R. v. B.R.K., 2011 ABQB 746

GCourt of Queen ’ s Bench of Alberta Citation: R. v. B.R.K., 2011 ABQB 746 Date: 20111206 Docket: 090874066S1 Registry: Calgary Between: Her Majesty the Queen Appellant - and - B.R.K. Respondent Restriction on Publication: No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act . See the Youth Criminal Justice Act , s. 110(1) . No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person.

See the Youth Criminal Justice Act , s. 111(1) . Corrected judgment: A corrigendum was issued on January 12, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________

Memorandum of Decision of the Honourable Madam Justice J. Strekaf _______________________________________________________ I. Introduction [ 1 ] The issue on this appeal brought by the Crown is whether a sentencing judge can validly delegate the setting of a curfew to a probation officer. II. Background [ 2 ] B.R.K. was sentenced to an 18 month probation order on February 12, 2009. Condition 11 of the order stated: During the term of this order, you will be inside your home and property, limits as follows: (

a) you will follow the curfew that will be imposed by your Probation Officer in consultation with your Child and Family Services Caseworker. ... [ 3 ] On March 4, 2009 B.R.K.’s probation officer and Child and Family Services caseworker decided that his curfew would be 9:00 pm. B.R.K. was informed of the curfew and was directed to reside at the Bowness Group Home in Calgary.

On May 29, 2009 B.R.K. left the Group Home after his curfew, without permission, and returned on May 31, 2009. [ 4 ] B.R.K. was charged under s. 137 of the Youth Criminal Justice Act , S.C. 2002, c. 1 ( YCJA ) with willfully failing and refusing to comply with a term of a sentence imposed under the YCJA requiring him to follow the curfew imposed by his probation officer in consultation with his Child and Family Services caseworker. [ 5 ] At trial, B.R.K. argued that the curfew term in the probation order was unenforceable as it was an improper delegation to the probation officer of a judicial function.

The Crown argued that the delegation was proper and that B.R.K. was attempting a collateral attack on the condition. [ 6 ] The Trial Judge dismissed the charge stating: Okay. I am satisfied, despite the very interesting arguments of the Crown, and the very good argument, that in this case the case referred to by the Crown, R. v. K. C. , that facts of that case are distinguishable from the facts of this case. I think there’s a clear distinction to be made between delegation of writing an apology letter that meets the approval of the probation officer, or to reside as directed, or to go to counselling.

I think those particular items are not intended to be punitive, whereas the setting of a curfew is a punitive, I believe in most cases, function. Here I do find that it was an improper delegation of judicial function. I believe it did cross the line, and I am satisfied that I would find it to be unenforceable. I would agree with the defence in this case with respect to the collateral attack. I do not believe that it should be raised in this case, and I

do not believe it has any merit in the case before me. III. Standard of Review [7] The standard of review on a

summary conviction appeal brought by the Crown is correctness for errors of law, and palpableand overriding error for errors of fact or of mixed fact and law. IV. Issues [8] The issues on this appeal are whether the trial judge erred in finding that: (

a) the doctrine of collateral attack was not applicable, and (

b) the imposition of a curfew to be set by the probation officer was an impermissible delegation of a judicial function. V. Analysis A. Does the doctrine of collateral attack apply? [9] The doctrine of collateral attack was described by Iacobucci, J. in R. v. Litchfield, (SCC), [1993] 4 S.C.R.333 at 348. This rule holds that “a court order, made by a court having jurisdiction to make it” may not be attacked “in proceedings other than thosewhose specific object is the reversal, variation, or nullification of the order or judgment” (R. v. Wilson, (SCC), [1983] 2S.C.R. 594, per McIntyre J., at p. 599).

The lack of jurisdiction which would oust the rule against collateral attack would be a lack ofcapacity in the court to make the type of order in question, such as a provincial court without the power to issue injunctions. However,where a judge, sitting as a member of a court having the capacity to make the relevant type of order, erroneously exercises thatjurisdiction, the rule against collateral attack applies. See, e.g., B.C. (A.G.) v. Mount Currie Indian Band (1991), (BCSC), 54 B.C.L.R. (2d) 129 (S.C.), at p. 141, and R. v. Pastro (1988), (SK CA), 42 C.C.C. (3d) 485 (Sask.

C.A.), at pp.498-99, per Bayda C.J.S. Such an order is binding and conclusive until set aside on appeal. The rule against collateral attack has been re-affirmed by this Court on numerous occasions, such as in R. v. Meltzer, (SCC), [1989] 1 S.C.R. 1764, R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, and Canada (Human Rights Commission) v.Taylor, (SCC), [1990] 3 S.C.R. 892, per McLachlin, J. at p. 973, citing R. J.

Sharpe, Injunctions and SpecificPerformance (1983). [10] In Litchfield, the Court concluded that the rule against collateral attack should not be applied in the context of a division andseverance order granted in a criminal trial where the effect of applying the rule would be that the order would otherwise not beappealable. Iacobbuci, J. explained at 349:

In my opinion, however, this is not the case for a strict application of the rule against collateral attack which was not intended toimmunize court orders from review. The rationale behind the rule is powerful: the rule seeks to maintain the rule of law and to preservethe repute of the administration of justice. To allow parties to govern their affairs according to their perception of matters such as thejurisdiction 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 (R. v. Pastro, supra, at p. 497). However,these principles behind the rule against collateral attack are not applicable in the case of a pre-trial division and severance order. [11] By contrast, this case is one where there is no reason not to apply the doctrine. In this case B.R.K. could have appealed theprobation order or sought a review of the order pursuant to s. 59 of the YCJA.

An arguably impermissible delegation of authority by asentencing judge is not the type of jurisdictional error that permits a party to legally challenge a probation clause after violating the order.Several courts have recognized that the collateral attack doctrine applies to challenges to probation orders: R. v. C.(D.), 2010 SKPC 132at paras. 65-69, R. v. Coppola, 2007 ONCJ 184 at para. 7-10, R. v. Desjarlais, 2005 NWTTC 13 at paras. 7-10, R. v. H.(D.A.), 2005ABQB 404 at paras. 36-41, and R. v. Reed (1994), (BC CA), 24 C.R.R. (2d) 163 (B.C.

C.A.). [12] The Trial Judge’s conclusion that the collateral attack doctrine did not apply constituted an error of law, and the Crown’sappeal is allowed. However, the Court was advised during argument that the Crown would not seek any redress against the Respondentif the appeal was allowed. Rather, the Crown’s interest in bringing the appeal forward was to seek guidance from the Court on thesubstantive question as to whether the imposition of a curfew by a probation officer was an impermissible delegation of a judicialfunction.

Consequently, though it does not bear on the outcome of this case, the Court’s analysis on that question follows. B. Was the imposition of a curfew to be set by the probation officer an impermissible delegation of a judicial function? [13] Various courts have recognized that a line that must be drawn between the appropriate delegation of supervisoryresponsibility to a probation officer and the impermissible delegation of a judicial function, in the context of probation orders imposedboth under the Criminal Code and on young offenders under the Youth Criminal Justice Act and its predecessor legislation. [14] The

preamble to the YCJA recognizes the importance of a multi-disciplinary approach in dealing with young offenders andstates in part: whereas communities, families, parents and others concerned with the development of you persons should, through multi-disciplinaryapproaches, take reasonable steps to prevent youth crime by addressing its underlying causes, to respond to the needs of young persons,and to provide guidance and support to those at risk of committing crimes; ... [15] Section 42(2)(

k) of the YCJA provides that one of the sanctions that a youth justice court may impose when sentencing is to“place the young person on probation in accordance with ss. 55 and 56 (conditions and other matters related to probation orders) for aspecified period not exceeding two years”. [16] Section 55(2) of the YCJA states: A youth justice court may prescribe, as conditions of an order made under paragraph 42(2)(

k) or (l), that a young person do one or moreof the following that the youth justice court considers appropriate in the circumstances: (

a) report to and be supervised by the provincial director or a person designated by the youth justice court; (

b) notify the clerk of the youth justice court, the provincial director or the youth worker assigned to the case of any change ofaddress or any change in the young person’s place of employment, education or training; (

c) remain within the territorial jurisdiction of one or more courts named in the order;

(

d) make reasonable efforts to obtain and maintain suitable employment; (

e) attend school or any other place of learning, training or recreation that is appropriate, if the youth justice court is satisfied that asuitable program for the young person is available there; (

f) reside with a parent, or any other adult that the youth justice court considers appropriate, who is willing to provide for the careand maintenance of the young person; (

g) reside at a place that the provincial director may specify; (

h) comply with any other conditions set out in the order that the youth justice court considers appropriate, including conditions forsecuring the young person’s good conduct and for preventing the young person from repeating the offence or committing other offences;and (

i) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosivesubstance, except as authorized by the order. [17] The issue of how to draw the line between administrative/supervisory functions and judicial functions was considered by theManitoba Court of Appeal in R. v. Traverse, 2006 MBCA 7, 205 C.C.C. (3d) 33 at paras. 30-33. With respect to the issue of improper delegation, the basic principle is well known and can be stated easily enough. Simply,administrative functions can be delegated in a probation order, but judicial functions cannot. See Sterner v.

Vander Kracht, (SCC), [1982] 1 S.C.R. 173. A court can delegate some administrative functions to the probation officer so as to allow forsupervision of the probationer and implementation of some probation conditions. The task in each case is the determination whether thedelegation is of a judicial or administrative function, and it is often a difficult task. See Clayton C. Ruby, Sentencing, 6th ed. (Toronto:Butterworths, 2004) at para. 10.82.

So, for example, if the court determines that an accused is to perform 100 hours of community service, it is appropriate to delegate to theprobation officer the details of determining the location and type of work. See R. v. Tanner, (MB PC), [1983] 6W.W.R. 208 (Man. Prov. Ct.). The imposition of the program is for the judge to determine, but the day-to-day supervision can bedelegated to Probation Services, who have the necessary expertise to adapt the program of rehabilitation to the needs of the accused.

It isunrealistic and impractical to expect the trial judge to foresee every nuance in the carrying out of terms of probation. However, fundamentally, it is for the judge to determine generally the conditions under which the accused is to serve his/her probationorder. So, a condition that required a young person to “[l]ive with mother and obey rules and curfew” was held to be not only too vague to beenforced, but also, as the actual terms were to be “fleshed out by someone else by way of delegation, it is over the line fromadministrative into judicial functioning.” See R. v.

F.(P.D.) (1987), (ON CJ), 57 C.R. (3d) 22 at 28 (Ont. Prov. Ct.).Similarly, in an oft-cited and early decision, R. v. Beam (1954), (ON CA), 109 C.C.C. 381 (Ont. C.A.), the impugnedprovision ordered the accused "from time to time promptly and faithfully obey the directions of the Probation Officer as to his habits oflife and mode of living, and that he will work steadily." Pickup C.J.O. held that "the learned Magistrate was delegating to the ProbationOfficer the power to decide what habits of life and mode of living the appellant must follow during the period of his probation" (at p.382).

See also, M.J.L., Re (1990), 112 A.R. 231 (Prov. Ct.), where a condition was struck out which directed the accused to abide by"house rules," and R. v. Zarubin (G.) (1994), (SK CA), 123 Sask.R. 161 (C.A.), which struck out a condition thatordered the "accused be assessed for anger management and follow instructions which may be prescribed" [emphasis in original].

[18] The majority in Traverse concluded that a term of a probation order that required the offender to cooperate with and complywith the direction of the Criminal Organization/High Risk Offender Unit was both too vague and an improper delegation of judicialauthority. At para. 30 Steele J.A. made the following remarks. This is different than an order which instructs the accused to follow the rules of a treatment program. Presumably, those rules andregulations of an institution are something that can be determined in advance and with certainty.

Here, this is not simply a case ofCOHROU supervising the accused’s compliance with the conditions ordered by the judge.

Here, one assumes, the accused is ordered tofollow the directions of staff members of COHROU as they might vary from time to time and from individual to individual. [19] A distinction was drawn between terms in a probation order that delegated the setting of punishment, which was a judicialfunction (e.g. determining the total hours of community service or the curfew time), and terms that permitted flexibility to be exercised inthe performance of the punishment which was an administrative function: R. v. P.D.F. (1987), (ON CJ), 57 C.R. (3d)22 at 33 - 38 (Ont. Prov. Ct.) per Naismith, J.

I find the annotation by Professor Don Stewart which accompanied the report of R. v. Tanner to be of assistance. He noted that there is"some uncertain point which the Court should not delegate" [p. 65]. He explored the extent to which probation terms amount tointervention and noted that there is a significant difference, for example, between 100 hours and 200 hours of community service. Theimplication is that setting the amount of community service is a judicial act; it is establishing the extent of punishment, and should not bedelegated.

I think this approach makes sense in trying to find the line for proper delegation of details in a probation term. One should ask: “Isthe sentencing power being delegated to a third party?” Just as one can say that there is a large difference between 100 and 200 hours ofcommunity service, one can say there is a large difference between a curfew which amounts to virtual house arrest for a youth and acurfew which is very lax. The latter may be of no consequence at all and the former may be extremely intrusive. In that context, thesetting of the curfew is punitive and it is a judicial function.

In that light, I think many of the probation terms we accept and use daily are on very thin ice when it comes to the test of enforcing themthrough a charge of non-compliance. A sentencing judge should be wary about delegating the setting of punishment to someone else andwould be well advised to set the upper limits of any terms of probation which have a punitive element. There is a great differencebetween adding punishment, on the one hand (surely a purely juridical function) and granting relief from certain punishment, whichtends to be more of an administrative function.

In my view, the overall sentencing structure of the Young Offenders Act is consistent with the judge setting the limits ofpunishment and intervention (e.g., the total hours of community service) while allowing flexibility by delegating some relief from thosepunitive limits and by delegating the administrative details such as where the community service is performed and when, etc.: see R. v.Tanner (supra). For reporting to a probation officer, this probably means setting a frequency of reporting that can be relieved by the probationofficer.

For example: “Report once per month or such lesser amount as the probation officer requires”. For curfews, which is the subject of analysis here, the judge should set the curfews and then provide for relief or exceptions to beapproved by the probation officer or possibly by a parent. [20] The Crown argues that the Trial Judge erred in characterizing the imposition of a curfew as punitive. I disagree.

While thereare rehabilitative aspects to curfews, there is a very significant difference from the offender’s perspective between a modest curfew andone that constitutes virtual house arrest. [21] I am of the view that it is a judicial function to determine the maximum amount of curfew that can be imposed on a youngperson, pursuant to s. 55(2)(

h) of the YCJA, but that it would be permissible for the court to grant a probation officer the flexibility topermit exceptions to that curfew as part of their supervisory role, pursuant to s. 55(2)(a).

[ 22 ] The Trial Judge made no legal error in concluding that delegating the setting of a curfew was an improper delegation of a judicial function. VI. Disposition [ 23 ] The Crown’s appeal is allowed. The Crown advised at the outset of this hearing that the charges would be stayed if the appeal was successful. In these circumstances, there is no need to order a new trial. Heard on the 8 th day of September, 2011. Dated at the City of Calgary, Alberta this 6th day of December, 2011. J. Strekaf J.C.Q.B.A.

Appearances: Ian McNich Youth Criminal Defence Office for the Respondent Kyra Kondo Crown Prosecutor’s Office for the Crown _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice J. Strekaf _______________________________________________________

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