R v Hussein – 2019 ONCA 230 (Per Curiam):

[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.

[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.
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[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.