0 S.C.C. FILE NO. 37596 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE SASKATCHEWAN COURT OF APPEAL) SPENCER DEAN BIRD Appellant (Respondent) And HER MAJESTY THE QUEEN Respondent (Appellant) FACTUM OF THE APPELLANT SPENCER DEAN BIRD (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) Leif Jensen Aileen Furey Community Legal Assistance for Matthew Day Saskatoon Inner City Inc. Shore Davis Johnson 123 20th St. West 200 Elgin St, Suite 800 Saskatoon, SK, S7M 0W7 Ottawa, ON K2P 1L5 P: (306) 657-6106 F: (306) 384-0520 P: (613) 204-9222 Email: [email protected] F: (613) 223-2374 Email: [email protected] Michelle Biddulph Email: [email protected] Greenspan Humphrey Weinstein Agent for the Appellant 15 Bedford Road Spencer Dean Bird Toronto, ON, M5R 2J7 P: (416) 868-1755 F: (416)868-1990 Email: [email protected] Counsel for the Appellant Spencer Dean Bird 1 Theodore Litowski D. Lynne Watt Ministry of Justice (Saskatchewan) Gowling WLG (Canada) LLP Constitutional Law Branch 160 Elgin Street, Suite 2600 820 – 1874 Scarth St, Ottawa, Ontario K1P 1C3 Regina, SK S4P 4B3 P: (613) 786-8695 P: (306) 787-5603 F: (613) 788-3509 F: (306) 787-9111 Email: [email protected] Email: [email protected] Ottawa Agent for the Respondent Public Prosecutions Attorney General of Saskatchewan 300 – 1874 Scarth St, Regina, SK, S4P 4B3 P: (306) 787-5490 F: (306) 787-8878 Counsel for the Respondent Attorney General of Saskatchewan Sharlene Telles-Langdon Robert Frater, Q.C. Attorney General of Canada Attorney General of Canada Prairie Regional Office 50 O’Connor Street 301-310 Broadway Avenue Ottawa, Ontario K1A 0H8 Winnipeg, Manitoba R3C 0S6 T: (613) 670-6290 Telephone: (204) 983-0862 F: (613) 954-1920 FAX: (204) 984-8495 Email: [email protected] E-mail:Sharlene.Telles- [email protected] Ottawa Agent for the Intervener Attorney General of Canada Counsel for the Intervener Attorney General of Canada Howard Leibovich Robert E. Houston, Q.C. Attorney General of Ontario Burke-Robertson LLP 720 Bay Street - 10th Floor 441 MacLaren Street, Suite 200 Toronto, Ontario M7A 2S9 Ottawa, Ontario K2P 2H3 P: (416) 326-2002 P: (613) 236-9665 F: (416) 326-4656 F: (613) 235-4430 E-mail: [email protected] Email: [email protected] Counsel for the Intervener Attorney Ottawa Agent for the Intervener General of Ontario Attorney General of Ontario 2 0 TABLE OF CONTENTS PART I OPENING STATEMENT AND STATEMENT OF FACTS ...................................... 1 PART II ISSUES ON APPEAL .................................................................................................. 2 PART III ARGUMENT ............................................................................................................ 2 A. Jurisdiction ....................................................................................................................... 2 B. The Doctrine of Collateral Attack .................................................................................... 3 C. Application to this Case ................................................................................................... 5 i. The Wording of the Statute and the Purpose of the Legislation ...................................... 5 ii. The Existence of a Right of Appeal .............................................................................. 9 iii. The Expertise of the Administrative Tribunal ............................................................ 10 iv. The Penalty upon Conviction ..................................................................................... 10 v. The Constitutional Context ......................................................................................... 13 vi. Conclusion on Collateral Attack................................................................................. 16 D. The Impugned Condition Infringes the Charter ............................................................ 17 i. Parliament did not Grant to the Parole Board the Power to Order the Impugned Condition............................................................................................................................... 18 ii. The Appellant’s Right to Liberty was violated in a Manner Inconsistent with the Principles of Fundamental Justice ........................................................................................ 29 iii. Double Punishment..................................................................................................... 34 iv. Remedy ....................................................................................................................... 39 PART IV Submission on Costs ............................................................................................... 40 PART V Order Sought............................................................................................................... 40 PART VI ....................................................................................................................................... 41 1 PART I OPENING STATEMENT AND STATEMENT OF FACTS Opening Statement 1. This case is about the rights of individuals charged with a serious criminal offence to have an opportunity to make a full answer and defence. It is about ensuring that individuals who are told to abide by an unconstitutional order do not suffer serious penal consequences if they fail to abide by it. This case is also about ensuring that sentences of imprisonment end when the sentencing court determines that the imprisonment should end, and ensuring that such sentences are not lengthened by administrative bodies without legislative authority under the guise of “community supervision”. 2. There are two main issues in this appeal. The first is about the proper application of the doctrine of collateral attack where imprisonment is likely to result from a conviction for breach of an administrative order. The second issue deals with the Parole Board of Canada’s ability to make an order that requires an individual to reside in a penitentiary as a condition of that offender’s long- term supervision order (“LTSO”), effectively continuing to imprison that individual after that individual’s warrant expiry date has passed. 3. The facts of this case have never been in dispute. The Appellant, Mr. Bird, was found to be a Long Term Offender (“LTO”) on May 27, 2005, and was sentenced to 54 months imprisonment, and five (5) years of Long Term Supervision.1 Mr. Bird was subject to a Long Term Supervision Order (“LTSO”) at all times relevant to this appeal, meaning that at all times relevant to this appeal, Mr. Bird’s 54 month period of imprisonment had been completed. He was subject to a condition, imposed under section 134.1(2) of the Corrections and Conditional Release Act (“CCRA”), which required that Mr. Bird: 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.2 1 R. v. Bird, 2016 SKPC 28 [Trial Judgment], Appellant’s Record, Tab 1 at para. 2. 2 Agreed Statement of Facts at para. 4, Appellant’s Record, Tab 5. 2 4. Mr. Bird was required to live at the Oskana Centre, a Community Correctional Centre (“CCC”).3 This is a federal penal institution, and is a penitentiary as defined by the CCRA. The Oskana Centre had standard policies designed for individuals on day parole, temporary absence, and statutory release. As a resident of the Oskana Centre, Mr. Bird was required to follow these policies. 5. On January 28, 2015, Mr. Bird did not follow the curfew that the Oskana Centre required. This resulted in his arrest and the charges of breaching section 753.3(1) of the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”) which are now before this Court. 6. Mr. Bird has consistently argued that the Parole Board of Canada does not have the jurisdiction to extend the imprisonment of an individual who is subject to an LTSO once the sentence of imprisonment has expired. PART II ISSUES ON APPEAL 7. It is respectfully submitted that there are two broad issues in this appeal: a. What is the proper application of the doctrine of collateral attack in these circumstances? b. Was the Parole Board of Canada entitled to order that Mr. Bird reside at a penitentiary? PART III ARGUMENT A. Jurisdiction 8. Mr. Bird was acquitted by the Saskatchewan Provincial Court of an indictable offence, and this acquittal was set aside by the Saskatchewan Court of Appeal. The Saskatchewan Court of Appeal entered a conviction. It is respectfully submitted that, pursuant to section 691(2)(b) of the Criminal Code, this Court has jurisdiction to hear this appeal and consider questions of law arising out of this matter. As these are questions of law, the standard of review is correctness. 3 Agreed Statement of Facts at para. 5, Appellant’s Record, Tab 5. 3 B. The Doctrine of Collateral Attack 9. A collateral attack is an “attack [on an order] made in proceedings other than those whose specified object is the reversal, variation or nullification of the order or judgment”: R. v. Wilson, [1983] 2 S.C.R. 594 at 559. While a collateral attack is presumptively prohibited, courts have long recognized that, in some situations, it may be necessary to allow an order to be attacked in a venue other than one whose specific object is the reversal, variation, or nullification of a particular order. The doctrine of collateral attack recognizes that in some cases, an order of a