Her Majesty the Queen - v. -, 2016 SKPC 28

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 028 Date: February 19, 2016 Information: 90010344 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Spencer Dean Bird Appearing: Messrs. Kim Jones & Theodore Litowski For the Crown Ms. Marcia Jackson For the Attorney General of Canada Mr. Leif Jensen For the Accused JUDGMENT B.D. HENNING, J BACKGROUND, CASE HISTORY AND FACTS [ 1 ] This is a prosecution brought under

section 753.3(1) of the Criminal Code of Canada

(hereafter “the Criminal Code ”) against Spencer Dean Bird for failing to comply with a condition of a Long Term Supervision Order (LTSO) that commenced April 22, 2010. The charge alleges that he was required to “reside at a community correctional centre or a community residential facility or other residential facility (such as private home placement) approved by the Correctional Service of Canada for a period of 180 days”. The Criminal Code

section provides as follows: 753.3(1) An offender who, without reasonable excuse, fails or refuses to comply with long-term supervision is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years [ 2 ] The Order in question is Exhibit P-1, issued by the Provincial Court at Prince Albert. It is dated May 27, 2005, and the Accused was sentenced to a term of fifty-four months imprisonment, consecutive to all other matters, and designated as a long-term offender under the then provisions of the Criminal Code , and to be supervised in the community for a period of five years pursuant to

section 753.1(3) (

b) of the Criminal Code from the time of release from imprisonment. [ 3 ] An Agreed Statement of Facts became Exhibit P-2. To summarize it briefly, the Parole Board of Canada (hereafter “Parole Board”) made a “Pre-Release Decision” dated July 15, 2015, that contained conditions imposed under long-term supervision, with reasons for same attached as “Appendix A” to Exhibit P-2. The Parole Board has authority and responsibility to supervise and administer a LTSO, and this was not raised as an issue in this case. Actual administration is carried out by the Correctional Service of Canada (CSC).

The Agreed Statement of Facts, also included “Appendix B”, which is a detailed social history of Mr. Bird with his criminal offences, his history of compliance with conditions of release and supervision and inter alia , personal issues and assessments. The Order issued was the result of a review of all file information as well as a recommendation of the CSC. Mr. Bird was the subject of several special conditions, which included a condition of residence alleged to be authorized under

section 134.1(2) of the Corrections and Conditional Release Act . The text of that condition is: “Reside at a community correctional centre or a community residential facility [ abbreviated hereafter in this Judgment as ‘ CCRF/CRF’] or other residential facility (such as a private home placement) approved by the Correctional Service of Canada, for a period of 180 days.” It is apparent this is a condition that allows

interpretation by those administering the Order (possibly a parole officer, representing the Correctional Service of Canada, but that was not stated in argument) as several residence options are set out. Further, it is not clear when the period of 180 days applies. Presumably, it means at the beginning of the supervision period, and that is how it was applied, but it could mean at any time in the five year supervision period, or even for multiple periods of 180 days. Mr.

Bird’s preference is and was to return to the Ahtahkakoop First Nation and reside with his brother there. [ 4 ] The facts in this case were further set out in the P-2. The Accused was released from a Federal Institution in Alberta on August 14, 2014, on that same day, he arrived in Regina and was taken to that institution. He resided there until January 28, 2015, when he failed to return to the Oskana Community Centre at the required time, and he was not in contact with supervision authorities until his arrest on April 16, 2015.

He has been in custody since that time, April 16, 2015, a period of approximately ten months. If this is made equivalent to a sentence of imprisonment, with the most common credit for time on remand, the sentence calculation totals fifteen months. This is a period in excess of the sentence determined appropriate in R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 which considered many issues relating to long-term supervision orders, including sentence. That period of time in custody is also much in excess of the residence time that would have been required in a CCRF/CRF.

The Accused indicated throughout from the time of being charged that he was contesting it, that he wanted to challenge the validity of the release decision, and that he required legal counsel to assist him. After withdrawal of services by Legal Aid in Regina, court appointed counsel became involved in his case.

A plea of not guilty was entered and the matter set for trial on January 16, 2016. [ 5 ] As noted, the residence condition requires the Accused to have residence in a ‘CCRF/CRF’ or “other residential facility (such as private home placement) approved by the Correctional Service of Canada , for a period of 180 days” [emphasis added]. Thus, although the decision of the Parole Board is elaborated upon in “Appendix A”, and chooses the option of CCC/CTR, it is open for the CSC to determine the application of the second alternative of private home placement.

It was never considered in argument why this wording with a clear alternative was included by the Parole Board in its decision, but the wording was probably intended to accommodate a wider range of options for residence after the 180 day requirement of residence in CCC/CTR that would apply throughout the period of supervision. The drafting might be improved upon, but the condition is not so ambiguous as to fail for that reason. [ 6 ] The Defence served a Notice of Charter Application alleging that the Parole Board

could not make conditions as to where a long-term offender could reside without infringing upon

section 7 , of the Canadian Charter of Rights and Freedoms , and requesting a declaratory judgment to that effect. This application was abandoned at the outset of the trial as the relief requested is not within the jurisdiction of this Court to grant. It was agreed that the issue in this case is proof of the breach of the condition imposed by the Parole Board. The facts on which the breach may be proven are not in dispute. The validity of the condition is attacked by the Defence, thereby raising the collateral question of the jurisdiction of the Parole Board to impose the condition.

The condition is attacked as being in breach of the Charter , and the Defence asks that the Court determine there is no valid condition that was breached by the Accused. Notwithstanding that the relief sought by the Defence has changed, the Crown for Saskatchewan and Canada have not suggested that they did not have adequate notice of the issues being raised. [ 7 ] It was originally proposed that the trial proceed with a voir dire on the validity of the Parole Board Decision in question.

However, as that question is the only question of the trial, it was agreed that the trial would proceed without a voir dire , and the decision in the trial would address any issues relating to the Charter . As the case involves no question of fact, it was concluded that the conduct of a voir dire would represent an additional step, but not have any significant purpose in this particular case. The legal questions are the same whether dealt with as ultimate trial issues, or within a voir dire .

There is no factual basis of the argument to be determined by the Court—that has been done with the Agreed Statement of Facts. The case was argued by the Defence on the basis that if the legislation authorizing the residence requirement, or the particular decision made, infringes the Charter of Rights , it becomes invalid and the prosecution fails.

However, it was emphasized in initial discussion that the only jurisdiction that the Court might exercise is to determine guilt or innocence on the charge. [ 8 ] Under some circumstances, constitutional considerations may be considered and could result in a finding as a collateral issue that either or both the legislation or the particular decision condition was invalid. However, any other implications of such a conclusion would not be for this Court to consider.

Given this limited issue, there can be no factual situation that requires the well-known rules in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 to be considered to determine whether particular evidence should be excluded. DEFENCE ARGUMENT [ 9 ] The onus is on the Defence to establish if a breach of the Charter of Rights exists, or if the legislation is void or voidable for other constitutional reasons. The basis of the alleged breach is that the residence requirement was very broad, and required residence in the Oskana Community Correctional Centre in Regina, which is a penal institution.

There was some discussion of this institution though it was not described in any detail. It was admitted to be a Federal penal institution, not different in its legal status from a higher security penitentiary.

It follows, that if residence may be required in this institution for an offender subject to long-term supervision, residence in a maximum security institution is also possible, and further, that the Parole Board may determine any period of time up to the length of the supervision order for such a residence requirement. [ 10 ] If the forgoing is correct, any supervision order has the potential to become incarceration in a penal institution at whatever level of security that is considered appropriate by the administering authority, the CSC.

The Defence has challenged the authority of the Parole Board to make any residence condition. In my opinion, it is possible that the Crown arguments in favour of allowing residence conditions may be valid, but limited by

section 7 of the Charter to restrict the authority asserted by the Crown to make long-term community supervision occur within a penal institution. It is important to note that Corrections and Conditional Release Act, SC 1992, c 20 ( CCRA ), governs several categories of offenders. Some are still subject to a warrant of committal that is in effect when under conditional release or parole. This is a significant difference from long term supervision orders.

These latter orders are by their nature strict community-based orders, but they are not convertible to imprisonment in the way that is possible with persons in the other categories. [ 11 ] It is clear that the Oskana Centre is a strictly controlled penal institution. Mr. Bird was required to follow the same conditions at Oskana as any other resident. This included a prohibition from leaving the City of Regina. Mr. Bird was not allowed to come and go unrestrictedly from Oskana, but was required to be at Oskana from 11:00 a.m until 1:00 p.m. Mr. Bird also had a night curfew (the hours of the curfew varied).

Living at Oskana also imposed restrictions on Mr. Bird’s mobility which severely limited his ability to visit his sick mother who was at a hospital in Saskatoon, or attend his brother’s funeral. [ 12 ] The question of whether this institution was required for Mr. Bird’s rehabilitation and development and for public protection is not the issue in this trial. It is not for this Court to weigh the discretion behind the decision of the Parole Board. The only consideration is one of constitutional validity, if that may be considered, which is disputed by the Prosecution.

Supervision of the order is given over to the CSC under the CCRA . Apart from a direct attack on the validity of the decision

containing the impugned condition, the Defence has also asserted a variation of an attack, that a lack of constitutionality of the underlying order may give rise to a reasonable excuse for non-compliance which is contemplated by

section 753.1(1) of the Criminal Code . In my opinion, this argument is based upon a consideration of the same constitutional issues, but it suggests that an offender make the decision respecting compliance rather than having it made by the Court in the context of a trial for breach of the Order. In effect, that is what has happened in this case, and now gives rise to these issues.

This appears to be a distinction with little difference. [ 13 ] An excellent introduction to the doctrine or concept of collateral attack on a subject other than the specific proceeding at hand such as legislation, and orders based on impugned legislation, is contained in paragraphs 5:0300 and following of “ Judicial Review of Administrative Action in Canada,” by Donald J. M. Brown, QC and the Honourable John M Evans, Volume 2, Carswell [December 2014].

The case of R v Al Klippert, [1998] 1 SCR 738 is cited which contains the following at page 746 as factors to consider in determining consideration of collateral attack: (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’etre of the administrative appeal tribunal; and (5) the penalty on conviction for failing to comply with the order. [ 14 ] Different sections of the CCRA govern parole suspension and community supervision suspension. (These issues are discussed at paragraphs 13 and following the Defence Brief, and paragraphs 15 and following the Crown Brief.) The Crown points out the parallels between the wording of the sections pertaining to supervision orders setting out powers of supervision through conditions and actual carrying out of supervision to the parole and other forms of release.

However, it must be kept in mind that the two situations are not the same: a paroled person is still subject to a warrant of committal to imprisonment, as is a person on statutory release. A person subject to long-term supervision is at liberty in the community, subject to the powers of supervision and the imposition of lawful conditions set by the Parole Board. There is a specific procedure of enforcement upon breach or anticipated breach in

section 135.1(1) of the CCRA , which is different from the provisions relating to parole breach. 135.1

(1) A member of the Board or a person designated, by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of a long-term supervision order or a condition referred to in

section 134.1 or when the member or person is satisfied that it is necessary and reasonable to suspend the long-term supervision in order to prevent a breach of any condition of it or to protect society, may, by warrant, (

a) suspend the long-term supervision; (

b) authorize the apprehension of the offender; and (

c) authorize the commitment of the offender to a community-based residential facility or a mental health facility or, where the member or person is satisfied that commitment to custody is necessary, to custody until the suspension is cancelled, new conditions for the long-term supervision have been established or the offender is charged with an offence under

section 753.3 of the Criminal Code . [ 15 ] The Defence position is that

section 134.1(2) of the CCRA does not permit the imposition of residence conditions. It does provide broad discretion, but not specific authority regarding residence. It states:

134.1

(1) Subject to subsection (4), every offender who is required to be supervised by a long-term supervision order is subject to theconditions prescribed by subsection 161(1) of the Corrections and Conditional Release Regulations, with such modifications as thecircumstances require.

(2) The Board may establish conditions for the long-term supervision of the offender that it considers reasonable and necessary in orderto protect society and to facilitate the successful reintegration into society of the offender. ………..

(3) A condition imposed under subsection (2) or (2.1) is valid for the period that the Board specifies.

(4) The Board may, in accordance with the regulations, at any time during the long-term supervision of an offender, (

a) in respect of conditions referred to in subsection (1), relieve the offender from compliance with any such condition or vary theapplication to the offender of any such condition; or (

b) in respect of conditions imposed under subsection (2) or (2.1), remove or vary any such condition. 134.2

(1) An offender who is supervised pursuant to a long-term supervision order shall comply with any instructions given by a memberof the Board or a person designated, by name or by position, by the Chairperson of the Board or by the Commissioner, or given by theoffender’s parole supervisor, respecting any conditions of long-term supervision in order to prevent a breach of any condition or toprotect society. [16] The Defence argues that

section 135.1(1) of the CCRA pertaining to long-term supervision does not permit designation of residence except in one particular circumstance of apprehension of a person if a breach of acondition has occurred, or appears imminent. In that case the person may be subject to apprehension. Mr. Bird at the outset of hissupervision period was not in breach of any condition. The Defence further argues that a community-based residential facility is definedas a place providing accommodation to offenders on parole, statutory release or temporary absence, and that to allow

interpretation of theCCRA require such residence for supervision of an offender who is not in one of those three categories is contrary to the rules ofinterpretation of the provisions applicable to CCRA’s.

The Defence points out that the language of the various provisions to emphasizethe fact that a long-term offender is not referred to as an “inmate” as the term is not accurate or appropriate in describing such a person,and this language is consistent with supervision in the community. [17] Notwithstanding that Defence challenges the authority of the Parole Board to impose residence conditions, it was not contested that the Parole Board may impose conditions of supervision that limit liberty in some areas,such as right of association, use of legal substances such as alcohol, and other conditions that are not fully defined.

The Defence arguesthat the Parole Board is created by statute and can only exercise powers specifically granted, or granted by clear implication to powersthat are granted. However statutory

interpretation also permits the inclusion of necessary provisions where the original legislation wouldclearly imply such inclusion or elaboration. [18] Both the Crown and Defence have considered and argued the case of Normandin v Canada, 2005 FCA 345, [2006] 2 FCR 112 which is cited as the only case where a Parole Board residence requirement was considered,and upheld. The Defence argues that Normandin is neither binding nor persuasive case authority as it did not consider Charter rightswith respect to residency, and it was prior to other cases of significance that have developed this area of law. As well, Normandinappears to have relied upon authority to designate a residence under

section 135.1 of the CCRA which is discussed herein at paragraph16. I accept that

section 135.1 of the CCRA is specific to situations of breach or anticipated breach, and is not a general authority todesignate residence. The Normandin case considers parole and long-term supervision provisions and finds sufficient parallels to permitimposition of residency conditions under the general authority for long-term supervision. [19] I would distinguish parole and long-term supervision in one essential aspect: parole is a release under conditions from asentence of imprisonment, and a paroled inmate can be returned to original conditions of incarceration.

This is not the case with long-term supervision which has a specific custodial and non-custodial aspect of the sentence which are not interchangeable, though a returnto custody is allowed for breach of an order. This concept is discussed in R v L.M., 2008 SCC 31, [2008] 2 SCR 163, and the purposeand characteristics of imprisonment and long-term supervision are considered and distinguished. [20] The Normandin case has been considered and applied in some other cases, which also blur distinction between parole and long-term supervision.

An example of this is Hurdle v Canada (AG), (2011) 2011 FC 599 ,FCJ No. 779 cited by the Crown for Canada. In that case, a long-term offender had numerous complex conditions upheld, including aresidency condition. Counsel for Canada has also cited in her brief other cases that establish broad discretion in the Parole Board

imposing conditions for parole and conditional release. There are cases where significant conditions were imposed on long-term offenders, but not always a residence condition. These cases are in support of the argument that such powers are necessary for proper protection of the public and for reform of the offender.

It does not appear that the issue of residency was considered in relation to Charter protections in any of these cases. [ 21 ] The Defence has countered by citing cases which have considered the nature and purpose of long-term supervision, and in particular, the landmark Supreme Court case, R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 .

In that case, which followed a number of the cases cited by the Crown for Canada, the Court considered the nature of long–term supervision, noting: The rationale for the dangerous offender designation can be contrasted with that of the long-term offender provisions, were not introduced to the Criminal Code until 1997. That year, extensive amendments were made to

Part XXIV of the Criminal Code by Bill C- 55….. These amendments, following the recommendations of the Federal/Provincial/Territorial Task Force on High-Risk Violent Offenders (“Task Force”), introduced the long-term offender designation and the availability of LTSOs. The Task Force noted that a lacuna existed in the law whereby serious offenders were denied the support of extended community supervision, except through the parole process.

LTSOs were designed to fill this gap and supplement the all-or-nothing alternatives of definite or indefinite detention (Report of the Federal/Provincial/Territorial Task Force on High-Risk Violent Offenders, Strategies for Managing High-Risk Offenders (1995)). [ 22 ] The Supreme Court went on to discuss the purpose of an LTSO at paragraph 47 and following, and the Court placed rehabilitation of the offender on an equal basis with protection of the public, specifically rejecting the then accepted discussion of principles contained in R v W. (H.P.) , 2003 ABCA 131 which had been applied in other jurisdictions.

The case did not specifically consider questions relating to conditions of LTSOs, but did extensively discuss issues relating to Aboriginal offenders. [ 23 ] The Defence argues for a restrictive

interpretation of the powers of the Parole Board in setting conditions where they concern residency, which is alleged to be a restriction of liberty and security of the person under

section 7 of the Charter . The Defence also argues that the power has been exercised arbitrarily, without rational cause, which was strongly contested by counsel opposite in their arguments. The Defence also suggests that the residency clause is over-broad, meaning that it is so broad in scope that it includes some conduct that bears no relation to its purpose intended. The Defence suggests that the broadness is only for ease of enforcement. This is developed somewhat in argument, and certainly if the offender is kept in a penal institution, administration of the order is simplified in some aspects.

However, as the offender is intended to eventually be at liberty, community supervision is central to the scheme. However, knowing where Mr. Bird is may have some utility for rehabilitative purposes as well. The drafting of the condition does permit other designations for residence that would include what Mr. Bird wishes, at some point. The specific

interpretation of the condition has been delegated to the Correctional Service of Canada, who will be influenced by other material attached to the Parole Board decision, and other considerations. The residence provision allows wide discretion, but the condition must apply over a five year period in which the offender may undergo development and change, with consequent changes in residence needs. [ 24 ] The Defence further argues that the enabling provision is void for vagueness.

The principle against vagueness requires that where a range of options is available to a body imposing sanctions or conditions, the option must be indicated in the legislation, or the legislation will not satisfy the principle against vagueness. This occurs when discretion is not limited by any clear or rational principle. The objects of long-term supervision is to rehabilitate the offender and also to protect the public.

The maintenance of residence in a penal institution provides protection to the public, but it may go beyond what is justified given the other objects of supervision by restricting liberty in a severe way when it is not intended to be incarceration. It was argued by the Prosecution that a residence condition is fundamental and necessary to the overall scheme of supervision, that includes residence in institutions such as Oskana. [ 25 ] In

summary, the Defence alleges that the powers attributed to the Parole Board under

section 131.1(1) of the CCRA to make the residence conditions over-broad, vague, and contrary to the principles of fundamental justice in permitting unfettered discretion, in this case resulted in depriving the offender of liberty. The Defence argues that the enabling

section for the residence condition in the decision is void for offending sections 7 of the Charter , and any specific order with respect to residence is void also.

Section 131.1(1) of the CCRA infringes

section 7 of the Charter . Alternatively, or in addition, the Accused would be justified in not complying with the condition because of these considerations. Implicit in this argument is the conclusion that a collateral consideration of the validity of the decision on which the charge is based is appropriate, and the condition of residence is not enforceable.

PROSECUTION ARGUMENTS [26] As noted already, the Crown argues that the power to impose conditions, and particularly conditions of residence to facilitate supervision in the community, is essential to the scheme of supervision of long-term offenders. TheCrown argues strongly against any collateral consideration of

section 7 of the Charter with respect to the Parole Board’s decision andconditions. The Crown cites decisions that uphold jurisdiction and discretion of the Parole Board and Tribunals, and protect them fromcollateral attack. The Crown in particular relies upon the Normandin decision cited previously.

The Crown argues that great harm wouldbe done if any such review were to occur and would result in inconsistencies of operation of the scheme in various jurisdictions. [27] At paragraph 56 and following, the Crown for Saskatchewan Brief cites numerous cases where collateral attack has not been permitted in both criminal law and other contexts. In a great number of these cases there was a rightof appeal or review that had not been pursued, and a collateral attack on an order or legislation occurred as part of the Defence to acharge, as is the case here.

However, the decision of the Parole Board is not appealable or reviewable, except by judicial review in asuperior court. There is great merit to the proposition that any administrative or court order is valid until set aside and must be compliedwith rather than ignored at the whim of the person affected. The Prosecution argues that there is no circumstance where an inferior courtmay consider a collateral attack on an order that is regular on its face that is an essential part of a prosecution.

The Prosecution seeks todistinguish the few cases where such an attack has been allowed such as in R v Nash, 2004 ONCJ 57, 119 CRR (2d) 277 where the judgenoted: [36] That issue, I think, requires consideration of the nature of the pre-conditions imposed by Dr. Abracen. As a judgepresiding at a preliminary inquiry, this court is clearly not a court of competent jurisdiction for purposes of granting remedies under s. 24of the Charter: see R. v. Mills (1986), (SCC), 26 C.C.C. (3d) 481, 52 C.R. (3d) 1 (S.C.C.); R. v. Hynes (2001), 2001SCC 82 , 159 C.C.C. (3d) 359 (S.C.C.).

That does not mean, however, at least in my view, that if the pre-requisites imposedinvolve a violation of Mr. Nash’s Charter rights, that is not relevant to the determination of whether or not Mr. Nash had a reasonableexcuse for failing to comply with the National Parole Board’s counselling condition.

Neither does it prohibit the preliminary inquiryjudge from taking into account such constitutional concerns in deciding whether it would be open to the trier of fact to make a findingother than that the accused had a reasonable excuse that exempted him from criminal liability and, to put it in the terms of the Sheppardtest , precluded a guilty verdict.

This case is a determination of committal on a preliminary hearing where the judge looked behind the perquisite requirements foracceptance into counselling, which the person had been charged with failing to comply with, as a condition imposed by the Parole Board.This is analogous to the situation in the present case. The Prosecution suggests that this case is wrongly decided.

The Defence brief doesnot show any other cases where an inferior court permitted a collateral attack as a Defence to a prosecution based upon the impugneddocument or order. [28] Other issues raised by the Defence are considered in the Crown Brief: vagueness at paragraph 68, overbreadth and arbitrariness at paragraph 94, and avoiding ‘blunt instruments’ at paragraph 106. The Crown Briefstrongly argues the expertise of the Parole Board in exercising its jurisdiction, and the great harm that would be done impairing itsdiscretion to order conditions of residency.

Numerous references are made to illustrate that residency requirements may be imposed inmany contexts including parole and statutory release, as well as in court orders for probation and conditional sentences. DISCUSSION AND CONCLUSIONS [29] The first issue that must be resolved is the question of whether a consideration of the validity of the Parole Board Decision may be entertained. This pertains to the condition of residency, the breach of which is the basis forthe charge and prosecution. This is a collateral attack on the underlying basis of the charge.

Regardless of the extensive Defenceargument against Parole Board jurisdiction to make a residence condition, that issue cannot be approached without consideration of theability of this Court to consider the collateral issue of the Parole Board Decision. [30] The Supreme Court decision listed the following, non-exhaustive considerations for entertaining a collateral consideration ofan order or other basis of a penal prosecution. (

a) The wording of the statute under the authority of which the order was issued; (

b) the purpose of the legislation;

(

c) the existence of a right of appeal; (

d) the kind of collateral attack in light of the expertise or raison d’etre of the administrative appeal tribunal; and (

e) the penalty on conviction for failing to comply with the order. [31] However, the Klippert case must be considered for more than its direction of when a collateral attack may be consideredappropriate. The case also provides some direction on the question of what court or tribunal may consider an issue of collateral attack. Inthat case, the original prosecution had occurred in the Provincial Court of Alberta for failure to comply with an order issued under theauthority of the Planning Act, R.S.A. 1980, c. P-9.

Klippert was acquitted at trial on the basis that the activity had been authorized atsome point in the past, and that the subsequent order was not valid. The case then went to appeal in the Court of Queen’s Bench where itwas determined that the trial judge could not (or should not) have questioned the validity of the order because there existed a reviewmechanism to challenge the order—essentially an improper application of the principles for consideration of a collateral issue.

From theSupreme Court decision, this first appeal does not appear to have been determined by a lack of inherent jurisdiction of the ProvincialCourt, but by the fact that there was jurisdiction elsewhere to conduct a review (the Development Appeal Board). That made thedetermination in Provincial Court was a misapplication of discretion to permit collateral attack. In the Court of Appeal for Alberta, itwas determined that the Provincial Court judge did correctly exercise jurisdiction to determine the merits of the order in a penalproceeding.

There was no question of the Provincial Court’s ability to consider the issue. R v Consolidated Maybrun Mines Ltd, (SCC), [1998] 1 SCR 706 is very similar, having begun in the Provincial Court and gone through two levels of appeal beforeit came to the Supreme Court for consideration.

Collateral consideration was also ruled as inappropriate, but there was no suggestionthat the original trial court could not consider such an issue in the proper circumstances. [32] In Kippert, L’Heureux-Dubé, J stated that the issue at paragraph eleven, and at paragraph 28 observed the following: “I conclude that the Planning Act does not authorize a person affected by an order to disregard the appeal procedure before theDevelopment Appeal Board and then to seek to collaterally attack the order by way of defence to a penal charge.

The trial judgeaccordingly lacked jurisdiction to determine the merits of the order.” [33] This appears to suggest that the error of the trial judge was in permitting collateral attack given the appeal process thatexisted, which resulted in the overturning of the decision. In this sense it was a lack of jurisdiction in considering the underlying validityof the order. It was not suggested in the Supreme Court, or in the Court of Appeal, that collateral attack was a matter only to beconsidered as part of a judicial review.

It appears from all of the discussion that a collateral attack may be allowed in any penalproceeding, if the merits of exercising that discretion are sufficient. The original conclusion to permit collateral attack at the ProvincialCourt level was not challenged for inherent lack of court jurisdiction. The Supreme Court decisions in both Klippert and ConsolidatedMaybrun Mines Ltd do not suggest that a collateral attack is impossible at the Provincial Court level, but that in these particular cases, itwas not appropriate to do so.

In doing so, that is, considering the merits of the order, the Provincial Court made a jurisdictional error thatwas reversed. But the case does not appear to be authority for the proposition that the Provincial Court cannot consider a collateral issue.As a result of the Klippert case, I conclude that this court may consider a collateral attack on the order in question, subject to theprinciples and ruling contained in that case.

For that reason, I will continue with a consideration of the merits of the Defence argumentsto conclude the condition of residence in the Parole Board Decision was invalid. [34] The wording of

section 134.1 of the CCRA adopts the conditions set out at

section 161 of the Corrections and Conditional Release Regulations, SOR/92-620. The regulations do not specifically authorize conditions ofresidence, though there is a reference to residence at section 161(1)(a). The

section is as follows: 161

(1) For the purposes of subsection 133(2) of the Act, every offender who is released on parole or statutory release is subject to the following conditions, namely, that the offender (

a) on release, travel directly to the offender’s place of residence, as set out in the release certificate respecting the offender, andreport to the offender’s parole supervisor immediately and thereafter as instructed by the parole supervisor; (

b) remain at all times in Canada within the territorial boundaries fixed by the parole supervisor; (

c) obey the law and keep the peace; (

d) inform the parole supervisor immediately on arrest or on being questioned by the police; (

e) at all times carry the release certificate and the

identity card provided by the releasing authority and produce them on request for identification to any peace officer or parole supervisor; (

f) report to the police if and as instructed by the parole supervisor; (

g) advise the parole supervisor of the offender’s address of residence on release and thereafter report immediately (

i) any change in the offender’s address of residence, (ii) any change in the offender’s normal occupation, including employment, vocational or educational training and volunteer work, (iii) any change in the domestic or financial situation of the offender and, on request of the parole supervisor, any change that the offender has knowledge of in the family situation of the offender, and (iv) any change that may reasonably be expected to affect the offender’s ability to comply with the conditions of parole or statutory release; (

h) not own, possess or have the control of any weapon, as defined in

section 2 of the Criminal Code , except as authorized by the parole supervisor; and (

i) in respect of an offender released on day parole, on completion of the day parole, return to the penitentiary from which the offender was released on the date and at the time provided for in the release certificate. [ 35 ] As already noted, the Parole Board does have jurisdiction to make some types of condition that are mandatory and enforceable for long-term offenders. As discussed by the Supreme Court in Ipeelee , it is now clear that rehabilitation through supervision in the community is one of the objects, as well as protection of the public.

Some types of residence requirements in the community may be inferred, in my opinion, as essential for effective supervision, in accordance with the arguments raised by the Prosecution. However, the imposition of effective incarceration is a step beyond community supervision and removes the offender from the community.

The scheme of long-term offender supervision, in my opinion, contemplates supervision following incarceration. [ 36 ] Thus, I accept the argument of the Prosecution that a residence requirement is reasonably within the scheme of supervision contemplated, and this addresses the first two points of the principles enunciated in Klippert. There is no right of appeal from the decision of the Parole Board, which is the third consideration in Klippert .

With respect to the fourth principle, the Parole Board is a body with a specific mandate with technical expertise that includes exchange of information with the CSC on inmates eligible for release under various programs. It has expertise in considering the state of offenders and issues relating to public protection. Notwithstanding that expertise, the question here is one of compliance with

section 7 Charter rights, as well as the operation of a special statutory scheme of community supervision which has been discussed above. [ 37 ] The expertise of the Parole Board is one of practical management of inmates and offenders, and does not extend to the legal questions of actions that may be acceptable in one legal context, but would constitute infringement of Charter rights in another. In addition, a failure to comply with a condition of long-term supervision carries a maximum penalty of up to ten years imprisonment.

This is a very significant consideration in the question of whether an order with potentially invalid conditions might be enforced in a penal prosecution with such a penalty. The seriousness of breaches and the range of sentences upon breach were considered in Ipeelee . They are very serious, and this raises the level of concern that authority be exercised appropriately. [ 38 ] The Defence relies upon Westfair Foods Ltd. v RWDSU Local 454, (1993) 110 Sask. R

139 (SKQB) where the Labour Relations Board had exceeded its jurisdiction by ordering monetary compensation. The Court determined that broad though the powers of the Labour Relations Board were, it could not exercise a major jurisdiction not granted to it, and monetary enforcement was not permitted. In reaching this conclusion, the original order of the Labour Relations Board was concluded to be invalid. It must be noted that this was a decision of a superior court exercising prerogative jurisdiction.

Nonetheless, in light of the analysis of Klippert above, I do not conclude that consideration of a collateral issue is exclusively limited to a superior court judicial review, although the powers of a court to deal with an invalid order would be significantly different. The Westfair case is instructive here as to when a collateral issue may be considered.

The Defence argument compares Westfair where monetary compensation was ordered without authority, to the Parole Board in the present case where it is argued to have removed the liberty of the offender by placing him in another penal institution after having served a long term of incarceration imposed as part of the original Court’s sentence. [ 39 ] The residence requirement in this present case did not involve residence in a high security institution which would have placed greater restrictions on liberty, but the institution in question did have real restrictions and is a penal institution.

If the arguments of the Prosecution are accepted, I can see no limitation that would apply to the level of incarceration mandated by the Board. However, this court must consider and assess only the facts as they are in this case. Ipeelee considers the scope and purpose of long-term supervision in detail, and I find that nothing in the legislation or judicial consideration of the program that would suggest or authorize incarceration as a part of long-term supervision.

This is not the case with parole or other early release programs where the person is the subject of a sentence of imprisonment and is conditionally released from it. I am of the opinion that the Normandin case, which preceded Ipeelee , does not maintain that distinction and is therefore not a helpful authority in deciding the collateral attack issue in this case. [ 40 ] For this reason, I accept the argument of the Defence in part that the decision of the Parole Board in imposing a residence condition in a penal institution was a significant breach of

section 7 of the Charter . Some residence requirements would, however, be clearly within the specific and implied authority of the Parole Board in managing the long-term offender supervision scheme. I accept the Prosecution arguments that supervision in the community does require the ability to determine suitable residency in the community . However, I conclude that the condition of residence in a penal institution is further than any implied authority or jurisdiction that exists, and is contrary to the overall scheme of long-term community supervision, and is also a major breach of

section 7 of the Charter, in the circumstances of this case. [ 41 ] Having reached this conclusion, the question still remains whether the Parole Board Decision which is presumed valid should be considered unenforceable in this prosecution. This Court is not a court of superior jurisdiction, and does not have the ability to rule on a loss of jurisdiction as was the case in Westfair to quash an order for monetary compensation.

The question can only be whether the court will conclude that the Order of the Parole Board in this one aspect of residence, the breach of which is an essential ingredient of the offence charged, may be considered void and the charge be dismissed on that basis. This is the collateral consideration discussed. It is very similar to the situation in Klippert where the trial judge acquitted because of an attack on the validity of the underlying order.

For reasons above, I have concluded that Klippert was overturned for a failure to correctly apply the criteria for collateral attack, and not because such a consideration was unavailable to the trial court. [ 42 ] I conclude that residence in a penal institution offends

section 7 Charter rights, and is inconsistent with the scheme of supervision of a long-term offender who has not breached, or appears about to breach, a condition which would permit apprehension by parole authorities. Non-compliance with the residence condition must be proven as an essential ingredient of the charge. I have concluded that the residence condition is not legally valid, and for that reason I conclude that the prosecution must fail as there is no breach of a requirement which is recognized at law. Therefore the breach is not proven. The charge stands dismissed. Dated at the City of Regina, this 19 th day of February, 2016. ____________________________ B.D. Henning, J