R v Bird: Do Not “Breach First, Challenge Later”

by Sahil Kesar

Spencer Bird (“Bird”), a long-term offender, was charged with breaching the conditions of a community supervision order prescribed by the Parole Board. At the criminal proceeding, he sought to use the defence that the order which imposed his parole conditions was unconstitutional as they violated Section 7 of the Charter. He argued that the condition that he reside in a facility that was designated a penitentiary for the community portion of his sentence breached his right to liberty. At trial, Bird was successful only to have the decision overturned and to be convicted on appeal on the basis that he could not collaterally attack the parole condition in this manner. The Supreme Court of Canada (“SCC”) drew upon the doctrine of collateral attack based on the approach developed in R v Consolidated Maybrun Mines Ltd and R v Al Klippert Ltd to determine its applicability when the constitutionality of an administrative order is challenged collaterally, rather than appealed or judicially reviewed directly.

The majority dismissed the appeal on the basis that Bird was precluded from collaterally attacking the long-term supervision order (“LTSO”) prescribed by the Parole Board. Analyzing the factors of the Maybrun framework, Moldaver J determined that Parliament could not have intended to let offenders “breach first” and “challenge later” the LTSO conditions imposed on them by the Parole Board. Further, the availability of other options for Bird to pursue his constitutional rights favoured not allowing the collateral attack especially since Parliament intended to defer to the judgment of the Parole Board, given the wording of the legislative scheme. Moldaver J did find, however, that the final factor of the Maybrun framework favoured allowing the collateral attack; however, after weighing all the factors of the Maybrun framework, Moldaver J concluded that Parliament did not intend to have LTSO conditions collaterally attacked in the case at hand and dismissed the appeal.

Martin J, in a concurring opinion, also dismissed the appeal but on the basis that the LTSO conditions did not violate the Charter, concluding that Bird could collaterally attack the LTSO conditions imposed by the Parole Board in his defence. Martin J differed in her approach to the factors enumerated in the Maybrun framework. She was of the view that allowing a collateral attack does not amount to a “breach first, challenge later” approach since breaching LTSO conditions is not a strategic plan, especially since it could potentially lead to an additional 10-year sentence. Martin J also found that none of the options listed by the majority, which Bird could have sought instead of breaching his LTSO conditions, were adequate and intended by Parliament to use in this specific legislative scheme, particularly habeas corpus. She also found that the fifth factor weighed in favour of allowing the collateral attack.

Looking at the Charter arguments, Martin J dismissed the Section 9 and 11 arguments on the basis that this was not an exceptional case where she should hear Charter arguments not previously raised. On the Section 7 argument, Martin J disagreed with Bird’s arguments that the residency condition imposed on him was arbitrary. She found that the broad definition of penitentiary does not amount to him being forced to serve an arbitrary extension of his carceral sentence. She also found that the distinctions between other parolees and long-term offenders do not indicate that long-term offenders were not to be housed where Bird was being forced to reside. Ultimately, Bird’s residency condition was within the ability of the Parole Board to impose and was based on his particular circumstances.

The Asper Centre intervened in this appeal. The Centre made four submissions:

  1. First, the Asper Centre’s sought to have constitutional considerations made explicit in the Maybrun This was based on two assertions. First, Maybrun was not a constitutional case but the jurisprudence it drew on provided for the balancing of legislative intent against constitutional considerations. Particularly, the US jurisprudence points towards the idea that courts should not ignore a defendant’s constitutional rights or the practical availability of prescribed remedies when deciding whether to permit a collateral attack on an administrative order. Second, the Maybrun framework implicitly permits constitutional considerations. Since the framework is intended to protect the rule of law by determining the legislature’s intended forum for relief, it must do so in a way that encourages compliance with the constitution because the principle of constitutionalism requires state action to comply with the constitution. Divorcing Charter rights from the Maybrun framework creates a perverse situation where an administrative decision is neither rooted in law nor constitutionally compliant.
  2. Second, the Asper Centre sought to have the repute of the administration of justice included as an enumerated factor under the Maybrun Denying a collateral attack when Charter rights are at stake would bring the administration of justice into disrepute, as shown in certain other examples.
  3. Third, with emphasis on seeking judicial review in Federal Court, the Asper Centre sought to have access to justice considered in the Maybrun Judicial review in Federal Court is not timely or accessible for three reasons: 1) the requirement to exhaust complex and ineffective internal reviews; 2) the difficulty in obtaining deadline extensions in Federal Court; and 3) the protracted time period required to obtain judicial review.
  4. Fourth, allowing collateral attacks does not prejudice the Crown. There is no impact on the standard of review. The Crown asserted that allowing the collateral attack would distort the standard of review since constitutional questions would be considered under correctness instead of reasonableness. However, reasonableness would be applied under Dore, not correctness as they assert.

Moldaver J for the majority, asserted that the two principles that underlie the approach to collateral attacks on court orders are accounted for in the Maybrun framework for administrative orders. The framework adequately balances legislative intent with ensuring effective means for recourse to individuals challenging administrative orders. As such, this rejects the notion that constitutional considerations or the repute of the administration of justice (submissions one and two of the Asper Centre) need to be explicitly included since the framework already accounts for the rule of law and the repute of the administration of justice.

Moldaver J made reference to the Asper Centre’s third submission at paragraph 57. He accepted that there are realistic concerns over timeliness and accessibility of relief in Federal Court and that efficiency and timeliness are of greater importance when liberty is concerned. However, he held that Bird received notice of the Parole Board’s decision to impose residency conditions five months before his long-term supervision commenced, therefore giving him ample time to seek judicial review. Moldaver J stated that concerns about timeliness of judicial review was speculation and that Parliament might want to consider whether the procedures in place governing judicial review could be modified to provide more timely and accessible relief. However, he did not make access to justice a consideration in the Maybrun framework. Martin J, in her concurring opinion also accepted that Bird would have been unlikely to have the resources to secure counsel or self-represent himself for the purpose of navigating judicial review proceedings. She did consider the access to justice issues that this raises as the absence of an internal appeal process cannot mean Parliament intends individuals to navigate Federal Court.

Neither the majority nor the concurrence directly addressed the Asper Centre’s fourth submission.

Read the Asper Centre’s Factum in the Bird Appeal here.

Sahil Kesar is a 3L JD Candidate at the University of Toronto Faculty of Law and is currently the Asper Centre half-time Clinic student