R. v. Pheiffer, 1999 BCCA 558 (CanLII)
[6] That rule was applied by this Court in R. v. Adams (1978), 45 C.C.C. (2d) 459 (B.C.C.A.). There an accused charged with escape from lawful custody tried to argue that the judge who made the detention order from which he escaped had no jurisdiction to do so. This Court held that such a defence could not be raised on the trial for escaping lawful custody. Later, in Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, 9 C.C.C. (3d) 97, Mr. Justice McIntyre speaking for the majority of the Court in that case said the following:
The cases cited above and the authorities referred to therein confirm the well-established and fundamentally important rule, relied on in the case at bar in the Manitoba Court of Appeal, that an order of a court which has not been set aside or varied on appeal may not be collaterally attacked and must receive full effect according to its terms.
The rationale of this decision was recently followed in R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, 86 C.C.C. (3d) 97, again in the Supreme Court of Canada, where the Court said:
The rationale behind the rule is powerful: the rule seeks to maintain the rule of law and to preserve the repute of the administration of justice. To allow parties to govern their affairs according to their perception of matters such as the jurisdiction of the court issuing the order would result in uncertainty. Further, "the orderly and functional administration of justice" requires that court orders be considered final and binding unless they are reversed on appeal (R. v. Pastro, supra, at p. 497).
[7] The rule was further explained in that case at pp. 109-110:
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": R. v. Wilson 1983 CanLII 35 (SCC), (1983), 9 C.C.C. (3d) 97 at p. 117, 4 D.L.R. (4th) 577, [1983] 2 S.C.R. 594, per McIntyre J. 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: see, e.g. British Columbia (Attorney-General) v. Mount Currie Indian Band 1991 CanLII 892 (BC SC), (1991), 47 C.P.C. (2d) 214 at p. 228, [1991] 4 W.W.R. 507, 54 B.C.L.R. (2d) 129 (B.C.S.C.), and R. v. Pastro 1988 CanLII 214 (SK CA), (1988), 42 C.C.C. (3d) 485 at pp. 498-9, 39 C.R.R. 108, 66 Sask. R. 241 (Sask. C.A.), per Bayda C.J.S. Such an order is binding and conclusive until set aside on appeal.
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