Collateral Attack

Mississauga (City) v. Ashley Developments Ltd., 2017 ONCJ 557 (CanLII)

[43] In R. v. Wilson, the Supreme Court of Canada stated that “a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment”.

[44] The respondent argued at trial it should not be found guilty of the charge under s.8 (1) because it was only the landlord and it did not cause or assist in bringing about the construction on its property, or even know that it was occurring; it was all the tenant’s doing. This argument succeeded at trial. Justice of the Peace Fisher-Grant acquitted the respondent of the charge under s. 8 (1).

[45] But as indicated above, the respondent went further and argued that since it could not be found guilty of the charge under s. 8 (1), Mr. Russell’s order to comply with that order did not apply to it. Consequently, it could not be found guilty of failing to comply with the order either.

[46] Pursuant to the definition in Wilson, I find that this is clearly a collateral attack on Mr. Russell’s order. I find support for this conclusion in the following jurisprudence.

[47] In Regina v. J.L.S.,[20] the issues before the British Columbia Court of Appeal were whether a Youth Court judge had the jurisdiction under the Young Offenders Act to bind a young person with a recognizance under s. 810 of the Criminal Code. And secondly, whether the rule against collateral attack prevented the young person from challenging the validity of the recognizance on jurisdictional grounds at his trial for a breach of the recognizance.

[48] The Court of Appeal found that “A Youth Court judge does not have jurisdiction under the Young Offenders Act to bind a young person with a recognizance under s. 810 of the Criminal Code”, and further that “The rule against collateral attack prevents a young person charged with a breach of a s. 810 recognizance from challenging, on the trial of the charge, the validity of the recognizance on jurisdictional grounds”. [21]

[49] In arriving at this conclusion, in paragraph 34 the court cited the Supreme Court of Canada’s decision in R. v. Litchfield[22]

This rule holds that "a court order, made by a court having jurisdiction to make it", may not be attacked "in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment" (Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, per McIntyre J., at p. 599). The lack of jurisdiction which would oust the rule against collateral attack would be a lack of capacity in the court to make the type of order in question, such as a provincial court without the power to issue injunctions. However, where a judge, sitting as a member of a court having the capacity to make the relevant type of order, erroneously exercises that jurisdiction, the rule against collateral attack applies. (Citations omitted) (Emphasis added)

[50] The court made the following pertinent observation for the case at bar:[23]

…the distinction between errors of law or fact on the one hand and errors of jurisdiction on the other is sometimes difficult to draw but, in the context of the rule against collateral attack, the distinction may be drawn by asking whether the judge who had the order under attack had the general power to make the type of order in question, even if he or she arguably should not have made the order in the particular circumstances of the case under consideration.

While a Youth Court judge cannot order a young person to enter into a recognizance under s. 810 of the Criminal Code, Youth Court judges do have the power to place young persons on recognizances. Clearly they do so in the context of bail applications and s. 49 of the Young Offenders Act makes explicit reference to "a recognizance binding a young person". In my view, the recognizance order made by Judge Lemiski falls into the category of an erroneous exercise of jurisdiction and, as such, would be immune from collateral attack. The proper forum in which to attack the order placing the young person on a recognizance was an appeal from the original order, not in proceedings commenced for breach of recognizance. (Emphasis added)