Focus On

CRIMINAL CODE OFFENCES - Breach of long-term supervision order

Friday, June 23, 2017 @ 8:45 AM  

Lexis Advance® Quicklaw®
Appeal by the Crown from Bird’s acquittal on a charge of violating a term of his long-term supervision. In May 2005, Bird was declared a long-term offender and ordered to serve a prison term followed by a period of long-term supervision. Bird was granted statutory release three times, and re-incarcerated for violating his release terms, before completing his prison term. When Bird left prison, the Parole Board placed a condition on the long-term supervision requiring Bird to reside at a community correctional centre, community residential facility or other residential facility approved by the Correctional Service of Canada (CSC) for a period of 180 days. The Parole Board had accepted the CSC’s conclusion that Bird’s plan to return to the Ahtahkakoop First Nation to reside with his brother was not sufficient to manage his risk in the community. Bird took up residence at Oskana Centre, a community correctional centre, in January 2015, but left before the end of the month and did not return. He was charged with breaching his long-term supervision order upon his apprehension in April 2015. He defended the charge by arguing that the residency requirement was unlawful. The trial judge agreed, finding the requirement to be a violation of s. 7 of the Canadian Charter of Rights and Freedoms (Charter) on the basis that it obliged Bird to live in a penal institution even though his prison term was complete. The judge found no statutory or regulatory authority for incarcerating Bird as part of his long-term supervision.

HELD: Appeal allowed. The trial judge erred in entertaining a collateral attack on the Parole Board’s decision to attach a residency condition to Bird’s long-term supervision. Questions about the legality of Parole Board orders were to be resolved in the Federal Court, not in trial courts across the country. The wording of the Corrections and Conditional Release Act, the Criminal Code and the Federal Courts Act indicated that Parliament intended offenders who objected to a condition of long-term supervision would ask the Parole Board to vary or remove the condition and/or seek to quash the condition in the Federal Court. The legislative language did not readily support the idea that an offender charged with breaching a condition of a supervision order should be able to challenge the lawfulness of the condition by way of his or her defence to the charge. Bird was aware of his opportunity to ask the Parole Board to remove or vary conditions of his long-term supervision, but made no such request. In light of the Court’s conclusion on the collateral attack issue, it was not necessary to address the merits of the trial judge's observations about the statutory vires of the Parole Board's order or his conclusion that the order breached s. 7 of the Charter. Bird's acquittal was set aside and a conviction was entered. The matter was remitted to the Provincial Court for sentencing.

R. v. Bird, [2017] S.J. No. 181, Saskatchewan Court of Appeal, R.G. Richards C.J.S., R.K. Ottenbreit and P.A. Whitmore JJ.A., May 5, 2017. Digest No. TLD-June192017010