R. v. Love, 2011 ONCJ 134

DATE: 2011·03·03 Citation: R. v. Love , 2011 ONCJ 134 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BRADLEY LOVE Before Justice K.P. Wright Heard on February 23, 2011 Ruling on Application released on March 3, 2011 T. Vogel ..................................................................................................................... for the Crown P.J. Leckey ................................................................................................. for the accused B. Love WRIGHT J.: Introduction [ 1 ] This is my ruling on an application brought by Mr.

Love challenging the validity of a probation order imposed upon him by Justice Hogg on February 13, 2006. Background [ 2 ] Mr. Love is before this court facing 8 charges of breach of probation. All of the counts arise as a result of allegations that he was breaching a probation order imposed by Justice Hogg on February 13, 2006. [ 3 ] To date, three days have been dedicated to the trial of this matter and it has not yet completed. On the first two days of trial Mr. Love represented himself. On the third day of trial Mr. Love had retained Mr. Leckey to represent him. Also on the third day of trial Mr.

Leckey requested and was granted leave to bring an application challenging the validity of Justice Hogg’s probation order. [ 4 ] On February 23, 2011 counsel made submissions on the application and the matter was put over to today for my ruling. Facts and Analysis [ 5 ] On February 13, 2006, Justice Hogg of the Ontario Court of Justice placed Mr. Love on probation for a period of three years. [ 6 ] There were a number of terms and conditions attached to that probation order but only one that is relevant for our purposes on this application.

It is as follows: Unless personally requested by the recipient, he is not to send any material or messages by mail, electronic transmission, fax or hand delivered. [ 7 ] On March 19, 2009, Mr. Love was arrested on charges of failing to comply with the conditions of Justice Hogg’s probation order. Six of his current charges related specifically this particular term. [ 8 ] Defence counsel, on behalf of Mr. Love, takes the position that the condition imposed by Justice Hogg is punitive, overbroad and thereby invalid.

Defence seeks a remedy that the term be struck out and/or deleted in its entirety. [ 9 ] Crown counsel takes the position that the rule against collateral attacks applies and as such it bars Mr. Love from challenging the validity of the probation condition at issue.

[10] In my view the rule barring collateral attacks is binding on me and must be strictly adhered to. It is a rule that ensurescourt orders are considered final and conclusive, and that orders must be obeyed unless set aside in an established judicial procedure. It isa rule that promotes certainty and confidence in the administration of justice. See R. v. Litchfield (SCC), [1993] 4S.C.R. 333; and R. v. J.S., [2007] O.J. No.4049 (S.C.J.); and R. v.

Domm (1996) (ON CA), 111 C.C.C. (3d) 449 (Ont.C.A.). [11] Even an allegation that an individual’s constitutional rights have been violated by a court order cannot justify theabandonment of the rule against collateral attack. See. R.v. Domm supra. [12] That is not to say that the rule leaves no room for flexibility. It does, but only in rare and exceptional circumstances. Iam not persuaded that this case falls into that category and here is why. [13] Mr. Love had two established judicial procedures available to him that would have allowed him the opportunity to varyhis probation order.

He chose to avail himself of neither. [14] He could have made application to vary his probation pursuant to

section 732.2(3) of the Criminal Code. It is anuncomplicated procedure that is generally carried out in the judge’s chamber, foregoing the need for a formal hearing. It is designed togive sentencing courts jurisdiction to make changes in probation orders to accommodate unforeseen events. [15] Mr. Love did not make such an application. [16] Mr. Love also had available to him the right of appeal if he felt the order that had been imposed was outside of thesentencing judge’s discretion, or was otherwise unlawful. Again, Mr. Love did not make such an application. [17] The first time Mr.

Love voices any concern with the breadth or vagueness of this probationary term is in the course of thetrial. I am also mindful that it was counsel, on behalf of Mr. Love, that recommended the condition to Justice Hogg. Thatrecommendation was made only after a great deal of discussion, between Crown counsel, defence counsel, and a defence psychologist,about formulating and designing a condition that would eliminate any ambiguity for Mr. Love and to ensure that he would not commitfurther offences. [18] If I allowed this application, I would be allowing Mr.

Love to bypass those established judicial procedures that have beendesigned to address his concerns. Moreover, it would promote a “breach now challenge later approach”, which is completely contrary tothe rule against collateral attacks. [19] In the event that I am wrong in my application of the rule against collateral attack, I have gone on to consider thereasonableness of the probation condition imposed by Justice Hogg.

I am wholly satisfied that Justice Hogg adequately considered thecircumstances of the offence and the offender and that the term was reasonable in all of the circumstances. [20] Application dismissed. Released: March 3, 2011 Signed: “Justice K.P. Wright”