the majority concluded, a collateral challenge should not be permitted.
On the final and fifth factor, the majority conceded that the significant penalty for breaching an LTSO (up to ten years of incarceration) suggests that a collateral challenge should be allowed. However, the combination of the other four factors on balance weighed in favour of prohibiting the collateral challenge in this case. The majority therefore found that Mr. Bird could not bring forward a collateral challenge against his LTSO. Accordingly, the majority did not discuss the merits of Mr. Bird’s collateral challenge (Bird, para 83).
The Concurring Judgement
The concurring judgment, written by Justice Martin, concurred in the result denying Mr. Bird’s appeal, but allowed for a collateral challenge, denying the appeal on the merits of Mr. Bird’s challenge to the LTSO itself.
Where Justice Martin diferred in her application of the Maybrun factors is on the third and fifth factors. She began her judgment by expressing skpeticism toward the majority’s concern that allowing collateral challenges in cases such as this would create a “breach first, challenge later” approach to challenging LTSOs and other court order (Bird, para 108).
In assessing the third factor of the Maybrun analysis, Justice Martin explained that although section 132.1(4) of the CCRA allows for the possibility of reconsideration by the Parole Board, it is not enough to simply end the analysis here. Instead, there must be an evaluation of whether it provides an “effective avenue for adjudicating Mr. Bird’s claim and providing a suitable remedy” (Bird, para 119). According to Justice Martin, while the Parole Board may have expertise in dealing with release and community supervision, it is not clear that the Parole Board would be able to consider “questions of law and make orders that respect the Charter” (Bird, para 122). Furthermore, there is no indication that Parliament intended for the Parole Board to be able to determine questions of law relating to Charter rights.
Justice Martin was also concerned with the majority’s broad understanding of the avaiability of alternative remedies (Bird, para 129). For Justice Martin, a remedy must be effective at addressing the issues and accessible to those who seek a remedy. It is not enough for an alternative remedy to be merely available. The availability of habeas corpus on its own is not the same as a comprehensive legislative mechanism for appeal. Justice Martin additionally held that relying on habeas corpus as the sole judicial remedy available creates as a “paradoxical implication”. The less the LTSO impacts the liberty of an offender, the more likely it is that said offender will be permitted to engage in a collateral attack; but LTSOs which are more restrictive of an offender’s liberty rights will likely not be open to a collateral attack (Bird, para 135).
In assessing the fifth Maybrun factor, Justice Martin found the penalty for breaching a LTSO to be substantial, and that failing to allow a collateral challenge presents additional rule of law concerns when potential criminal defences are barred. Therefore, Justice Martin concluded, the collateral challenge in this case ought to be allowed.
However, Justice Martin ultimately found that the claims made by Mr. Bird failed on their merits. Although the legislation considers a community correctional facility a “penitentiary”, the definition of penitentiary made out in the legislation is broad enough to encompass many types of secure facilities and is not restricted to federal correctional institutions. Therefore, the Parole Board is entitled by statute to impose requirements that individuals stay in halfway houses, even though they cannot require an individual stay in secure federal correctional centres.
Regarding Mr. Bird’s section 7 Charter claim that his liberty rights were infringed, Justice Martin held that the exercise of state discretion limiting Mr. Bird’s liberty was not arbitrary. In fact, LTSOs are exceptional sentences “reserved for individuals who pose an ongoing threat to the public” (Bird, para 151). Because of Mr. Bird’s extensive and violent criminal record, a LTSO that limited his liberty interests by requiring that he live in a community correctional facility was not a breach of his section 7 Charter rights.
Thus, while Mr. Bird was allowed to bring a collateral challenge to the terms and conditions of his LTSO, the Parole Board was ultimately entitled to require that he live in a halfway house since such a requirement did not violate Mr. Bird’s section 7 Charter rights.
I largely agree with Justice Martin’s concurring decision that the majority’s reliance on habeas corpus as an effective remedy ignores the possibility that LTSOs may violate Charter rights t unrelated to section 7 Charter liberty interests. For example, it is conceivable that restrictions on living arrangements may prohibit people from availing themselves of religious services, violating section 2(a)’s guarantee of freedom of religion. In that case, a habeas corpus application might not be available, and the individual would be left with little recourse. Although courts may allow a collateral challenge in such a case, the individual would still be forced to litigate the issue of whether a collateral challenge is appropriate in the circumstances. By forcing offenders to undertake additional litigation, there are serious access to justice concerns for offenders who have limited means to make a challenge to the terms of an LTSO.
Although allowing the collateral challenge certainly consumes judicial resources, there are serious concerns for the rule of law when criminal defendants are not given clear and accessible means to challenge orders that they believe are unconstitutional. In fact, if a court is allowed to determine the constitutionality of the terms and conditions of LTSOs, it may have the impact of reducing the need to litigate the issues over time, as the courts make determinations on the scope of the Parole Board’s discretion. In the case of a habeas corpus application, the court grants an individual remedy, and may not address relevant issues of statutory interpretation and legislative intent, which were relevant in Mr. Bird’s claims about his LTSO.
LTSOs are exceptional orders reserved for those with substantial violent criminal histories, but the Charter still protects these offenders. The majority’s concern that offenders would be required to breach their LTSOs in order to challenge them could be alleviated if Parliament granted authority to the Parole Board to hear constitutional challenges to the terms and conditions of an LTSO. In the absence of such a power, it is nevertheless inappropriate to leave criminal defendants facing substantial penalties without an effective means of raising a constitutional issue.
Without clear guidance from Parliament about the structure of appeals for the terms and conditions of LTSOs, courts should not deny the remedy of a collateral attack simply because there is another potentially workable framework available. It is clear that while habeas corpus might be an effective remedy in some instances, it is not likely to be an effective remedy when an interest other than liberty is at stake. Perhaps this decision may be an opportunity for Parliament to pursue the creation of an administrative regime to address the issues raised in this case, which can balance the need for quick and effective remedies while conserving judicial resources. Because the Parole Board has discretion to modify the terms and conditions within an order, a more formal mechanism by which an individual could request reconsideration or modification of the terms and conditions of an LTSO would provide a clearer answer on whether collateral attacks should be allowed, which, barring exceptional circumstances, would reduce the need to litigate these issues.