Spencer Dean Bird Appellant v. Her Majesty The Queen, 2019 SCC 7

SUPREME COURT OF CANADA Citation: R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 Appeal Heard: March 16, 2018 Judgment Rendered February 8, 2019 Docket: 37596 Between: Spencer Dean Bird Appellant and Her Majesty The Queen Respondent - and - Attorney General of Canada, Attorney General of Ontario, Aboriginal Legal Services Inc., David Asper Centre for Constitutional Rights and Canadian Civil Liberties Association Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 87) Moldaver J. (Wagner C.J. and Abella, Côté, Brown and Rowe JJ. concurring) Concurring Reasons: (paras. 88 to 174) Martin J. (Karakatsanis and Gascon JJ. concurring) R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409

Spencer Dean Bird Appellant v. Her Majesty The Queen Respondent and Attorney General of Canada, Attorney General of Ontario, Aboriginal Legal Services Inc., David Asper Centre for Constitutional Rights and Canadian Civil Liberties Association Interveners Indexed as: R. v. Bird 2019 SCC 7 File No.: 37596. 2018: March 16; 2019: February 8.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for saskatchewan Criminal law — Administrative orders — Collateral attack — Accused charged criminally with breaching Parole Boardlong-term supervision order requiring that he reside at community correctional centre — Accused defending charge at trial on basis thatresidency condition was not within Board’s statutory authority and violated his constitutional right to liberty — Whether accused couldcollaterally attack residency condition — If so, whether residency condition arbitrary in respect of purpose of long-term offender regime— Canadian Charter of Rights and Freedoms, s. 7 — Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 134.1(2).

B was found to be a long-term offender and received a sentence comprised of a prison term and a period of long-termsupervision in the community. Pursuant to s. 134.1(2) of the Corrections and Conditional Release Act (“CCRA”), the Parole Boardimposed a residency condition as part of B’s long-term supervision order (“LTSO”). This condition required that he reside at acommunity correctional centre, community residential facility or other residential facility approved by the Correctional Service ofCanada. B was placed in Oskana Centre, a community correctional centre.

Less than a month after his long-term supervisioncommenced, B left Oskana Centre and did not return. He was eventually apprehended and charged with having breached the residencycondition of his LTSO. B defended the charge at trial on the basis that the residency condition of his LTSO was not within the Board’s statutoryauthority and violated his right to liberty under s. 7 of the Charter. The trial judge agreed and acquitted B, finding that the residencycondition was invalid.

The Court of Appeal rejected this finding, set aside B’s acquittal, entered a conviction on the charge and remittedthe matter for sentencing. B appeals, renewing his s. 7 Charter attack on the residency condition and raising for the first time that thecondition violates his Charter rights under ss. 9 and 11(h). Held: The appeal should be dismissed. Per Wagner C.J. and Abella, Moldaver, Côté, Brown and Rowe JJ.: B was not permitted to collaterally attack the residencycondition of his LTSO. Thus, it is unnecessary to consider whether the residency condition violates his Charter rights. In R. v.

Consolidated Maybrun Mines Ltd., (SCC), [1998] 1 S.C.R. 706, and in the companion case, R. v.Al Klippert Ltd., (SCC), [1998] 1 S.C.R. 737, the Court developed a distinct approach for determining whether aperson who is charged criminally with breaching an administrative order can collaterally attack that order. This determination is made byfocussing on the legislature’s intention: the court must inquire into whether the legislature intended to permit collateral attacks on theorder, or intended instead that a person should challenge the order by way of other review mechanisms.

In focussing on the legislature’sintention, the Maybrun framework balances two principles: (1) ensuring that the legislature’s decision to assign decision-making powersto administrative bodies is not undermined and (2) ensuring that individuals have an effective means available to them to challengeadministrative orders, particularly when these orders are challenged on the basis that they are not Charter compliant. In the Chartercontext, this means that the person challenging an order must be able to receive an effective remedy that will vindicate his or her Charterrights.

Where no such remedies are available, it must be inferred that the intention of the legislature is to permit a collateral attack.

Todetermine the legislator’s intention as to the appropriate forum for challenging the validity of an administrative order, Maybrun identifiesfive non-exhaustive factors that may be considered by a court: (1) the wording of the statute under the authority of which the order wasissued; (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 orraison d’être of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply with the order.

The factorsare not independent and absolute criteria, but important clues, among others, for determining the legislature’s intention. On balance, with the exception of the final Maybrun factor, the other factors strongly indicate that Parliament did not intendto permit collateral attacks in circumstances like those existing in this case. With respect to the first two factors, it would undermine thepurposes of long-term supervision if offenders were allowed to take a “breach first, challenge later” approach to the conditions of theirLTSOs.

The conditions of an LTSO are imposed to reduce to an acceptable level the elevated risk posed by long-term offenders and

dangerous offenders in the community. When offenders breach these conditions, they expose the public to this risk. Permitting a “breach first, challenge later” approach in this context undermines not only the community’s interests, but also those of the offenders, by compromising the offender’s rehabilitative prospects. This outcome is inconsistent with the objectives of the long-term supervision regime.

The third factor permits a court to consider not only the existence of a right of appeal to an administrative appeal tribunal, but also the existence of other effective mechanisms or forums for challenging the order at issue. Although there is no right of appeal under the CCRA from a decision of the Board concerning the conditions of an LTSO, the record indicates that there were mechanisms available to B that would have provided him with an effective means to challenge the residency condition.

He could have written to the Board to ask it to vary or remove the condition; he could have applied for judicial review in the Federal Court; and he could have applied to the provincial superior court for habeas corpus , a remedy that offers simplified procedures that promote greater accessibility by self-represented litigants and persons with limited means. Accordingly, B was not denied the ability to fully defend against the charge of breaching the residency condition, because he had the opportunity to challenge the Board’s order through these mechanisms.

The fourth factor permits a court to consider the nature of a collateral attack in light of the expertise or raison d’être of other mechanisms or forums for challenging the order. Where the nature of the collateral attack involves considerations that fall squarely within the expertise or raison d’être of a particular administrative body or other forum, this may be taken as an indication that Parliament wanted that body to decide the question, as opposed to permitting a collateral attack.

In the instant case, s. 134.1(2) of the CCRA gives the Board broad discretionary power to impose whichever conditions on long-term supervision it deems “reasonable and necessary to protect society and ensure the successful integration of the offender into society”. This provision demonstrates Parliament’s intention to rely on the expertise and experience of the Board in determining which conditions are needed in an LTSO to achieve the balance between public safety and the successful reintegration of the offender.

Therefore, if B asked the Board to reconsider its decision to impose the residency condition, the Board would consider matters that fall squarely within its expertise. The fact that B’s challenge to the residency condition raises constitutional issues does not mean that it raises considerations foreign to the Board’s experience and expertise. These issues would also not be unfamiliar to the Federal Court or to provincial superior courts hearing habeas corpus applications. Consequently, this factor indicates a legislative intention to have B resort to these mechanisms.

Lastly, the penalty for breaching a condition of an LTSO is significant. However, this final factor is not determinative. When it is viewed not in isolation, but in conjunction with the other factors, it is clear that it is not decisive of Parliament’s intention that B be permitted to collaterally attack the Board’s order.

Given that permitting a “breach first, challenge later” approach in this context would pose a real risk to public safety and that effective review mechanisms were available to B, Parliament did not intend that B should be able to circumvent these mechanisms and instead, challenge the residency condition only after breaching it. Rather, Parliament intended that these offenders would ask the Board to vary or remove the condition and/or, if judicial review in the Federal Court would not provide an effective remedy, apply for habeas corpus .

Per Karakatsanis, Gascon and Martin JJ.: B’s constitutional challenge to his LTSO residency condition should have been permitted at his trial for breach of that condition. Nevertheless, once permitted, B’s claim under s. 7 of the Charter should fail. B’s appeal should therefore be dismissed and his conviction upheld. There is agreement with the majority that the factors set out in Maybrun should be applied; however, there is disagreement on their application.

Unlike the collateral attacks in Maybrun and Klippert , B’s collateral attack puts his Charter rights in issue in light of the very real possibility of significant imprisonment. When these constitutional and carceral dimensions of B’s cases are examined, it is revealed that Parliament did not intend to prohibit B from challenging at trial the constitutional validity of a condition whose breach carries a maximum penalty of ten years’ imprisonment.

With respect to the first and second Maybrun factors, although the broad authority conferred on the Board by s. 134.1(2) of the CCRA does militate against collateral attacks on the Board’s LTSO decisions, allowing B’s collateral attack is not at odds with the purpose of the long-term offender regime. Permitting B to advance his constitutional challenge to his LTSO condition will not inspire or perpetuate a “breach first, challenge later” attitude among long-term offenders.

Framing B’s conduct as “breaching first, challenging later” shifts the focus from whether Parliament intended to allow long-term offenders to challenge LTSO conditions when charged with their breach, which is the correct question, to whether Parliament intended to permit LTSO breaches committed for the purpose of challenging the conditions breached. Of course Parliament would not intend to make collateral attacks available to those who flout their conditions in order to challenge them.

Further, and crucially, it is breaches of residency conditions, and not collateral attacks on those conditions, that pose a risk to society. When examining the third factor, the three options available to B for challenging the residency condition identified by the majority do not, either individually or in concert, provide effective recourse for adjudicating B’s Charter claim to the point of illustrating a legislative intent to bar B from arguing that the condition for which he faces a criminal charge is unconstitutional.

It cannot be said that Parliament prescribed any one of the three options as the particular forum for raising a constitutional challenge to an LTSO condition. Given their shortcomings, neither internal review by the Parole Board nor judicial review can constitute the only prescribed forum for adjudicating constitutional challenges to LTSO conditions.

Assuming its availability and Parliament’s awareness of it in this context, habeas corpus cannot serve as evidence that Parliament intended to bar collateral attacks on LTSO conditions; like a collateral attack, an application for habeas corpus represents an external attack on an LTSO residency condition which disregards the “administrative appeal process” contemplated by the CCRA . With respect to the fifth factor, the penalty upon a conviction under s. 753.3 of the Criminal Code is up to 10 years’ imprisonment.

To bar B’s attack on the constitutionality of the condition is to deny his defence at trial where he is facing a lengthy period of imprisonment. The general rule against collateral attacks flows from rule of law and administration of justice considerations, namely, that it is improper to bypass adjudicative processes established by the legislature. However, when criminal defences are barred in the face of severe sanctions, separate aspects of the rule of law and the administration of justice are clearly invoked.

The trial judge’s task in cases such as this is to ask whether full answer and defence considerations and fair trial rights outweigh rigid adherence to administrative structures, particularly where those structures are limited. B’s challenge to his residency requirement is the only defence he advanced. He could go to jail for a significant period of time without ever having the basis for that sentence — the residency

condition — reviewed by a court for constitutional validity. The prospect of someone in a situation like B’s mounting a meritoriousCharter claim, yet being ineligible for a corresponding remedy because of the forum in which the claim was advanced, is an affront toboth the administration of justice and the accused’s Charter-protected right to make full answer and defence. Accordingly, this factorweighs heavily in favour of finding that Parliament could not have intended a claim like B’s to be barred in these circumstances. Bshould be allowed to raise his constitutional defence at this time and in this forum.

With respect to B’s Charter claim, an infringement of liberty will be arbitrary in a manner that infringes s. 7 of the Charterwhere it bears no rational connection to the purpose of the governing law. Long-term supervision is a form of exceptional sentencereserved for individuals who pose an ongoing threat to the public and merit enhanced sentences on preventive grounds. The specificobjective of long-term supervision is to ensure that the offender does not reoffend and to protect the public during a period of supervisedreintegration into society.

The Parole Board’s broad discretion to set LTSO conditions under s. 134.1(2) of the CCRA is limited only bythe requirement that the conditions must aim at protecting society or facilitating the long-term offender’s reintegration into society. Thetext of the provision strongly supports the conclusion that the Board is authorized to impose residency requirements, and the purposes ofthe long-term offender regime are best achieved by interpreting s. 134.1(2) as authorizing the Board to order residency where it deemsfit, including in a community-based residential facility such as Oskana Centre.

Oskana Centre’s technical status as a “penitentiary” underthe CCRA does not detract from this conclusion, nor do the adjacent CCRA provisions which specifically address residency requirementsin other contexts. Accordingly, the text, context, and purpose of s. 134.1(2) confirm that the Board is empowered to set residencyconditions like the one imposed on B where they are reasonable and necessary to achieve the objects of the long-term offender regime.The residency condition in this case was informed by B’s specific circumstances.

Given those circumstances — which include asignificant history of failures to comply, substance abuse, and a long criminal record — and the purpose of s. 134.1(2) in the context ofthe long-term offender regime, B’s residency condition is not arbitrary under s. 7 of the Charter. B should not be permitted to raise claims under ss. 9 and 11(

h) of the Charter. While the Court has the discretion to hearnew constitutional arguments on appeal, this discretion should only be exercised exceptionally, taking into account all of thecircumstances, including the state of the record, fairness to all parties, the importance of having the issue resolved by the Court, itssuitability for decision and the broader interests of the administration of justice. B has not demonstrated that this is one of those rarecases that warrants this Court’s consideration of his new constitutional arguments on appeal. Cases Cited By Moldaver J. Applied: R. v.

Consolidated Maybrun Mines Ltd., (SCC), [1998] 1 S.C.R. 706; R. v. Al Klippert Ltd., (SCC), [1998] 1 S.C.R. 737; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809; Mission Institution v. Khela,2014 SCC 24, [2014] 1 S.C.R. 502; distinguished: Mooring v. Canada (National Parole Board), (SCC), [1996] 1S.C.R. 75; considered: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; referred to:Wilson v. The Queen, (SCC), [1983] 2 S.C.R. 594; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3S.C.R. 585; R. v.

Litchfield, (SCC), [1993] 4 S.C.R. 333; Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1S.C.R. 629; R. v. Domm (1996), (ON CA), 31 O.R. (3d) 540; Canada (Human Rights Commission) v. CanadianLiberty Net, (SCC), [1998] 1 S.C.R. 626; Canada (Human Rights Commission) v. Taylor, (SCC),[1990] 3 S.C.R. 892; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; Doucet-Boudreau v. Nova Scotia (Minister ofEducation), 2003 SCC 62, [2003] 3 S.C.R. 3; Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214; R. v.Steele, 2014 SCC 61, [2014] 3 S.C.R. 138; R. v.

Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936; R. v. Johnson, 2003 SCC 46, [2003] 2S.C.R. 357; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Quebec (Attorney General) v.Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223; D.G. v. Bowden Institution (Warden) et al., 2016 ABCA 52, 612A.R. 231; Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124; Ogiamien v. Ontario (Community Safety andCorrectional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220; R. v. Miller, (SCC), [1985] 2 S.C.R. 613; Normandinv.

Canada (Attorney General), 2005 FCA 345, [2006] 2 F.C.R. 112. By Martin J. Applied: R. v. Consolidated Maybrun Mines Ltd., (SCC), [1998] 1 S.C.R. 706; R. v. Al Klippert Ltd., (SCC), [1998] 1 S.C.R. 737; referred to: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809; Normandin v.Canada (Attorney General), 2005 FCA 345, [2006] 2 F.C.R. 112; R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333; McKartv. United States, 395 U.S. 185 (1969); Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; Canada (Attorney General) v. Bedford,2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v.

Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Rizzo & Rizzo Shoes Ltd.(Re), (SCC), [1998] 1 S.C.R. 27; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138; R. v. L.M., 2008 SCC 31, [2008] 2S.C.R. 163; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 7, 9, 10(c), 11(h), 24(1), (2). Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 2, 98, 99.1, 100, 133, 134.1, 134.2(1), 135.1, 147(1). Corrections and Conditional Release Regulations, SOR/92-602, s. 161(1).

Criminal Code, R.S.C. 1985, c. C-46, ss. 753(1)(a), (b), (4), (4.1), 753.1(1), (3), 753.2(1), 753.3. Federal Courts Act, R.S.C. 1985, c. F-7, ss. 18, 18.1. Federal Courts Rules, SOR/98-106, r. 8(1). Authors Cited

Bilson, Beth. “Lying in Wait for Justice: Collateral Attacks on Administrative and Regulatory Orders” (1998), 12 C.J.A.L.P. 289. Canada. Correctional Service. Commissioner’s Directive 706, “Classification of Institutions”, 2018. Clewley, Gary R., Paul G. McDermott and Rachel E. Young. Sentencing: The Practitioner’s Guide. Aurora, Ont.: Canada Law Book,1995 (loose-leaf updated May 2018, release 61). APPEAL from a judgment of the Saskatchewan Court of Appeal (Richards C.J. and Ottenbreit and Whitmore JJ.A.), 2017SKCA 32, 348 C.C.C. (3d) 43, [2017] 8 W.W.R. 684, [2017] S.J.

No. 181 (QL), 2017 CarswellSask 216 (WL Can.), setting aside theacquittal entered by Henning Prov. Ct. J., 2016 SKPC 28, 352 C.R.R. (2d) 248, [2016] S.J. No. 68 (QL), 2016 CarswellSask 94 (WLCan.) and entering a conviction. Appeal dismissed. Leif Jensen and Michelle Biddulph, for the appellant. Theodore Litowski, for the respondent. Sharlene Telles-Langdon, for the intervener the Attorney General of Canada. Deborah Krick, for the intervener the Attorney General of Ontario. Jonathan Rudin and Emilie N. Lahaie, for the intervener Aboriginal Legal Services Inc.

Breese Davies and Cheryl Milne, for the intervener the David Asper Centre for Constitutional Rights. Audrey Boctor and Olga Redko, for the intervener the Canadian Civil Liberties Association. The judgment of Wagner C.J. and Abella, Moldaver, Côté, Brown and Rowe JJ. was delivered by Moldaver J. — I. Overview [1] The general rule against collateral attacks on court orders is well-established: with limited exceptions, an orderissued by a court must be obeyed unless it is set aside in a proceeding taken for that purpose.

The rule has been consistently applied toprevent a person from attacking the validity of a court order when defending against a criminal charge stemming from its breach. In R. v.Consolidated Maybrun Mines Ltd., (SCC), [1998] 1 S.C.R. 706, and in the companion case, R. v. Al Klippert Ltd., (SCC), [1998] 1 S.C.R. 737, this Court developed a distinct approach for determining whether a person who is chargedcriminally with breaching an administrative order can collaterally attack that order.

In those decisions, the persons seeking to challengethe administrative orders did not allege that the orders infringed their rights under the Canadian Charter of Rights and Freedoms. [2] This appeal requires us to revisit the Maybrun framework in the context of a long-term offender, who has beencharged criminally for having breached the residency condition imposed on him by the Parole Board of Canada (“Parole Board”) under along-term supervision order (“LTSO”).

In particular, we are required to decide whether, in defending that charge, it was open to theappellant, Spencer Dean Bird, to collaterally attack the validity of the residency condition on the basis that it contravened his Charterrights. [3] Mr. Bird was found to be a long-term offender and received a sentence comprised of a prison term and a period oflong-term supervision in the community. Based in part on Mr. Bird’s lengthy history of violence and numerous failed conditionalreleases, the Parole Board imposed a residency condition as part of Mr. Bird’s LTSO.

This condition required that he reside at acommunity correctional centre, community residential facility or other residential facility approved by the Correctional Service ofCanada (“CSC”). CSC placed Mr. Bird in Oskana Centre, a community correctional centre. Less than a month after his long-termsupervision commenced, Mr. Bird left Oskana Centre and did not return. He was eventually apprehended and charged under s. 753.3(1)of the Criminal Code, R.S.C. 1985, c. C-46, with having breached the residency condition of his LTSO. [4] Mr.

Bird defended the charge at trial on the basis that the residency condition of his LTSO was not within theParole Board’s statutory authority and violated his s. 7 Charter rights. The trial judge accepted this argument and acquitted Mr. Bird,finding that the residency condition was invalid. On appeal, the Court of Appeal for Saskatchewan rejected this finding. In its view, thetrial judge impermissibly permitted Mr. Bird to collaterally attack the residency condition. The Court of Appeal set aside Mr.

Bird’sacquittal, entered a conviction on the charge under s. 753.3(1) and remitted the matter to the Provincial Court of Saskatchewan forsentencing. Mr. Bird now appeals to this Court. He renews his s. 7 Charter attack on the residency condition. Additionally, he raises forthe first time that the condition violates his Charter rights under ss. 9 and 11(h). [5] For reasons that follow, I agree with the Court of Appeal that Mr. Bird was not permitted to collaterally attack theresidency condition of his LTSO.

In view of that, I find it unnecessary to address the various Charter arguments he has raised in supportof his position that the residency condition is invalid. Accordingly, I would dismiss the appeal. II. Facts [6] Mr. Bird has a lengthy criminal history dating back to 1983. His criminal record consists of approximately 63convictions, including 12 convictions for violent offences.

[ 7 ] On May 27, 2005, following Mr. Bird’s convictions for assault with a weapon and theft under $5,000, Judge Ferris of the Provincial Court of Saskatchewan found him to be a long-term offender under s. 753.1(3) of the Criminal Code . He sentenced Mr. Bird to 54 months of imprisonment to be followed by a 5-year period of long-term supervision. Over the course of this sentence, Mr. Bird was placed on statutory release three times. On each occasion, his release was suspended for violating conditions, re-offending or allegedly re-offending. Mr.

Bird was eventually released on his long-term supervision order on June 21, 2013. Three days later, he was arrested and charged with possession of a weapon for a dangerous purpose, for which he eventually received a 12-month sentence. [ 8 ] CSC prepared an “Assessment for Decision” dated April 28, 2014, which assessed Mr. Bird’s statutory release plans in respect of the 12-month sentence he received on the weapon conviction. Mr. Bird’s plan was to return to Ahtahkakoop First Nation and live with his brother. CSC found that this plan was not sufficient to manage the risk Mr.

Bird posed to the community, noting that Mr. Bird had a “well established pattern of violence” and was “unable to abide by imposed conditions for any length of time” (A.R., vol. II, at p. 77). CSC determined that if a residency condition was not imposed, Mr. Bird would “present an undue risk to society” ( ibid. ). Accordingly, CSC recommended that Mr.

Bird reside at a community correctional centre or a community residential facility for the duration of his statutory release and for the first 180 days of his long-term supervision. [ 9 ] In its Pre-Release Decision dated July 15, 2014, the Parole Board took up CSC’s recommendation and imposed a condition that Mr. Bird reside at a community correctional centre, community residential facility or other residential facility (such as a private home placement) approved by CSC for the first 180 days of his long-term supervision.

This condition was imposed pursuant to s. 134.1(2) of the Corrections and Conditional Release Act , S.C. 1992, c. 20 (“ CCRA ”) , which permits the Parole Board to “establish conditions for the long term supervision of the offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender”. Echoing CSC’s concerns, the Parole Board reasoned that the residency condition was reasonable and necessary based on Mr.

Bird’s “lengthy history of violence causing physical harm” and his “inability to abide by the conditions that [were] imposed” on his conditional releases (A.R., vol. II, at p. 69). The Parole Board concluded that it was “satisfied that [Mr. Bird would] require the structure and supervision that only can be provided by a community correctional centre/community residential centre. Therefore, residency is imposed for 180 days” ( ibid .). [ 10 ] The Parole Board conveyed its reasons for decision to Mr. Bird under a cover letter dated July 24, 2014. The letter expressly advised Mr.

Bird that he could apply to the Board to be relieved of any of the conditions of his LTSO: You may apply to the Parole Board of Canada to be relieved of any of your conditions or request that the Board vary the terms of any of your conditions of Long Term Supervision Order . Upon receipt of your application and an updated report from your Parole Officer, with whom you should discuss your request, your file will be referred to the Board for voting and subsequently you will be advised of the outcome.

To ensure that your request receives complete consideration, please fully document the reasons for your request. [Emphasis added.] (A.R., vol. II, at p. 67) [ 11 ] On Mr. Bird’s statutory release date of August 14, 2014, he was transported to Oskana Centre where he lived until his warrant expiry date of January 7, 2015, at which time his LTSO commenced. That same day, Mr. Bird signed a Long-term Supervision Certificate prepared by CSC, which spelled out the special conditions of his long-term supervision, including a direction that he report to Oskana Centre.

The Certificate also included an acknowledgement, signed by Mr. Bird, that violating a condition of his long- term supervision without lawful excuse was an offence under s. 753.3(1) of the Criminal Code . [ 12 ] Oskana Centre is a community correctional centre, also known as a halfway house. It has established various conditions for persons who reside there, two of which include a nighttime curfew and a requirement that residents return to Oskana Centre from 11:00 a.m. to 1:00 p.m. Mr. Bird was expected to comply with those conditions. [ 13 ] On January 28, 2015, Mr. Bird left Oskana Centre and did not return.

The following day he was charged with breaching the residency condition of his LTSO under s. 753.3(1) of the Criminal Code . He remained at large for more than two months until April 16, 2015, when the police located him and placed him under arrest. III. Judgments Below A. Provincial Court of Saskatchewan , 2016 SKPC 28 , 352 C.R.R. (2d) 248 (Henning Prov. Ct. J.) [ 14 ] At his trial for breaching the residency condition of his LTSO, Mr.

Bird argued that the residency condition exceeded the Parole Board’s statutory authority and violated his s. 7 Charter rights. [ 15 ] The trial judge initially considered whether, in defending against the charge of breaching the residency condition, Mr. Bird could mount a collateral attack on the Parole Board’s decision to impose it. Applying the framework set out in Maybrun and Klippert , the trial judge determined that Mr. Bird could collaterally attack the order of the Parole Board. [ 16 ] The trial judge then considered whether the residency condition was valid.

He found that the decision of the Parole Board to impose the residency condition had the effect of placing Mr. Bird in Oskana Centre, a penal institution. In his view, such a condition was not authorized under the CCRA for LTSOs and it amounted to a significant breach of Mr. Bird’s rights under s. 7 of the Charter . Given his conclusion that the residency condition was unconstitutional, he concluded that Mr. Bird could not be convicted of breaching it. Accordingly, he dismissed the charge against Mr. Bird. B.

Court of Appeal for Saskatchewan , 2017 SKCA 32 , 348 C.C.C. (3d) 43 (Richards C.J. and Ottenbreit and Whitmore JJ.A.) [ 17 ] On appeal, the Crown argued that the trial judge erred in permitting a collateral attack on the Parole Board’s decision to impose a residency condition, and he further erred in determining that the residency condition violated s. 7 of the Charter .

[18] Chief Justice Richards, writing for a unanimous court, allowed the appeal. In his view, the trial judge erred inpermitting a collateral attack on the residency condition imposed by the Parole Board.

Considering the framework set out in Maybrunand Klippert and its focus on legislative intent, the Court of Appeal concluded that it was not the intention of Parliament to permitcollateral attacks on conditions imposed on LTSOs by the Parole Board. [19] Chief Justice Richards noted that allowing offenders to “breach first, challenge later” would tend to frustrate thepurposes of the long-term supervision regime (para. 57). He further observed that the Federal Court has exclusive supervisoryjurisdiction over Parole Board decisions and that an offender may ask the Parole Board to vary or remove any condition.

Although asubstantial penalty could be imposed for breaching an LTSO, Richards C.J. concluded that Parliament did not intend for offenders to takeissue with conditions of their LTSOs by breaching them. It followed that the trial judge erred in permitting Mr. Bird to collaterally attackthe Parole Board’s order. In light of this conclusion, he found it unnecessary to address whether the residency condition violated Mr.Bird’s s. 7 Charter rights. In the result, he set aside Mr.

Bird’s acquittal, entered a conviction on the charge under s. 753.3(1) of theCriminal Code and remitted the matter to the Provincial Court for sentencing. IV. Issue [20] In my view, this appeal raises a single issue: Can Mr. Bird collaterally attack the residency condition imposed by theParole Board on his LTSO in defending against a criminal charge of having breached that condition? Because I would answer thisquestion in the negative, I find it unnecessary to address Mr. Bird’s argument that the residency condition violates his Charter rights. V. Analysis A.

General Principles Regarding Collateral Attacks [21] A collateral attack is an attack on an order “made in proceedings other than those whose specific object is thereversal, variation or nullification of the order” (Wilson v. The Queen, (SCC), [1983] 2 S.C.R. 594, at p. 599; Canada(Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at para. 60). This Court has recognized a general rule againstcollateral attacks on court orders: with limited exceptions, an order issued by a court must be obeyed unless it is set aside in a proceedingtaken for that purpose (Maybrun, at paras. 2-3; R. v.

Litchfield, (SCC), [1993] 4 S.C.R. 333, at p. 349; Garland v.Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 71). In Maybrun, the Court held that a different analysis waswarranted for collateral attacks on administrative orders. As I will explain, however, similar principles underlie both approaches.

(1) Collateral Attacks on Court Orders [22] There is a powerful rationale for the general rule precluding collateral attacks on court orders: . . . the rule seeks to maintain the rule of law and to preserve the repute of the administration of justice. To allow parties to govern theiraffairs according to their perception of matters such as the jurisdiction 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 reversedon appeal . . . . (Maybrun, at para. 2, quoting Litchfield, at p. 349) As this Court noted in Maybrun, the rule against collateral attacks on court orders has been consistently applied in criminal proceedingswhere the charge involves an alleged breach of a court order (Maybrun, at para. 3, citing R. v. Domm (1996), (ONCA), 31 O.R. (3d) 540 (C.A.), at p. 547, leave to appeal refused, [1997] 2 S.C.R. viii).

The rule has also been applied where the accusedalleges that the court order is unconstitutional. In Domm, Doherty J.A., writing for the Ontario Court of Appeal, held that “[e]ven ordersthat are constitutionally unsound must be complied with unless set aside in a proceeding taken for that purpose” (p. 549). As this Courtexplained in Canada (Human Rights Commission) v. Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626, “[i]f peopleare free to ignore court orders because they believe that their foundation is unconstitutional, anarchy cannot be far behind.

The citizens’safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them” (para. 51, citing McLachlin J.(as she then was), in Canada (Human Rights Commission) v. Taylor, (SCC), [1990] 3 S.C.R. 892, at p. 974). [23] The doctrine of collateral attack, however, recognizes that people must have an effective means to challenge courtorders, particularly when those orders are alleged to violate constitutional rights.

In Domm, Doherty J.A. clarified that “whereconstitutional rights are implicated, the court must be particularly concerned about the availability of an effective remedy apart fromcollateral attack when considering whether” to allow a collateral attack (p. 552).

Where a collateral attack is the only way to effectivelychallenge a court order, a collateral attack will be permitted (see Domm, at pp. 553-54). [24] In sum, two principles underlie the approach to collateral attacks on court orders: (1) the importance of maintainingthe rule of law and preserving the repute of the administration of justice; and (2) ensuring that individuals have an effective means tochallenge court orders, particularly when these orders are challenged on the basis that they are not Charter compliant.

As I will explain,the Maybrun framework accounts for these principles in the administrative context.

(2) Collateral Attacks on Administrative Orders [25] In Maybrun, the Court held that a different framework was warranted for collateral attacks on administrative orders,given the major differences that exist between court orders and administrative orders in relation to their legal nature and the institutionsthat issue them (para. 4). Maybrun clarified that the question of whether a person charged with breaching an administrative order cancollaterally attack the validity of the order is determined by focussing on the legislature’s intention.

The court must inquire into whetherthe legislature intended to permit collateral attacks on the order, or intended instead that a person should challenge the order by way ofother review mechanisms.

[ 26 ] In focussing on the legislature’s intention, the Maybrun framework balances two principles: (1) ensuring that the legislature’s decision to assign decision-making powers to administrative bodies is not undermined and (2) ensuring that individuals have an effective means available to them to challenge administrative orders ( Maybrun at para. 44; see also B.

Bilson, “Lying in Wait for Justice: Collateral Attacks on Administrative and Regulatory Orders” (1998), 12 C.J.A.L.P. 289, at pp. 291-94). [ 27 ] Focussed as it is on the legislature’s intention as to the appropriate forum for challenging an administrative order, the Maybrun framework respects the legislature’s choice to assign decision-making powers to administrative bodies. The Court in Maybrun emphasized that administrative structures play an important role in the organization of a wide range of activities in modern society (paras. 26 and 43).

To maintain the authority of these administrative bodies, the legislature may establish internal mechanisms with the intention that people will challenge administrative orders by way of these mechanisms or other appropriate forums, rather than by mounting a collateral attack on them ( Maybrun , at para. 27).

Maybrun recognized that if a person were entirely free to ignore these established procedures for challenging the order and could breach the order and wait for criminal charges to be laid before challenging it, this would risk discrediting the authority of administrative bodies that issue such orders and undermine the effectiveness of administrative regimes (para. 42). [ 28 ] In addition, permitting collateral attacks would result in increased recourse to criminal sanctions by the state (para 42).

If individuals object to administrative orders only after having breached them, the state will need to resort to criminal charges and sanctions to secure compliance. As the Court in Maybrun warned, “[r]ather than promoting co-operation and conciliation, which are among the basic objectives of such administrative mechanisms, this would result in a hardening of relations between governments and citizens” ( ibid. ). Furthermore, allowing collateral attacks on administrative orders could undermine the legislature’s intention to draw on the expertise and experience of certain decision-makers.

As the Court noted in Maybrun , permitting individuals to circumvent administrative tribunals or other appropriate forums and transfer the debate to the judicial arena could lead the courts to rule on matters they are not best suited to decide (para. 43). [ 29 ] That said, in focussing on the legislature’s intention as to the appropriate forum, the Maybrun framework also stresses that individuals must have an effective means to challenge administrative orders.

The Court in Maybrun noted that the rule of law requires “that the government exercises its powers within the limits prescribed by law or that appropriate remedies are available for citizens to assert their rights” , especially where penal sanctions are involved (paras. 25 and 44). Accordingly, “it must . . . be presumed that the legislature did not intend to deprive citizens affected by government actions of an adequate opportunity to raise the validity of the order” (para. 46).

Where there is no mechanism or forum for challenging the validity of the administrative order effectively, it must be inferred that the intention of the legislature is to permit a collateral attack (paras. 44 and 46). [ 30 ] In view of this, I respectfully disagree with Mr. Bird’s argument that “[l]egislative intent would trump Charter rights” under the Maybrun framework (A.F., at para. 57). Mr. Bird asserts that Maybrun ’s focus on the legislature’s intent “may be used to override . . . Charter rights.

Where constitutionally protected rights are in issue, Parliament’s intention may not be sufficiently determinative of the issue of whether a collateral attack should be permitted” (para. 57). Maybrun specifically recognizes that the legislature intends for individuals to have an opportunity to effectively assert their rights. In the Charter context, this means that the person challenging the order must be able to receive an effective remedy that will vindicate his or her Charter rights (see R. v. 974649 Ontario Inc. , 2001 SCC 81 , [2001] 3 S.C.R. 575, at para. 19 ; Doucet-Boudreau v.

Nova Scotia (Minister of Education ), 2003 SCC 62 , [2003] 3 S.C.R. 3, at paras. 25 and 55 ; Henry v. British Columbia (Attorney General) , 2015 SCC 24 , [2015] 2 S.C.R. 214, at para. 64 ). Where no such remedies are available, it must be inferred that the intention of the legislature is to permit a collateral attack. [ 31 ] I would further observe that where 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.

This is because the person had the opportunity to challenge the validity of the order through other means but failed to do so (see Maybrun , at paras. 60-61). [ 32 ] To determine the legislator’s intention as to the appropriate forum for challenging the validity of an administrative order, Maybrun identifies five non-exhaustive factors that may be considered by a court: (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’être of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply with the order ( Maybrun , at paras. 45-49; Klippert , at para. 13).

The factors are “not independent and absolute criteria, but important clues, among others, for determining the legislature’s intention” ( Maybrun , at para. 46). B. Applying the Maybrun Framework to the Case at Hand: The Five Factors

(1) Factor One: The Wording of the Statute Under the Authority of Which the Order Was Issued; and

(2) Factor Two: The Purpose of the Legislation [ 33 ] I begin with the first two factors, “the wording of the statute under the authority of which the order was issued” and “the purpose of the legislation”. [ 34 ] The Parole Board imposed the residency condition on Mr. Bird’s LTSO pursuant to s. 134.1(2) of the CCRA , which permits the Parole Board to “establish conditions for the long-term supervision of the offender that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender”.

An LTSO is a form of conditional release governed by the CCRA : R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433, at para. 47 . The sentencing court establishes only the length of an LTSO ( ibid. , at para. 44). The specific conditions of long-term supervision are a combination of what the CCRA prescribes and what the Parole Board orders pursuant to its authority under s. 134.1(2) of the CCRA (C.A. reasons, at para. 22). [ 35 ] Long-term supervision applies to two exceptional groups of offenders: long-term offenders and dangerous offenders. Both groups pose an elevated risk to the community ( R. v.

Steele , 2014 SCC 61 , [2014] 3 S.C.R. 138, at para. 28 ). A court can designate an offender as a long-term offender where the offender has been convicted of an offence for which a sentence of two years or more is appropriate, there is a substantial risk that the offender will reoffend and there is a reasonable possibility of eventual control of that risk

in the community ( s. 753.1(1) of the Criminal Code ; Ipeelee , at para. 44 ).

If a court finds an offender to be a long-term offender, the court must impose a term of imprisonment and order that the offender be subject to a period of long-term supervision: s. 753.1(3) of the Criminal Code . [ 36 ] Dangerous offenders are offenders who have been convicted of a serious personal injury offence and whose “past conduct and patterns of behaviour show that they constitute a threat to the life, safety or physical or mental well-being of other persons ( s. 753(1) (a)), or that their failure to control sexual impulses means that they are likely to cause injury, pain or other evil to other persons ( s. 753(1) (b))” ( Steele , at para. 28 ; see also R. v.

Boutilier , 2017 SCC 64 , [2017] 2 S.C.R. 936, at paras. 16-18 ).

A sentencing court may, on finding an offender to be a dangerous offender, decide to impose a term of imprisonment and a period of long-term supervision instead of an indeterminate sentence of imprisonment if the court determines that long-term supervision will adequately protect the public against the risk the dangerous offender poses ( s. 753(4) and (4.1) ; Steele , at para. 31 ). [ 37 ] In Ipeelee , this Court recognized two specific objectives of long-term supervision: (1) to protect the public from the risk of re-offence by long-term and dangerous offenders; and (2) to rehabilitate these offenders and reintegrate them into the community ( para. 48).

An LTSO controls the risk to public safety posed by long-term and dangerous offenders in the community, which is why the breach of an LTSO is deemed to be a more serious offence than the breach of a probation order ( Ipeelee , at paras. 53-54 ). As G. R. Clewley, P. G. McDermott and R. E. Young note in Sentencing: The Practitioner’s Guide (loose-leaf): “[t]he breach of a long-term supervision order is taken very seriously, because by definition the offenders on these orders have committed violent and/or sexual offences and pose some risk to the community” (p. 13-57).

Under s. 753.3(1) of the Criminal Code , the breach of a condition of an LTSO is an indictable offence punishable by a term of imprisonment of up to 10 years. [ 38 ] In my view, it would undermine the purposes of long-term supervision if offenders were allowed to take a “breach first, challenge later” approach to the conditions of their LTSOs. The conditions of an LTSO are imposed to reduce to an acceptable level the elevated risk posed by long-term offenders and dangerous offenders in the community. When offenders breach these conditions, they expose the public to this risk.

Bearing this in mind, I find it hard to conceive that Parliament could have intended to permit long-term and dangerous offenders to take a “breach first, challenge later” approach to their LTSO conditions, thereby exposing the community to the very dangers those conditions were intended to address. Moreover, breaches are likely to be antithetical to the offender’s rehabilitation, given that conditions are imposed, at least in part, to facilitate the offender’s successful reintegration into the community.

In sum, permitting a “breach first, challenge later” approach in this context undermines not only the community’s interests, but also those of the offender. This outcome is inconsistent with the objectives of the long-term supervision regime and, to that extent, strongly indicates that Parliament did not intend to permit collateral attacks. [ 39 ] Mr. Bird rebuffs the concern that permitting collateral attacks in this context will place the community at risk.

In his view, it “strains credulity to assume that an offender would be willing to gamble up to ten years of his or her life by breaching a condition instead of taking the easier step of applying to vary it” (A.F., at para. 32). But that is effectively what Mr. Bird did in this case: instead of “taking the easier step” of applying to vary his residency condition, he challenged that condition only after having beached it. To be clear, I do not suggest that in taking a “breach first, challenge later” approach, Mr.

Bird surveyed his options and made a deliberate and tactical choice to challenge his residency condition by breaching it, viewing that course of action as the most advantageous. Rather, I am simply focussing on Mr. Bird’s actions, which speak for themselves: he challenged his residency condition only after having breached it. The question before this Court is not why he took this course of action, but rather whether Parliament intended that he be permitted to do so. [ 40 ] After leaving Oskana Centre, Mr. Bird was at large and unsupervised in the community for over two months.

It should be recalled that the Parole Board was satisfied that, based on Mr. Bird’s “lengthy history of violence causing physical harm to [his] victims”, his “use of weapons during the commission of many of [his] offences” and his “numerous failed releases” (A.R., vol. II, at p. 69), Mr. Bird required the structure and supervision of a community correctional centre or community residential centre. In breaching the residency condition of his LTSO, Mr. Bird exposed the public to a risk of violent re-offence that the Parole Board deemed unacceptable. [ 41 ] I would also point out that Mr.

Bird breached his residency condition a second time. After the trial judge acquitted Mr. Bird of breaching the residency condition of his LTSO on February 19, 2016, the trial judge did not quash or vary the residency condition (trial reasons, at para. 41). The residency condition remained unchanged and accordingly, Mr. Bird was returned to Oskana Centre to finish the remainder of his residency condition. On or about March 18, 2016, Mr. Bird left Oskana Centre again, in breach of his residency condition.

He was arrested on April 11, 2016, when the police were dispatched to a residence regarding a report of a disturbance. The police observed a woman in the residence who appeared to be crying and entered the residence to check on her welfare, where they found and arrested Mr. Bird. [ 42 ] In my view, it is plain and obvious that allowing offenders like Mr. Bird to object to conditions of their LTSOs by taking a “breach first, challenge later” approach puts the community at risk and may compromise the offender’s rehabilitation.

Moreover, it could have the detrimental effect of reducing the availability of long-term supervision for dangerous offenders, thus further undermining the objectives of the long-term supervision regime. As this Court stated in R. v. Johnson , 2003 SCC 46 , [2003] 2 S.C.R. 357, long-term supervision is designed to protect society from the threat that the offender currently poses without having to resort to “the blunt instrument of indeterminate detention” (para. 32).

As noted above, a court may order that a dangerous offender receive a specified term of imprisonment combined with long-term supervision instead of an indeterminate sentence of imprisonment ( Steele , at para. 31 ). This, however, will occur only if the court is satisfied that long-term supervision will adequately protect the public against the risk posed by the dangerous offender ( Steele , at para. 28 ).

If dangerous offenders are permitted to take a “breach first, challenge later” approach to the conditions of their LTSOs, sentencing courts may become concerned about the manageability of dangerous offenders within the community, which in turn could lead to the imposition of more indeterminate sentences of imprisonment. [ 43 ] In my view, then, the first two factors of the Maybrun framework — the wording of the statute under which the order was issued and the purpose of the legislation — strongly indicate that Parliament did not intend for long-term and dangerous offenders to take issue with residency conditions of long-term supervision through collateral attacks.

(3) Factor Three: The Existence of a Right of Appeal [44] I turn now to the third Maybrun factor, “the existence of a right of appeal”. In my view, this factor permits a court toconsider not only the existence of a right of appeal to an administrative appeal tribunal, but also the existence of other effectivemechanisms or forums for challenging the order at issue. [45] The Court of Appeal noted and the parties conceded that there is no right of appeal under the CCRA from a decisionof the Parole Board concerning the conditions of an LTSO (C.A. reasons, at para. 52). I approach this matter on that basis. [46] Mr.

Bird points out that in Maybrun and Klippert, there was a right of appeal to an administrative appeal tribunal.Given that there is no right of appeal to the Appeal Division of the Parole Board, Mr. Bird argues that the third Maybrun factor has“little, if any, application in this case” (A.F., at para. 34). However, it must be remembered that the focus under the Maybrun frameworkis on “the legislature’s intention as to the appropriate forum for raising the validity of an administrative order” (para. 52).

As indicated,Maybrun was careful to state that the listed factors were not “absolute criteria, but important clues, among others, for determining thelegislature’s intention” (para. 46). Likewise, in Klippert, the Court emphasized that “[t]he determination of legislative intent is never amechanical act, and an inflexible formula cannot be applied in carrying it out” (para. 14). In certain administrative contexts, thelegislature may intend for people to challenge the validity of an administrative order by means other than an appeal to an administrativetribunal.

Therefore, in my view, a court can consider other review mechanisms or forums under this factor. [47] That being said, these review mechanisms or forums must permit the person to assert his or her rights and challengethe administrative order effectively. As indicated, under the Maybrun framework, it must be presumed that the legislature intendscitizens affected by government actions to have “an adequate opportunity to raise the validity of the order” (para. 46). To provide aneffective means of challenging an administrative order, the review mechanisms must give the person access to an effective remedy.

Thisis particularly important when a person alleges that the administrative order violates his or her constitutional rights. As noted, a personmust always have access to an effective remedy that will vindicate his or her Charter rights. [48] Before this Court, Mr. Bird asserts that the residency condition in his case infringed his rights under ss. 7, 9 and/or11(

h) of the Charter. He argues that because a community correctional centre meets the definition of a penitentiary under the CCRA, theresidency condition is not authorized under s. 134.1(2) of the CCRA and is inconsistent with the objectives of long-term supervision. Hemaintains that the purpose of long-term supervision is to release people into the community, not to a penitentiary (see transcript, at p.23). [49] To the extent that Mr. Bird seeks to rely on the Charter as a basis for challenging the residency condition, therecord indicates that he had at least two and possibly three viable options open to him.

First, Mr. Bird could have written to the ParoleBoard to ask it to vary or remove the condition. Second, he could have applied for judicial review in the Federal Court (although, as I willexplain, this may not have provided an effective remedy). And third, he could have applied to the provincial superior court for habeascorpus. I therefore respectfully disagree with the assertion by the intervener Aboriginal Legal Services Inc. that Mr. Bird “had virtuallyno means to challenge the decision to any body anywhere” (I.F., at para. 30). Taken collectively, these mechanisms provided Mr.

Birdwith an effective means to challenge the residency condition. (

a) Writing to the Parole Board [50] Mr. Bird could have written to the Parole Board and requested that his residency condition be varied or removed.Under s. 134.1(4) of the CCRA, the Parole Board can remove or vary any condition of long-term supervision. Mr. Bird was expresslyadvised of this opportunity in writing before his long-term supervision came into effect. In the cover letter sent to Mr.

Bird on July 24,2014, which attached the Parole Board’s reasons for its decision to impose the residency condition, the Parole Board stated that: You may apply to the Parole Board of Canada to be relieved of any of your conditions or request that the Board vary the terms of any ofyour conditions of Long Term Supervision Order. Upon receipt of your application and an updated report from your Parole Officer, withwhom you should discuss your request, your file will be referred to the Board for voting and subsequently you will be advised of theoutcome.

To ensure that your request receives complete consideration, please fully document the reasons for your request. [Emphasisadded.] (A.R., vol. II, at p. 67) [51] This letter gave Mr. Bird ample notice of the residency condition — more than five months — before his LTSOcame into effect on January 7, 2015. During those five months, he could have written to the Parole Board and requested that the ParoleBoard vary or remove the condition so that he would not be placed in a community correctional centre. [52] Mr.

Bird does not contest that the Parole Board must exercise its statutory authority in conformity with the Charterand has jurisdiction to consider Charter issues and grant an appropriate remedy. In R. v.

Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, thisCourt stated that “administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has notbeen clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them” (para. 78).This includes Charter issues and Charter remedies (ibid., at para. 81). [53] It is clear that the Parole Board has the power to decide questions of law.

For example, s. 147(1) of the CCRAprovides that an offender may appeal a decision of the Parole Board to the Appeal Division on the ground that the Parole Board, inmaking its decision, “failed to observe a principle of fundamental justice” or “made an error of law”. This language indicates that theParole Board has the power to decide legal questions (see Conway, at para. 84, citing Nova Scotia (Workers’ Compensation Board) v.Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; see also Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40,[2004] 2 S.C.R. 223, and Mooring v.

Canada (National Parole Board), (SCC), [1996] 1 S.C.R. 75, at para. 89). Inaddition, there is nothing in the CCRA that indicates that Parliament intended to withdraw Charter jurisdiction from the scope of the

Parole Board’s mandate. In the wake of Conway , I am satisfied that the Parole Board has the jurisdiction to decide Charter issues and grant Charter remedies and is therefore a court of competent jurisdiction under s. 24(1) of the Charter (para. 22). [ 54 ] I acknowledge that in Mooring , this Court decided that the Parole Board was not a court of competent jurisdiction for the purpose of excluding evidence under s. 24(2) of the Charter (para. 32). In that decision, the Court found that the Parole Board did not have the authority under its statutory scheme to grant this remedy (paras. 25-29).

In my view, Mooring did not decide whether the Parole Board could award Charter remedies generally. As this Court explained in Conway , the threshold question is whether the tribunal has the jurisdiction to award Charter remedies generally and is therefore a court of competent jurisdiction (paras. 22 and 81). If the tribunal does have the jurisdiction to award Charter remedies generally, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme (para. 82).

As such, this Court’s decision in Mooring does not prevent a determination that the Parole Board can grant other Charter remedies. Whether, in light of Conway , Mooring remains good law is best left for another day. [ 55 ] In sum, there is nothing to indicate that Mr. Bird could not have written to the Parole Board and requested that it reconsider its original decision on the basis that it did not comply with the Charter . It was open to the Parole Board to grant an appropriate remedy to Mr. Bird by varying or removing the residency condition. I accept that, in doing so, Mr.

Bird would be asking the same body that made the decision to reconsider it, which is not the same as a right of appeal to a body which is independent from the original decision-maker, such as an administrative appeal tribunal, as was the case in Maybrun and Klippert . In those decisions, the Court specifically noted that the relevant statutory schemes provided a right of appeal to an independent specialized tribunal (see Maybrun , at para. 56; Klippert , at para. 17). But, as I will explain, Mr. Bird could have applied for habeas corpus in a provincial superior court.

He could also have applied for judicial review in the Federal Court, subject to the concerns discussed below. (

b) Applying for Judicial Review in the Federal Court [ 56 ] Under s. 18(1) of the Federal Courts Act , R.S.C. 1985, c. F-7 , the Federal Court has exclusive jurisdiction to issue, inter alia , a writ of certiorari or grant declaratory relief against a federal board, commission or tribunal, which includes the Parole Board. Such relief may be granted on Charter grounds. That said, two of the interveners assert that judicial review in the Federal Court may not have offered timely relief to Mr. Bird. In addition, counsel for Mr.

Bird and the David Asper Centre for Constitutional Rights (“David Asper Centre”) raise concerns about the accessibility of judicial review proceedings to Mr. Bird. [ 57 ] The interveners, the David Asper Centre and the Canadian Civil Liberties Association, argue that by the time Mr. Bird’s challenge would have been heard by the Federal Court, his residency condition may have expired, thereby rendering the issue moot. [ 58 ] In addition, counsel for Mr. Bird and the David Asper Centre raise concerns about the accessibility of judicial review proceedings in the Federal Court to individuals like Mr.

Bird who would need to initiate proceedings while being incarcerated, or at best having been recently released on statutory release. Counsel for Mr. Bird points out that Mr. Bird has spent close to the last decade in prison and was not likely to have the financial resources necessary to hire counsel for potentially lengthy judicial review proceedings. If Mr. Bird had to represent himself, the David Asper Centre submits that Federal Court procedure would pose particular challenges for him. Citing Bielby J.A.’s decision in D.G. v.

Bowden Institution (Warden) , 2016 ABCA 52 , 612 A.R. 231 , the David Asper Center asserts that “knowledge of the [ Federal Court ] Rules is likely to be limited . . . given the comparative rarity with which individuals engage with the federal court system” (I.F., at para. 24). [ 59 ] In my view, counsel for Mr. Bird and the interveners raise realistic concerns about the timeliness and accessibility of relief in the Federal Court. When someone’s liberty is at stake, efficiency and timeliness take on greater significance.

As such, it is important that there be a mechanism available that affords sufficiently swift and accessible relief for those deprived of their liberty. On the record before us, I cannot say with certainty that judicial review would have offered such relief to Mr. Bird. [ 60 ] That said, I would point out that Mr. Bird received notice of the Parole Board’s decision to impose the residency condition more than five months before his long-term supervision commenced, which would have given him a considerable amount of time in which to initiate judicial review proceedings.

I also note that under r. 8(1) of the Federal Courts Rules , SOR/98-106 , Mr. Bird could have moved for an expedited proceeding. However, if that motion were to have been denied, which is perhaps unlikely given the pressing liberty interest at stake, the reality remains that a decision by the Federal Court might not have been released before the majority, if not all, of Mr. Bird’s residency condition had been completed ( see May v. Ferndale Institution , 2005 SCC 82 , [2005] 3 S.C.R. 809 , at para. 69 ; Bowden , at para. 43). [ 61 ] While much of this is speculative, I cannot reject Mr.

Bird’s concerns out of hand. In view of this, Parliament may wish to consider whether the procedures in place governing judicial review applications could be modified to provide more timely and accessible relief. This would be of benefit to both persons challenging conditions that restrict their liberty, as well as persons challenging conditions that do not restrict their liberty — perhaps more so as regards the latter. Fortunately, the remedy of habeas corpus was available to Mr.

Bird, and it provided a swift and efficient mechanism for challenging the residency condition at issue here, which restricted his liberty — unconstitutionally, in his view. I turn to that remedy now. (

c) Applying for Habeas Corpus [ 62 ] Although Mr. Bird did not have a right of appeal from the Parole Board’s decision to an independent administrative tribunal, applying for habeas corpus in a provincial superior court would have given him the opportunity to ask for speedy relief from an independent body. Habeas corpus , which has been called the “Great Writ of Liberty” (see May , at para. 19 ), is a remedy designed to provide “swift access to justice for those who have been unlawfully deprived of their liberty” ( Mission Institution v. Khela , 2014 SCC 24 , [2014] 1 S.C.R. 502, at para. 3 ).

Once the applicant shows a deprivation of liberty and some basis for concluding that the detention is unlawful, the court will issue a writ of habeas corpus , which requires the detaining authorities to demonstrate at a hearing that the detention is justified ( ibid. , at para. 41). Generally, courts give priority to habeas corpus applications as they are deemed urgent ( Brown v. Canada (Public Safety) , 2018 ONCA 14 , 420 D.L.R. (4th) 124, at para. 20 ), and a hearing of a habeas corpus application can be

obtained more rapidly than a hearing of a judicial review application in the Federal Court (May, at para. 69; Khela, at para. 46; Ogiamienv. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220, at para. 18). As this Court noted inMay, habeas corpus is a crucial remedy in pursuit of ss. 7 and 9 rights under the Charter (para. 22). Given the long history of thisremedy, its central role in safeguarding against unlawful deprivations of liberty, and the fact that it is enshrined in s. 10(

c) of the Charter,Parliament would clearly have been aware of habeas corpus and its availability to challenge residency conditions that are not Chartercompliant and thereby unlawfully deprive long-term offenders of their liberty. [63] There is nothing in the record to indicate that Mr. Bird would have been unable to apply for habeas corpus. Theessence of Mr. Bird’s constitutional argument is that he had been deprived of liberty unlawfully by the Parole Board’s order, which in itseffect led to his residence at Oskana Centre. No issue was taken with the fact that Mr.

Bird’s residency condition amounted to adeprivation of liberty: see R. v. Miller, (SCC), [1985] 2 S.C.R. 613, at p. 637; May, at para. 76. Moreover, this Court hasrecognized that habeas corpus is a remedy particularly well-suited for individuals in Mr. Bird’s situation, who may be self-represented,“the quick resolution of . . . issues” afforded by habeas corpus is important “if counsel is acting pro bono or on limited legal aid fundingor if the prisoner is representing himself” (May, at para. 69).

Habeas corpus is more accessible to self-represented litigants than judicialreview in the Federal Court, as it provides access to local procedures “upon which [self-represented litigants] may more readily obtainsome type of legal assistance and advice” (Bowden, at para. 40). [64] Furthermore, there is no evidence that a provincial superior court would have declined its jurisdiction to hear Mr.Bird’s application.

May clarified that as a governing rule, a provincial superior court has the jurisdiction to hear an application for habeascorpus, despite the fact that alternative remedies are available in the Federal Court (para. 50; Khela, at para. 42). As this Court noted inMay, “As a matter of principle, a provincial superior court should exercise its jurisdiction when it is requested to do so.

Habeas corpusjurisdiction should not be declined merely because another alternative remedy exists” (para. 44). [65] The Court in May stated that provincial superior courts should decline jurisdiction to hear habeas corpus applicationsin only two very limited circumstances (para. 50; Khela, at para. 42). First, habeas corpus cannot be used to challenge the legality of aconviction (May, at para. 36).

Second, where Parliament has put in place “a complete, comprehensive and expert statutory scheme whichprovides for a review at least as broad as that available by way of habeas corpus and no less advantageous”, provincial superior courtsshould decline jurisdiction (May, at paras. 40 and 63; Khela, at para. 42; Ogiamien, at para. 13). [66] In the circumstances of this case, there is nothing in the record to indicate that there was a mechanism whichprovided a form of review as advantageous as habeas corpus. While Mr.

Bird accepts that he could have written to the Parole Board toask it to reconsider its original decision, this would not have enabled him to seek relief from an independent body (see May, at para. 62).Furthermore, this Court in May and Khela set out five factors that militate in favour of a provincial superior court hearing a habeascorpus application, despite the availability of judicial review in the Federal Court.

Four of these five factors are relevant to this case.First, a hearing of a habeas corpus application in a superior court can be obtained more rapidly than a hearing of a judicial reviewapplication in the Federal Court (May, at para. 69; Khela, at para. 46). Second, Mr. Bird would have greater local access to a provincialsuperior court than to the Federal Court (May, at para. 70; Khela, at para. 47; Ogiamien, at para. 18).

Third, superior courts are“eminently familiar with the application of Charter principles”, which are directly at issue when a person claims to have been unlawfullydeprived of liberty (Khela, at para. 45; see also May, at para. 68).

Fourth, unlike judicial review, habeas corpus is non-discretionary: acourt must issue a writ of habeas corpus where the applicant has shown a deprivation of liberty and raised a legitimate basis on which toquestion the legality of the detention (May, at para. 71; Khela, at para. 48; Ogiamien, at para. 18). [67] For these reasons, it is difficult to conceive of a remedy better suited to Mr. Bird’s circumstances than habeascorpus, designed as it is to provide swift and easily accessible relief to persons challenging a deprivation of their liberty.

Moreover,given the force of the first two Maybrun factors, which strongly indicate that Parliament did not intend to permit long-term offenders tolaunch collateral attacks against their LTSO conditions in criminal proceedings, if effective alternative mechanisms or forums exist, thenit is axiomatic that Parliament would have intended that those alternatives be used, rather than permitting a collateral attack in criminalproceedings.

To reason otherwise and to adopt the narrower approach advocated by my colleague would be to assume Parliament’signorance of these effective alternatives — which, in the case of habeas corpus, is particularly difficult to imagine since the writ hasexisted for centuries (see May, at para. 19) and is enshrined in s. 10(

c) of the Charter — or, if aware of them, that Parliament intended forsome unknown reason that they not be used. I am not persuaded that either assumption is justified. [68] My colleague, however, rejects the notion that the availability of habeas corpus is relevant to the Maybrun analysisin this case. While she takes the position that reconsideration by the Parole Board represents an inadequate mechanism for challengingMr. Bird’s residency condition, she does not dispute that habeas corpus remained available to Mr. Bird.

Yet she rejects the relevance ofhabeas corpus as an available alternative because, in her view, Parliament presumably intended that collateral attacks in criminalproceedings would be permitted despite the availability of habeas corpus, thereby enabling the accused to take a “breach first, challengelater” approach. [69] Respectfully, I cannot agree.

In my view, where an administrative process is inadequate (which I do not accept isnecessarily the case here), but an effective alternative such as habeas corpus — which, as indicated, is a remedy Parliament would haveundoubtedly been aware of — is readily available, there is no compelling reason to assume that Parliament would have intended that acollateral attack in a criminal proceeding would provide an appropriate forum for challenging the order in question. In fact, the moreplausible supposition is the opposite.

Moreover, in my view, where the administrative process put in place by Parliament is inadequate(as my colleague contends), a person deprived of their liberty could hardly be faulted for disregarding that inadequate process andseeking habeas corpus instead. [70] As a further basis for concluding that the availability of habeas corpus is irrelevant to the Maybrun analysis in thiscase, my colleague relies on the fact that habeas corpus would not be available as a means of challenging LTSO conditions that do notrestrict the long-term offender’s liberty (see Martin J.’s reasons, at para. 135). [71] Again, I cannot agree with my colleague’s approach.

In my respectful view, the proper framing of the question to beanswered at this stage of the analysis is whether there are effective alternative mechanisms or forums, apart from a collateral attack in

criminal proceedings, for challenging the particular LTSO condition in dispute — here, one that restricts the long-term offender’s liberty. This framing is important because it focuses the inquiry on the particular condition in dispute, rather than casting the inquiry so broadly as to encompass other types of conditions that are not being challenged.

How the analysis would differ where the condition at issue does not involve a restriction of liberty may be a legitimate question, but it is not before us and is best left for another day. [ 72 ] In sum, the record in this case indicates that even if judicial review in the Federal Court would not have provided Mr. Bird with an effective remedy, writing to the Parole Board and/or applying for habeas corpus would have offered effective relief to Mr. Bird. In my view, these mechanisms, considered together, constitute an effective means to challenge the order. As a first step, Mr.

Bird could have simply written to the Parole Board and asked it to vary or remove the residency condition. He could also have applied for judicial review in the Federal Court. However, if judicial review was not accessible to Mr. Bird and/or if Mr.

Bird had wanted quicker relief, he could have applied for habeas corpus in a provincial superior court, a remedy that offers simplified procedures that promote greater accessibility by self-represented litigants and persons with limited means. [ 73 ] As an aside, I note that Maybrun held that the legislature must have intended to permit a collateral attack if it is the only effective way to challenge an administrative order. However, in this case, a collateral attack would not appear to be an effective means to challenge the order at issue.

In oral submissions, the Crown asserted that when a person breaches a residency condition, a warrant of suspension will be issued and the person will be brought back into custody (transcript, at p. 78). If a charge is laid for breaching the order, the offender will likely be held in custody pending his or her trial ( ibid. ). The Crown asserted that after a bail hearing, a preliminary hearing, the serving of notice of a constitutional question and the eventual trial, the likelihood is that many months will have passed since the breach of the condition ( ibid. ). Indeed, that is exactly what happened to Mr.

Bird in this case: Mr. Bird left Oskana Centre in breach of his residency condition and was arrested more than two months later. He was kept in custody until the date of his trial for a period of approximately 10 months (trial reasons, at para. 4). As the trial judge noted, that period of time in custody greatly exceeded the residence time that was required in Oskana Ce

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