Rule Against Collateral Attacks on Court Orders

From Criminal Law Notebook

General Principles

See also: Probation Orders

All orders made by courts with lawful jurisdiction must be obeyed unless they are set aside by proper application.[1] Challenge to that order outside of a hearing to set aside the order is known as a "collateral attack" upon the order. It generally prohibited.[2] The purpose of the rule is to "ensur[e] court orders are considered final and conclusive" and must be obeyed unless set aside by "an established judicial procedure".[3]

The rule does not apply to the findings of fact underlying the order.[4]

The rule against collateral attack has been recognized as arising from the doctrine of abuse of process whereby violations of the rule are a form of abuse.[5]

Even where an order allegedly violates a constitutional right, the rule against collateral attack can still apply.[6]

The rule applies to many types of orders including:

  • peace bonds[7]
  • provincial administrative orders[8]
  • undertakings[9]
  • probation orders[10]
  • search warrants[11]

It however has been found not to apply in circumstances such as:

  • a pre-trial severance order[12]
Probation Orders

An established procedure to attack a probation order would include making application under s. 732.2(3) to amend the order.[13]

  1. R v Curragh Inc, 1997 CanLII 381 (SCC), [1997] 1 SCR 537, 144 DLR (4th) 614, per Forest and Cory JJ, at para 8 (“[E]very order of a trial court is enforceable and must be obeyed until it is declared void by an appellate court.” )
  2. R v Wilson, 1983 CanLII 35 (SCC), [1983] 2 SCR 594, per McIntyre J at 599 ("It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally—and 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.")
    Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 (CanLII), [2001] 2 SCR 460, per Binnie J, at para 20 ("a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it")
    Garland v Consumers’ Gas Co., 2004 SCC 25 (CanLII), [2004] 1 SCR 629, per Iacobucci J, at para 71 ("The doctrine of collateral attack prevents a party from undermining previous orders issued by a court or administrative tribunal. Generally, it is invoked where the party is attempting to challenge the validity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedings when that party has not used the direct attack procedures that were open to it (i.e., appeal or judicial review)")
    Canada (Attorney General) v TeleZone Inc, 2010 SCC 62 (CanLII), [2010] 3 SCR 585, per Binnie J, at para 60
    R v Love, 2011 ONCJ 134 (CanLII), per Wright J, at para 10
    R v Consolidated Maybrun Mines Ltd, 1998 CanLII 820 (SCC), [1998] 1 SCR 706, per L’Heureux-Dubé J - re collateral attacks on administrative orders
    See R v Litchfield, 1993 CanLII 44 (SCC), [1993] 4 SCR 333, per Iacobucci J
    R v S(J), 2007 CanLII 44356 (ONSC), [2007] OJ No 4049 (ONSC), per Hill J
    R v Domm, 1996 CanLII 1331 (ON CA), 111 CCC (3d) 449, per Doherty JA
    R v Wilson, 1983 CanLII 35 (SCC), [1983] 2 SCR 594 at 604, per McIntyre J
    R v Pastro, 1988 CanLII 214 (SK CA), 42 CCC (3d) 485, per Bayda CJ, at pp. 498-9
  3. Love, supra, at para 10
  4. Toronto (City) v CUPE, Local 79, 2003 SCC 63 (CanLII), [2003] 3 SCR 77, per Arbour J, at para 34
  5. Toronto (City), ibid., at paras 22 and 34
  6. Domm, supra
  7. R v Pheiffer, 1999 BCCA 558 (CanLII), 139 CCC (3d) 552, per Ryan JA
  8. Consolidated Maybrun, supra
  9. SJ, supra
  10. Love, supra
  11. Pastro, supra
  12. Litchfield, supra
  13. Love, supra, at para 14

See Also