Offender’s stay at halfway house not a breach of rights: Supreme Court

Canada’s highest court has determined a required stay in a halfway house during community supervision does not run contrary to a long-term offender’s rights.

Spencer Dean Bird was declared a long-term offender and was handed a 54-month prison term to be followed by a five-year longterm supervision order (LTSO). As part of that order, he was to follow a range of strict conditions intended to keep tabs on him and help lessen his risk to reoffend violently. Among those terms was one requiring him to stay at a federal halfway house for 180 days.

Bird was directed by the parole board to stay at Regina’s Oskana Centre but in January 2015, less than a month into his LTSO, he failed to return, resulting in a breach.

His lawyer claimed his client was the one whose rights had been breached, arguing Bird’s stay at a halfway house was tantamount to added jail time. Leif Jensen argued the conditions of Bird’s LTSO directed he live supervised in the community — and that such a condition was not met by further time in what amounts to a correctional facility.

Bird won his argument at Regina provincial court, but the Saskatchewan Court of Appeal later overturned the trial judge’s acquittal on the breach charge.

Bird subsequently took his case to the Supreme Court of Canada.

The Supreme Court returned with a written decision this week, upholding the Court of Appeal’s findings.

The majority stated Bird was not “permitted to collaterally attack the residency condition of his LTSO.”

“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,” the decision by the majority read. “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.”

The court added such an approach would also effectively undermine the offender’s successful reintegration into the community.

The Supreme Court found the residency clause of an LTSO falls within the scope of the parole board, given the board takes into consideration an offender’s criminal history, risk factor and needs. Should Bird have wished to have the matter reviewed, he could have taken it up through the board, the majority found.

The minority — three of nine — found Bird did have the right to argue the residency requirement on constitutional grounds at the time of his trial. As such, they disagreed with the majority’s “breach first, challenge later” findings.

The minority determined it was open to Bird to challenge the residency requirement but nonetheless dismissed his appeal.

“If long-term offenders were not permitted to live anywhere deemed a ‘penitentiary’ under the statute, the Board’s capacity to tailor conditions to the specific needs of the long-term offender with an eye to public safety and rehabilitation would be severely limited,” the minority wrote.

When offenders breach these conditions, they expose the public to ... risk.