There is a litigation doctrine in the court system called the doctrine of collateral attack. While the doctrine may sound a little esoteric, it is often used by advocates and judges when a second lawsuit challenges a court order made in the first lawsuit. The doctrine was first applied in Canada in 1922 but rarely used by the courts – only 80 decisions in 60 years – until it came to prominence in 1983 when the Supreme Court of Canada applied it. Since that time, there have been over 1800 decisions addressing the doctrine of collateral attack.
Normally, court orders or administrative orders are attacked directly by appealing the order. Collateral attack cases involve a party, bound by an order in the first lawsuit, who seeks to avoid compliance with that order by challenging the order itself and its enforceability, not directly through an appeal of the order, but indirectly (collaterally) in a second lawsuit. The order being attacked usually involves an activity. A party is ordered either to do something or to refrain from doing something.
The doctrine is applied in administrative law when a second lawsuit involves the non-compliance with an administrative order made in the first lawsuit, for example, an order under environmental legislation to clean-up a gas station leak. The doctrine is also commonly considered in criminal law when the second proceeding involves the breach of a court order and the accused argues, as a defence, that the order is invalid. A collateral attack in criminal law often involves the breach of a pre-trial order, such as a probation order, which has not been appealed. As one criminal court judge has stated: “In Provincial Court, where the volume and speed of cases is often onerous for all concerned, and countless statutory orders such as, inter alia, weapons prohibitions, license prohibitions, and probation orders, undertakings, recognizances, all containing prohibitory terms, are daily made, it is imperative that such orders, once made with statutory jurisdiction, be treated as valid unless and until they are found on appeal to be invalid.” In other words, the fundamental policy behind the doctrine of collateral attack is to maintain the rule of law and to preserve the repute of the administration of justice. If a condition of a probation order is breached and the accused faces a separate criminal proceeding for breaching the condition, the accused cannot challenge the validity of the probation order in the breach proceeding. That would be a collateral attack. The only opportunity to challenge the probation order is to appeal it directly before the breach has occurred.