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CRIMINAL CODE OFFENCES - Breach of long-term supervision order

Friday, February 08, 2019 @ 2:14 PM  


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Appeal by Bird from a judgment of the Saskatchewan Court of Appeal setting aside his acquittal on the charge of breaching the residency condition imposed on him by the Parole Board of Canada (Parole Board) under a long-term supervision order (LTSO). 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. Less than a month after the supervision commenced, Bird breached the residency condition and was charged under s. 753.3(1) of the Criminal Code. 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 rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms (Charter). The trial judge accepted this argument and acquitted Bird, finding that the residency condition was invalid. On appeal, the Court of Appeal for Saskatchewan unanimously rejected this finding, entered a conviction and remitted the matter to the Provincial Court for sentencing. The appeal required the Court to revisit the Maybrun framework and to decide whether Bird could collaterally attack the residency condition imposed by the Parole Board on his LTSO in defending against a criminal charge of having breached that condition.

HELD: Appeal dismissed. Two principles sustained the approach to collateral attacks on court orders. The first was the importance of maintaining the rule of law and preserving the repute of the administration of justice. The second was ensuring that individuals had an effective means to challenge court orders. The Court had to 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. To determine the legislator’s intention as to the appropriate forum for challenging the validity of an administrative order, Maybrun identified five non-exhaustive factors that could be considered. The Court rejected a “breach first, challenge later” approach to allow offenders like Bird to object to conditions of their LTSOs. The wording of the statute under which the order was issued and the purpose of the legislation strongly indicated that Parliament did not intend for long-term and dangerous offenders to take issue with residency conditions of long-term supervision through collateral attacks. Bird had at least two, and possibly three, viable mechanisms which could have provided him with an effective means to challenge the residency condition. The remedy of habeas corpus was available. Habeas corpus was designed to provide swift and easily accessible relief to persons challenging a deprivation of their liberty. The fact that Bird’s challenge raised constitutional issues did not mean that it raised considerations foreign to the Parole Board’s experience and expertise. In sum, the majority of Maybrun’s factors strongly indicated that Parliament did not intend to permit collateral attacks in such circumstances. The argument that the residency condition infringed Bird’s Charter rights was not considered. The Court of Appeal properly set aside Bird’s acquittal, entered a conviction on the charge of breaching the LTSO under s. 753.3(1) of the Criminal Code and remitted the matter to the Provincial Court for sentencing.

R. v. Bird, [2019] S.C.J. No. 7, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., February 8, 2019. Digest No. TLD-February42019011-SCC