For the Birds? Collateral Challenge, Legislative Intent and Public Law Remedies in R v Bird 2019 SCC 7

Found to be a long-term offender and known to be someone who struggled with conditional releases from custody, Mr Bird was made subject by the Parole Board of Canada to a long-term supervision order, which included a residency requirement. Mr Bird breached the residency requirement and criminal proceedings were duly initiated, carrying a penalty of up to 10 years’ imprisonment. But Mr Bird wished to argue at trial that the Board’s order breached his Charter rights. In R v Bird 2019 SCC 7, a majority of the Supreme Court of Canada, per Moldaver J, held that he could not collaterally attack the order in criminal proceedings (with Martin J disagreeing on this point in her concurring reasons, although she held on the merits that there was no Charter breach anyway).

Although I am persuaded about the appropriate disposition of the case, the Court’s analytical framework is unconvincing to me, first, because it relies heavily on discovering a “legislative intent” which, in this instance, is simply non-existent and, second, because it obscures the central problems raised by this case: the apparent incompatibility between the regulatory regime and the Charter rights of all offenders (not just Mr Bird); and the Court’s anaemic jurisprudence on damages in public law litigation.

On the first point, the Court applied the framework laid out in R. v. Consolidated Maybrun Mines Ltd., 1998 CanLII 820 (SCC), [1998] 1 S.C.R. 706. There, legislative intent was central, in the sense that there was a fully worked out statutory scheme, such that the company (which had refused to comply with an order to take corrective action in relation to a contaminated site) had rights of appeal which provided an appropriate forum to raise complaints that it had not been lawfully treated.

But the Maybrun framework is an uncomfortable fit for the facts of Bird. The question raised by Mr Bird’s collateral challenge is, really, one where legislative intent is absent. Can an individual choose to breach an order and challenge its lawfulness subsequently, rather than seek judicial review? The statutory framework was entirely silent on this point.

The most that could be said is, as Moldaver J correctly pointed out, that the purposes of the statutory scheme would be undermined by permitting collateral challenges:

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 (at para. 38).

The point here, however, is not that there was a meaningful “legislative intent” as to the question the Court posed (whether Bird could collaterally challenge the allegedly unlawful order) but rather that the purpose of the statutory scheme would be undermined by permtting collateral challenges.

Distinguishing between “legislative intent” and the purpose of the statutory scheme might seem like counting angels on the head of a pin (how unusual that would be for Canadian administrative law!). There is, however, an important point here. Cases like Bird are difficult precisely because they require judges to engage in a balancing act: on the one hand, the purposes of the statutory scheme must be upheld; on the other hand, fundamental liberty interests are at stake. There is, as Martin J put it, a “tension between an accused person’s right to challenge an administrative order alleged to be invalid, and the legislature’s choice to have certain matters assessed by administrative bodies, and not by courts” (at para. 104). Recognising and striking a balance between these competing considerations openly and transparently would make for more clear-headed analysis.

As it happens, both Moldaver and Martin JJ did grapple with the liberty interests at stake, at some length, but by shoehorning them into the Maybrun framework, part of which involves considering the existence of a right of appeal. But of course there was no right of appeal provided for by statute, giving the discussion of this point a rather surreal air. The central point, rather, was that the available “review mechanisms or forums must permit the person to assert his or her rights and challenge the administrative order effectively” (at para. 47). Dressing this point up in the garb of legislative intent is, it seems to me, unhelpful.

Curiously enough, to my mind, both Moldaver (at paras. 56-60) and Martin JJ (at para. 127) took the view that judicial review in the Federal Court would not be an adequate remedy. Given that a six-month residency condition had been imposed on Mr Bird, they concluded that proceedings in Federal Court would not be swift enough to vindicate the liberty interests at stake.

No empirical evidence was cited about the speed of proceedings in Federal Court, however. Here, Mr Bird had been notified of the order several months before its imposition. Accordingly, it seems most unlikely to me that he could not have initiated judicial review proceedings and received a decision before or shortly after the condition took effect — unless, that is, the Federal Court has an unannounced ‘go-slow’ policy in Parole Board cases. This is, after all, a Court that regularly deals with eleventh-hour immigration judicial reviews. It is implausible to suggest that Mr Bird’s putative application for judicial review could not have been addressed with the necessary alacrity (including the provision of interim relief, as necessary). Despite these qualms, I nonetheless accept the point that Mr Bird (and similarly situated individuals) might be successful in a judicial review application but still (the clock on their residency condition having run down in the meantime) gain nothing of substance.

Martin J went even further, raising “important access to justice concerns” (at para. 129), because it was “questionable that someone in Mr. Bird’s circumstances would have the resources to secure counsel or the capacity to be self-represented for the purpose of navigating the judicial review process” (at para. 128). For Martin J, the provision of an appeal would have obviated these concerns, whereas the absence of an appeal underscored the conclusion that the legislature did not intend to exclude collateral attack. As Martin J expressed this conclusion in terms of legislative intent her point is somewhat obfuscated, but inasmuch as she might be taken to be suggesting that less well-resourced litigants should be treated differently from better-resourced litigants, her reasoning should surely be rejected on the basis that it undermines the principle of equality before the law.

Ultimately, Moldaver and Martin JJ differed on the key substantive point: whether effective remedies were available to Mr Bird to vindicate his Charter rights without launching a collateral attack on the order. For Moldaver J, writing to the Parole Board to request a modification of the condition would have been sufficient, as it would have been “open to the Parole Board to grant an appropriate remedy to Mr. Bird by varying or removing the residency condition” (at para. 55). Martin J disagreed (at paras. 120-123).

They also disagreed on whether habeas corpus in a provincial superior court would have been an adequate remedy. Moldaver J found it “difficult to conceive of a remedy better suited to Mr. Bird’s circumstances than habeas corpus, designed as it is to provide swift and easily accessible relief to persons challenging a deprivation of their liberty” (at para. 67, though quaere whether Mr Bird could have applied for habeas corpus in advance of the deprivation of liberty, whereas he could have applied to the Federal Court for relief well in advance). Martin J disagreed again.

Once more, the disagreement was dressed up in terms of legislative intent. For example, displaying an otherworldly ability to divine the intentions of members of Parliament, Moldaver J stated forthrightly that it is “axiomatic that Parliament would have intended that those alternatives [such as habeas corpus] be used, rather than permitting a collateral attack in criminal proceedings” (see also Martin J at para. 134).

And once more, the focus on legislative intent is an unnecessary distraction from the core issue: whether Mr Bird’s liberty interests would be adequately vindicated absent the possibility of collateral attack. On the substance (with the exception of the discussion of judicial review in Federal Court), rather than on the form, I found Moldaver J’s analysis convincing. I would only add that collateral challenge is a much more plausible route when an individual seeks to put in issue a generalised rule or regulation rather than an individualised decision, because there is little reason to impose on an individual the burden of challenging a rule or regulation that applies to the world at large (see Boddington).

Second, however, this litigation seems barely to have scratched the surface of some fundamental underlying problems.

Consider, to begin with, the issue here. Stripped to its essentials, the problem is that Mr Bird would have his liberty restricted for such a relatively short period of time that it became extremely difficult for him to challenge the lawfulness of his detention. Put another way, the error costs in this system are borne mostly by the offender: they bear the cost of an unlawful detention and of the means of challenging it. Would it not be much more sensible to provide for damages as a remedy consequent on a finding of unlawful deprivation of liberty in such circumstances? Of course, the dogmatic refusal (with some exceptions) to countenance damages as a remedy in judicial review proceedings rules out such a solution.

Given this, consider the nature of Mr Bird’s case. Is this really a case about the permissibility of collateral challenge? Or is it really a case about the Charter compliance (or non-compliance) of the whole system of imposing and reviewing long-term supervision orders? Beneath the Maybrun framework and the mysteries of legislative intent, it seems to me that it must be the latter. Of course, I can understand why Mr Bird presented the case in this way: with his liberty interests on the line (as he faced criminal prosecution), a successful Charter challenge might have represented a hollow victory, not least because, on the current state of the law, it is highly unlikely that he would have been able to satisfy the high threshold for an award of Charter damages (not to mention that the availability of Charter damages against administrative tribunals is extremely uncertain).

Just as the insistence on the primacy of “legislative intent” obscured the important balancing exercise between the integrity of the statutory scheme and Mr Bird’s individual liberty interests, the fact that this case was couched as a collateral challenge served to deflect attention from underlying systemic issues relating to the remedies available in public law litigation.

This content has been updated on February 12, 2019 at 18:02.