Court File and Parties

Court File No.: Ottawa 16-M7883 Date: 2018-05-02 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ali Abdul Hussein

Before: Justice Jacqueline V. Loignon

Decision released on: May 2, 2018

Counsel:

• Mr. J. Cavanagh, counsel for the Crown
• Mr. M. Ertel, counsel for the defendant

Decision

LOIGNON J.:

[1] Charge and Admissions

[1] Mr. Hussein is charged that between the 19th day of September and 27th day of December 2016, he did wilfully attempt to obstruct, pervert or defeat the course of justice by failing to appear as a witness for a murder trial, contrary to section 139(2) of the Criminal Code of Canada. Date, jurisdiction, voluntariness of the accused's statement and identity were admitted. By the end of the Crown's case the mens rea was admitted thus the only remaining matter for this Court to determine is the actus reus of the offence.

Evidence

[2] The facts are uncontroversial, relatively straightforward and can be summarized as follows:

Mr. Hussein was an eyewitness to the killing of Mohamed Zalal on August 19th, 2006. Nawaf Al-Enzi was charged with first degree murder while Mr. Hussein, though also charged with first degree murder, ultimately pled to being an accessory after the fact. Mr. Hussein gave a statement to police in relation to his and others' involvement in the killing prior to his plea. He was subpoenaed at Mr. Al-Enzi's trial in 2010 but did not testify in accordance with the statement given to police. He refused to adopt his prior statement though a section 9(2) application was brought under the Canada Evidence Act. Ultimately Mr. Al-Enzi was convicted of first degree murder and Mr. Hussein charged with perjury. Mr. Hussein was sentenced to about three years in prison. Following an appeal by Mr. Al-Enzi, the Court of Appeal ordered a new trial. This was to take place beginning September 19th, 2016.

[3] Sgt. (ret) Mike Hudson was the investigating officer assigned to this matter. As the date for the re-trial approached, he believed it important to serve Mr. Hussein with his subpoena while he was still locatable. In December of 2015, he was aware that Mr. Hussein was at a halfway house in Montreal. He made arrangements for a subpoena to be drawn up and then served by a colleague, Cst. Mahad Hassan. The subpoena itself was issued December 10th, 2015 at the City of Ottawa by a Registrar of the Superior Court. Though present when it was issued, he, Sgt. Hudson, did not verify any of the information on the face of the subpoena.

[4] Cst. Hassan located and served Mr. Hussein personally with the subpoena in Montréal. According to Cst. Hassan, the accused acknowledged that he knew what the case was about and declined to take Sgt. Hudson's business card. Cst. Hassan offered to call Sgt. Hudson, but again the accused declined. When he served the subpoena, Cst. Hassan did not notice a number of clerical errors on the face of the subpoena, namely: that the accused Nawaf Al-Enzi's name was misspelled as Nawaf An-Enzi; that the offence committed was described as contrary to section 235(1) without reference to a statute; that the offence date was noted as the 19th of September 2016, instead of the 19th of August 2006.

[5] On July 13, 2016, Cst. Matthew Cox was involved with the execution of a search warrant where Mr. Hussein was living. At the time, he spoke with Mr. Hussein mentioning the upcoming court date in the Al-Enzi matter. Cst. Cox asked if he would appear for court and the accused said yes. Cst. Cox advised Sgt. Hudson of this conversation. Following the accused's non-attendance during the homicide prosecution, this officer re-attended the residence and spoke with the accused's girlfriend to attempt to ascertain his whereabouts.

[6] On August 10th or 11th, 2016, Sgt. Hudson was made aware that Mr. Hussein had left the country. Video footage was sent to him from the Ottawa and Toronto Airports showing the accused and his girlfriend going through security on August 6th. The flights associated with Mr. Hussein were Ottawa, Toronto, and Hong Kong. Various stamps in Mr. Hussein's passport show him having been in Thailand between August 7th and September 5th 2016, and then September 7th to October 3rd, followed by China from October 3rd to November 10th 2016, followed by Lebanon from November 11th to December 25th 2016. He entered the United Kingdom on December 25th where he became stranded, his passport having been cancelled. Mr. Hussein was ultimately returned to Ottawa where he was immediately arrested upon disembarking the plane.

[7] Once Sgt. Hudson was made aware that Mr. Hussein had left Canada in early August 2016, he contacted his family to have them persuade him to return, highlighting his jeopardy if he did not. On September 19th, 2016, Mr. Hussein did not appear in response to his subpoena. A witness warrant was issued by Justice Warkentin on September 19th, 2016.

[8] In terms of efforts to locate Mr. Hussein, Sgt. Hudson contacted RCMP, Interpol and other agencies having jurisdiction in the countries where Mr. Hussein was believed to be located. Most countries visited by Mr. Hussein were not countries with whom Canada has a Mutual Legal Assistance Treaty and therefore he was not subject to extradition, even if located. Sgt. Hudson also made arrangements with Det. Benson of the OPS to attempt contact with Mr. Hussein through a fictitious Facebook persona. Mr. Hussein was indeed located and responded, all the while making it clear that he knew that it was the OPS speaking to him and that he was not going to return to Canada for Mr. Al-Enzi's trial.

[9] It is accepted that Mr. Hussein had safety concerns were he to testify against Mr. Al-Enzi. Though witness protection was offered throughout 2010 and 2016, Mr. Hussein never accepted this option.

[10] The Registrar who issued the subpoena, Mr. Ignacio Santander-Alfonso, testified that when he received the subpoena, he verified the date of issue as well as the date for trial and signed the subpoena. He was not provided with any other information such as a summary of anticipated evidence or "will state", nor did he make any inquiry, not having been trained to do so. Indeed, his training required him to assume that the information, including the person being subpoenaed, was correct. He could not specifically recall having signed this subpoena, nor could he say how many he had signed that day.

[11] Up until these proceedings, no one challenged the subpoena issued such as seeking that it be quashed, nor did anyone challenge the issuance of the warrant to arrest on the first day of trial by Justice Warkentin. It bears noting that no one appeared for Mr. Hussein on the date the warrant was issued making contesting it impossible. Finally, with respect to materiality, no one disputes that the accused had material evidence to give at the Al-Enzi trial.

Issues

[12] As noted above, the only remaining issue is the actus reus of the offence. In order to determine whether the Crown has proven this element beyond a reasonable doubt, the parties agree that the following must be decided:

1. Was the subpoena issued to Mr. Hussein valid?
2. In the event that the subpoena was not valid, can the accused be found guilty in the absence of a legal obligation to testify?

Issue 1 - Was the Subpoena Issued December 10th, 2015 and Served on Mr. Hussein Valid?

[13] Defence argues that the subpoena is invalid for reason of clerical errors, but beyond that, a lack of jurisdiction as a result of the Registrar making no inquiry as to the materiality of the evidence to be given by the accused in the proceedings. This lack of jurisdiction, he argues, results in the subpoena being void ab initio. The Crown on the other hand argues the subpoena complies with the various authorizing sections of the Criminal Code and that the subpoena was valid until quashed, which never occurred.

[14] The relevant Criminal Code sections for this discussion are the following:

Section 698(1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.

Section 699(1) If a person is required to attend to give evidence before a superior court of criminal jurisdiction, a court of appeal, an appeal court or a court of criminal jurisdiction other than a provincial court judge acting under Part XIX, a subpoena directed to that person shall be issued out of the court before which the attendance of that person is required.

Section 699(2) If a person is required to attend to give evidence before a provincial court judge acting under Part XIX or a summary conviction court under Part XXVII or in proceedings over which a justice has jurisdiction, a subpoena directed to the person shall be issued

(a) by a provincial court judge or a justice, where the person whose attendance is required is within the province in which the proceedings were instituted; or

(b) by a provincial court judge or out of a superior court of criminal jurisdiction of the province in which the proceedings were instituted, where the person whose attendance is required is not within the province.

Section 699(4) A subpoena or warrant that is issued by a court under this Part shall be under the seal of the court and shall be signed by a judge of the court or by the clerk of the court.

Section 700(1) A subpoena shall require the person to whom it is directed to attend, at a time and place to be stated in the subpoena, to give evidence and, if required, to bring with him anything that he has in his possession or under his control relating to the subject-matter of the proceedings.

Section 700(2) A person who is served with a subpoena issued under this Part shall attend and shall remain in attendance throughout the proceedings unless he is excused by the presiding judge, justice or provincial court judge.

a) Clerical Errors

[15] There is no doubt that the subpoena issued to Mr. Hussein had several clerical errors. However, the information contained on the face of the subpoena as required by section 700(1) of the Code was correct in that: it was addressed to Mr. Hussein; it stated the correct start date and time of the trial and the location of attendance. As required by sub-sections 699(1) and (4), it was issued out of the Superior Court, under seal and signed by the Registrar of the Court. Indeed, there is no question that Mr. Santander-Alfonso held the position of Registrar with the Superior Court when he issued the subpoena.

[16] Also not in issue is that Mr. Hussein was fully aware that he was required to attend court, the purpose for his attendance as well as its subject matter. His Facebook messages demonstrate this. Though the name of the accused charged was misspelled and the date of offence was wrong, these did not confuse Mr. Hussein. The evidence from Cst. Cox as well as Cst. Ahmed demonstrates that he knew what his subpoena concerned. This of course makes perfect sense given his own circumstances during the first prosecution. Indeed, he was originally charged as part of the prosecution, then testified at the first trial and was charged with perjury as a result of that. In light of the foregoing and despite the irregularities, there was sufficient information for the accused to know what the subpoena required him to do, when and where to attend, and in relation to what. As all statutory conditions for its issuance were met, and given the absence of any confusion or misleading on the part of the accused, I am not of the view that the facial errors are fatal to the subpoena's validity.

b) Requirement to Inquire into the Materiality of the Evidence to be Given

[17] Defence submits that in the absence of an inquiry into materiality of the evidence to be provided by the proposed witness, the Registrar did not have jurisdiction to issue the subpoena. The Crown on the other hand argues that there was no obligation to inquire into materiality and that I should not import this obligation into section 699(1) of the Criminal Code.

Law

[18] The starting place for the inquiry into the obligation to inquire as to materiality is Foley v. Gares (1989), 53 C.C.C. (3d) 82, where the Saskatchewan Court of Appeal said at paras 15, 16:

Although it does not expressly so provide, s. 626 of the Code [now 699] implicitly provides that before issuing the subpoena a justice (as well as a Provincial Judge, a superior court judge or a clerk of the court, as the case may be) should satisfy himself or herself that the person required by the intended subpoena to attend the proceeding is "a person [who] is likely to give material evidence in [that] proceeding". …

What type of inquiry is a justice acting under ss. 626 and 627(2)(a) required to make? It is safe to say that the standard of inquiry is not so high, for example, as that expected of a judge acting under s. 627(3), but the justice nonetheless should make some examination of the circumstances.[…] If he takes no steps whatever to satisfy himself that the person is likely to give material evidence, the justice is abusing his power and his discretion if he issues the subpoena. His decision to issue the subpoena may be set aside by a superior court on the ground that without making any examination the justice had no jurisdiction to exercise his discretion to issue the subpoena. In short, his decision is amenable to certiorari.

[19] The jurisprudence since that time adopts the view that the issuer of a subpoena has an obligation to satisfy him or herself that there is an evidentiary basis supporting that the proposed witness will likely give material evidence at the trial. Where a subpoena is issued without such inquiry, it may be quashed. (See: R. v. Brandsma, 2015 ABQB 466 at paras 17–20; R. v. Harris (1994), 93 C.C.C. (3d) 478 (ONCA) at para 5; R. v. Wood, [2006] OJ No 841 (Sup. Ct.))

[20] The case law also emphasizes that the issuance of a subpoena is a judicial act, not an administrative one. (R. v. Wood, supra). It cannot be delegated and cannot be exercised perfunctorily. In other words, the person charged with issuing the subpoena cannot rely on the good faith of the party requesting the subpoena, nor can he or she speculate or simply accept the applicant's belief as to the materiality of the evidence to be given to issue the subpoena. (R. v. Brown, 1997 O.J. No. 6171 at para 13 (Gen. Div.); R. v. Dickie (1996), 110 C.C.C. (3d) 573 at para 8-9, 14-15 (Gen. Div.)) Indeed, as Justice Watt put it in R. v. Finkle, [2007] O.J. No. 3506 (Sup. Ct.) at para 60:

…[i]mposition of a threshold for issuance of a subpoena ensures that subpoenas are not issued for the asking. The erection of the threshold bespeaks a requirement of its satisfaction before the issuer may invoke the statutory discretion the subsection provides. It logically follows that, in some manner or other, the issuer must be satisfied that the proposed witness is likely to give material evidence in the proceedings in which his or her attendance is sought.

[21] It bears noting that the case law where subpoenas have been set aside on the basis of a failure to inquire into materiality include both those issued by a justice as well as those issued by a Registrar. In that regard alone, those decisions are binding upon me and I see no reason to depart from the principles enunciated.

[22] In addition, when looking at s.698 of the Code, which requires the inquiry into materiality, it applies to all proceedings under the Code, not just those within the jurisdiction of the Provincial Court. It is this section which goes beyond form and is substantive in terms of the requirements. To interpret the sections otherwise would create a substantive dissonance when the obligations which flow from a subpoena are the same.

[23] In this case, the Registrar testified that he did not make any inquiry, that it is not typically his practice, nor is he trained to make any inquiry into whether the proposed witness likely has material evidence to give. Essentially, he relied on the good faith of the party seeking the subpoena that the proposed witness likely had material evidence. As a result of this, the Registrar failed to properly perform his duty and comply with the mandatory requirements in the Criminal Code.

[24] The failure to make the appropriate inquiry into materiality means that the subpoena could have been subject to review. That having been said, it bears mentioning that a review on the ground of materiality would never have been successful since it is uncontroverted that Mr. Hussein did indeed have material evidence to give. I also pause to note that the materiality of Mr. Hussein's evidence was, in essence, confirmed in this case when Justice Warkentin issued the material witness warrant, a pre-condition of which is the materiality of the evidence of the missing witness. All of this however does not displace the obligation to make the inquiry.

c) Is the Subpoena Void ab Initio or Voidable?

Law

[25] The language in the case law dealing with the materiality inquiry speaks of the decision to issue being subject to review. It does not speak in terms of the court process being void but rather voidable through certiorari. There is no case law specifically on this point. The case law that exists on search warrants, a judicial process issued ex parte under statutory powers similarly to a subpoena, is instructive however as it addresses these issues.

[26] In R. v. Pastro (1988), 66 Sask. R. 241 (C.A.), the Saskatchewan Court of Appeal considered a search warrant issued by a justice of the peace pursuant to the Narcotic Control Act. The Court found that the grounds to issue the warrant were insufficient and that the justice of the peace was wrong to issue it. One of the issues examined by the Court was whether this error nullified the criminal proceedings in the sense that the warrant was void from its inception. The Court of Appeal rejected the argument in the following terms:

[13] […] A close examination of the material reveals only a search warrant that is regular on its face, from the standpoint of form and jurisdiction, but one which was issued because the justice who authorized its issue was wrong in law or wrong in the exercise of his discretion. It reveals a search warrant that I, in my discretion, would not have issued had I been the justice before whom the information was presented; that I, as an appellate judge, would have no difficulty in setting aside had the justice's order been appealed to me; that I, as a superior court judge, exercising supervisory powers would have seriously entertained quashing on the ground that the justice had no jurisdiction. ... In short, the material reveals a search warrant that ... should now be set aside. It does not, however, reveal a search warrant that was a nullity, that is, one void from its inception (on the ground of fraud, deliberate deceptive conduct, or no jurisdiction in the sense that a justice had no general power to issue search warrants) and thus not valid at the time of the impugned search. [Emphasis in original.]

[27] The Court went on to cite various texts and cases on the different types of "errors in jurisdiction" including the follow passage from Volhoffer v. Volhoffer, [1925] 2 W.W.W. 304 at p. 308:

From these authorities, the law would appear to be that if a tribunal which has jurisdiction over a subject-matter, provided a given state of facts exists, makes an order in respect of that subject-matter in the absence of the existence of that state of facts, and, therefore, without jurisdiction, such order must be treated as valid and binding until it is reversed upon an appeal, and, generally speaking, it cannot be attacked in a collateral proceeding. But where the tribunal has not been given any jurisdiction over the subject-matter, no matter what state of facts may exist, an order made in respect of it is a nullity, and need not be appealed against, and its invalidity may be set up as an answer in any proceeding taken under it.

[28] Ultimately the court was of the view that an order made following an ex parte application to the appropriate judicial officer though based on insufficient, incomplete or incorrect information, was still valid, until set aside. (para 18)

[29] This same general principle was expressed by the Federal Court of Appeal in Canada (Canadian Human Rights Commission) v. Taylor, [1987] 3 F.C. 593 (CA):

[13] The duty of a person bound by an order of a court is to obey that order while it remains in force regardless of how flawed he may consider it or how flawed it may, in fact, be. Public order demands that it be negated by due process of the law, not by disobedience.

[30] In this case the subpoena was properly issued in that it was under seal of the Court, signed by a Registrar with the authority to do so, as conferred by the Criminal Code. This is not a case where there was fraud, deliberate deceptive conduct or no general power to issue the subpoena. In these circumstances, the subpoena was voidable, not void ab initio. I pause here to note that this approach is common sense in that it maintains the integrity of a process issued under the seal of the Court while at the same time allowing recourse for those who wish to challenge a subpoena that may have been improperly issued. It also ensures consistency with section 700(2) whereby a person subject to a subpoena must remain in attendance until excused by the Court. To hold otherwise would make this section meaningless. This pragmatism was noted in Pastro above where the judge opined that:

[16] If a person affected by a judicial order were entitled to assess for himself the validity of a judicial order or to surmise the result of a possible judicial adjudication of that validity and with impunity, govern his affairs accordingly, there would be an area of serious uncertainty in the law, and at times chaos. The need for a standard uniform rule, that, generally speaking, a judicial order (fraud, deliberate deceptive conduct and lack of jurisdiction aside) is valid until set aside, on appeal or otherwise, by another judicial order, is by and large self-evident.

[31] This chaos is just as applicable in the subpoena context. The orderly conduct of a trial would be impossible should the subject of a subpoena have the discretion to assess for him or herself the need to attend court. In would run contrary to the importance and seriousness of the duty to testify, underscored in Foley v. Gares above. Indeed, citing an extract from MacKeigan v. Hickman, 1989 SCJ 99, in turn citing Wigmore on Evidence, the Saskatchewan Court of Appeal in Foley observed at para 16 that:

The pettiness and personality of the individual trial disappears when we reflect that our duty to bear testimony runs not to the parties in that present cause, but to the community at large and forever.

[32] Though those comments were made in the context of the exemption from the duty to testify, they are equally applicable within this one. In sum, I am of the view that the subpoena issued by the Registrar was voidable and not void ab initio.

Issue 2 - In the Event that the Subpoena is Not Valid, Can the Accused be Found Guilty in the Absence of a Legal Obligation to Testify?

[33] The accused argues that the manner in which the Crown has particularized the offence, essentially that he obstructed justice by failing to appear, requires that the Crown demonstrate a legal obligation compelling the accused to attend, otherwise there can be no liability. Indeed, the argument is premised on the principle of criminal law that an offence of omission requires the existence of a legal duty. In this case, in the absence of a legal obligation, there remained simply a moral one to attend court.

[34] In this case, on the 16th of September 2016, the subpoena was valid as it had not been quashed. As a result, Mr. Hussein, having been duly served and being more than aware of the proceedings and his role in them, was subject not only to a moral obligation to attend court, but also a legal duty.

[35] The accused is found guilty.

Released: May 2, 2018

Signed: Justice Jacqueline V. Loignon