Des questions quant à la validité de l'émission d'un subpoena ne permettent pas au justiciable de se soustraire de la justice de son propre chef

R. v. Hussein, 2019 ONCA 230

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[7]         We do not agree with Mr. Abdul-Hussein. Mr. Abdul-Hussein’s 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.