



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hussein, 2019 ONCA 230

DATE: 20190322

DOCKET: C65954

Roberts, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ali Abdul Hussein

Appellant

Ian Carter, for the appellant

Katie Doherty, for the respondent

Heard: March 18, 2019

On appeal from the conviction entered by Justice
    Jacqueline Loignon of the Ontario Court of Justice on May 2, 2018.

REASONS FOR DECISION

[1]

Mr. Ali Abdul-Hussein was a material witness to a killing. After being subpoenaed
    to testify at the murder trial as a Crown witness, he fled Canada in a
    deliberate attempt to avoid giving evidence. Although Mr. Abdul-Hussein was
    unaware of it when he fled, the subpoena was issued improperly: the Registrar of
    the Superior Court of Justice who issued the subpoena failed to make any
    inquiries of the requesting police officers into whether Mr. Abdul-Hussein
    would have material evidence to give.

[2]

After the murder trial was over, Mr. Abdul-Hussein was apprehended in
    England and returned to Canada. He was charged with obstructing justice by
    failing to appear as a witness for a [m]urder [t]rial, contrary to
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 139(2). At his trial, Mr. Abdul-Hussein admitted
    his conduct and conceded that he had the
mens rea
for the offence, but
    argued that the
actus reus
of the offence had not been proved since
    the subpoena was not issued legally.

[3]

The trial judge convicted Mr. Abdul-Hussein. She held that
    notwithstanding the non-compliance by the Registrar with the mandatory

requirements
    for issuing a subpoena, the subpoena had to be obeyed unless set aside. Mr.
    Abdul-Hussein never applied to quash the subpoena. Given that he was a material
    witness in the murder trial, Mr. Abdul-Husseins disobedience of that subpoena
    had a tendency to obstruct justice.

[4]

In coming to this conclusion, the trial judge reasoned by analogy from
    authority holding that a search warrant that is regular on its face from the
    standpoint of form and jurisdiction must be obeyed even if issued without
    sufficient grounds, unless it has been set aside:
R. v. Pastro
(1988),
    66 Sask. R. 241 (C.A.). This trial judge noted that this rule encourages the
    orderly conduct of trials, which would be disturbed if individuals could choose
    to disobey subpoenas instead of challenging their validity. She found that this
    approach is also consistent with the statutory direction in
Criminal Code
,
    s. 700(2), to persons served with subpoenas to attend and remain in attendance
    throughout the proceedings unless excused by the presiding judge.

[5]

Mr. Abdul-Hussein now appeals his obstruction of justice conviction. He
    argues that the trial judge was effectively relying on the prohibition against
    collateral attacks on judicial orders, which does not apply in this case
    because the validity of the subpoena is an element of the offence.
    Specifically, he urges that a failure to comply with an invalid subpoena does
    not have a tendency to obstruct the course of justice.

[6]

Alternatively, he urges that even if his attempt to rely on the
    improper subpoena is a collateral attack, his attack should be allowed as an
    exception to the general bar on collateral attacks, because the Registrar
    issued the subpoena without performing the required judicial function and the
    exception would be narrowly confined to obstruction of justice charges.

[7]

We do not agree with Mr. Abdul-Hussein. Mr. Abdul-Husseins wilful act
    of evading a subpoena and failing to appear as a witness at a murder trial
    where he had material evidence to give had a tendency to obstruct the course of
    justice:
R. v. Houle
, 2016 MBCA 121 at para. 6. The
actus reus
of
    the offence is made out without the inquiry into the validity of the subpoena.

[8]

Such inquiry would violate the general rule that collateral attacks 
    being attacks on an order made in proceedings other than those whose specific
    object is the reversal, variation or nullification of the order  are
    impermissible:
R. v. Bird,
2019 SCC 7, at para. 21. As Moldaver J.
    observed in
Bird
, at para. 22,

[T]he rule against collateral attacks on court orders has been
    consistently applied in criminal proceedings where the charge involves an
    alleged breach of a court order. The citizens safeguard is in seeking to have
    illegal orders set aside through the legal process, not in disobeying them.

As Moldaver J. explained at para. 24, it violates the
    rule of law and the repute of the administration of justice to permit those
    presented with court orders to disobey them rather than to bring a challenge to
    their validity.

[9]

The decisions relied upon by Mr. Abdul-Hussein,
R. v. Oliveira
,
    2009 ONCA 219, 243 C.C.C. (3d) 217, and
R. v. Molina
, 2008 ONCA 212, 231
    C.C.C. (3d) 193, do not assist him. He asserts that those cases stand for the
    proposition that when the validity of a court order is an element of the
    offence, the collateral challenge bar does not apply. That is incorrect.
    Instead, those cases hold that it is not a collateral attack to defend against
    a charge of failing to comply with an order by relying on the failure of
    authorities to comply with statutory procedural protections associated with the
    order.
Oliveira
involved non-compliance with the requirement in
Criminal
    Code
,

s. 505, that after issuing a promise to appear, authorities
    must lay the related information as soon as practicable.
Molina
involved non-compliance with the requirement in
Criminal Code
, s.
    260(1)(c),

that an offender subject to a driving prohibition must be notified
    of the offence of failing to comply with that prohibition. Neither case
    involved challenges to the validity of the underlying orders themselves.

[10]

Nor,
    in our view, is this a case where an exception to the general rule should be
    recognized. If Mr. Abdul-Hussein had concerns about the validity of the
    subpoena, he had an effective means to challenge the court order by applying to
    quash the subpoena.

[11]

Indeed,
    as the Crown pointed out, it is not contested that Mr. Abdul-Hussein had
    material evidence to give. Had he successfully challenged the subpoena before
    trial in this case, a new subpoena would have issued. In our view, it would
    turn the rationale for the rule against collateral attacks on its head to
    recognize an exception that would leave those who disobey orders in a better
    position than those who bring proper challenges.

[12]

The
    appeal is dismissed.

L.B. Roberts J.A.
G.T. Trotter J.A.
David M. Paciocco J.A.


