Court of Appeal for Ontario

Date: 2017-06-23

Docket: C63259 & C63260

Panel: Tulloch, Lauwers and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Angelina Marie Codina Appellant

Counsel

Angelina Marie Codina, in person

Jason A. Morische, for the respondent

Heard

June 6, 2017

Appeal

On appeal from the judgments of Justice Michael Code of the Superior Court of Justice, both dated November 24, 2016, dismissing the appellant's applications, with reasons reported at 2016 ONSC 7305 and 2016 ONSC 7335, respectively.

By the Court

A. Background

(1) Introduction

[1] The appellant, Angelina Codina, is presently charged with six counts under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA") pursuant to a direct indictment preferred under s. 577 of the Criminal Code, R.S.C. 1985, c. C-46, dated December 8, 2016, and filed with the Superior Court of Justice on December 19, 2016. Previously, Ms. Codina had been the subject of two preliminary inquiries, but on January 5, 2017, the Crown stayed these proceedings pursuant to s. 579 of the Criminal Code.

[2] The first set of charges was laid on May 8, 2014, at the initiation of an investigator for the Canada Border Services Agency ("CBSA"), alleging that Ms. Codina was providing advice to various individuals concerning immigration matters in return for payment of fees, and that she was neither a lawyer nor a member of the Immigration Consultants of Canada Regulatory Council during the relevant periods; during that time, Ms. Codina was a disbarred lawyer. These alleged actions would contravene s. 91 of the IRPA. On the same day, Ms. Codina was brought before a justice of the peace, who granted bail pursuant to s. 515(2) of the Criminal Code, with the CBSA as the agency assigned to execute the bail.

[3] The second set of charges was laid on September 18, 2015, alleging breach of recognizance (Criminal Code, s. 145) as well as fresh violations of s. 91 of the IRPA. Ms. Codina's bail was revoked pursuant to s. 524 of the Criminal Code and she was detained on December 8, 2015 on both sets of charges.

[4] Ms. Codina brought a bail review in the Superior Court, which Himel J. denied on May 20, 2016. She then brought a two-part habeas corpus application before Goodman J., who denied the application on July 6 and July 21, 2016. Clark J. denied a second bail review on October 19, 2016. Ms. Codina appealed Goodman J.'s decision to the Court of Appeal, and also brought several applications before Code J. of the Superior Court (the "applications judge"), described below. As explained below, Ms. Codina was granted bail.

[5] There is an eight day trial set to start in September 2017, with pre-trial motions set to convene on June 22 and 23, 2017.

(2) The Applications on Appeal

(a) Applications for Prerogative Relief

[6] In three applications with various dates, Ms. Codina asserted that the judge who presided at one of her preliminary inquiries (the "PI judge") had lost jurisdiction.

[7] In her first application, Ms. Codina contended that the PI judge had committed various jurisdictional errors in rulings made on August 17, 2016, during the "focus hearing" prior to the scheduled preliminary inquiry. The PI judge dismissed Ms. Codina's application to quash the Informations against her and the judge ruled that she had no discretion to hear the constitutional issues that Ms. Codina had raised. With respect to Ms. Codina's other issues, the PI judge held that, if the matter were to go to trial, the trial judge would have the power to address them.

[8] In her second application, Ms. Codina contended that the PI judge made jurisdictional errors in proceeding with the preliminary inquiry in the face of r. 43.03(5) of the Criminal Proceedings Rules and in the absence of an order pursuant to r. 43.03(6) of the Criminal Proceedings Rules.

[9] In her third application, Ms. Codina contended that the PI judge committed a jurisdictional error in having her arraigned on the second of three Informations before the court. Ms. Codina argued that this second Information charged different offences from those charged in the first Information and that s. 523 of the Criminal Code did not apply. The PI judge disagreed and arraigned Ms. Codina on the second Information.

(b) The Charter Application

[10] Ms. Codina also brought a constitutional challenge with respect to various provisions of the Criminal Code and the IRPA, seeking the following declarations: (i) that ss. 145(3) and 524(8) of the Criminal Code violate ss. 7 and 11(d) of the Charter because they include reverse onus clauses; (ii) that s. 523 of the Criminal Code, as applied in Ms. Codina's case, violates a number of Charter provisions, including s. 7, because of overbreadth, vagueness and arbitrariness; (iii) that the core provisions of Part 18 of the Criminal Code, which sets out the powers and jurisdiction of a judge presiding at a preliminary inquiry, violate a number of Charter provisions, including s. 7, because of overbreadth, vagueness and arbitrariness; and that ss. 91(1), 126 and 138(1) of the IRPA violate a number of Charter provisions, including s. 7, because of overbreadth, vagueness and arbitrariness.

(c) The Applications Judge's Decisions on the Applications

[11] In two sets of reasons, both released on November 24, 2016, the applications judge dismissed all of Ms. Codina's applications for prerogative relief as well as her Charter application.

(3) Subsequent Procedural History

[12] After the applications judge had dismissed the applications before him, a panel of this court heard Ms. Codina's appeal from the denial of her habeas corpus application. In a decision dated February 2, 2017, R. v. Codina, 2017 ONCA 93, this court set aside the lower court's decision for failure to provide adequate reasons and ordered a new habeas corpus hearing, to be adjourned pending the outcome of a new bail review hearing.

[13] After the new bail review hearing, in reasons dated February 28, 2017, the review judge granted bail on a recognizance of $1,000 with no deposit and no sureties, ordering Ms. Codina to live with her mother: R. v. Codina, 2017 ONSC 1384. The ground for allowing bail on review was that there was a serious risk that Ms. Codina's time in pre-trial custody would exceed her ultimate sentence if convicted (para. 26).

B. Issues on Appeal

[14] Ms. Codina raises the following grounds of appeal from the applications judge's judgments:

(i) Does s. 145(3) of the Criminal Code violate s. 11(d) of the Charter?

(ii) Do ss. 524(4) & (8) of the Criminal Code violate s. 11(d) of the Charter?

(iii) Does the jurisdictional scheme for preliminary inquiries in Part XVIII of the Criminal Code violate s. 7 of the Charter on the ground of vagueness?

(iv) Does s. 91 of the IRPA violate s. 7 of the Charter?

(v) Does s. 126 of the IRPA violate s. 7 of the Charter?

(vi) Does s. 138(1) of the IRPA violate s. 7 of the Charter?

C. Analysis

[15] For the following reasons, we dismiss this appeal.

[16] Ms. Codina's only plausible argument for relief from this panel is that the applications judge erred in holding that the PI judge did not make a jurisdictional error in declining to quash the Informations on the basis of Ms. Codina's argument that the CBSA officers lacked any statutory authority to arrest, charge and detain her. As this court noted in its February 2, 2017 decision on Ms. Codina's habeas corpus appeal, the substance of this ground of appeal is similar to the argument underlying Ms. Codina's habeas corpus application: R. v. Codina, 2017 ONCA 93, at para. 23.

[17] In support of her grounds of appeal before this panel, Ms. Codina relies on the obiter dictum in 2017 ONCA 93 that we have just mentioned, suggesting substantial overlap between the substance of her habeas corpus application and her applications before the applications judge. This court also suggested at para. 24 of its February 2, 2017 decision that this case might be one in which the dictum in R. v. Johnson (1991), 3 O.R. (3d) 49 (Ont. C.A.), at p. 54, should have applied to allow for Charter remedies or prerogative relief during ongoing criminal proceedings.

[18] Ms. Codina relies on a passage in Johnson, at p. 54, where Doherty J.A. noted limits on the rule against granting Charter remedies or prerogative relief before the completion of a criminal trial:

I stress, however, that this limitation on resort to Charter or extraordinary remedy relief during criminal proceedings has been judicially imposed and cannot be taken as the equivalent of an absolute privative clause barring all such applications. Where the circumstances are such that the interests of justice require immediate intervention by the superior court, that jurisdiction can and will be exercised.

[19] We reject the argument for application of this dictum to Ms. Codina's case because, since she has been released on bail, the analysis in Johnson reverts to favouring a denial of any Charter or prerogative remedy while Ms. Codina's criminal proceeding remains ongoing. The panel that decided Ms. Codina's habeas corpus appeal did so on the basis that she still was in pre-trial custody; the panel relied on the dictum in Johnson to justify ordering a bail review before a new habeas corpus hearing.

[20] Instead, we believe that the immediately preceding paragraph on p. 54 of Johnson is apposite:

Those same cases identify the policy concerns which underline the predilection against resort to the superior court for relief during criminal proceedings. Such applications can result in delay, the fragmentation of the criminal process, the determination of issues based on an inadequate record, and the expenditure of judicial time and effort on issues which may not have arisen had the process been left to run its normal course. The effective and efficient operation of our criminal justice system is not served by interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process. A similar policy is evident in those cases which hold that interlocutory appeals are not available in criminal matters.

[21] The factual record for this hearing is extremely poor. As the applications judge noted in his reasons on the applications, the factual record consists essentially of Ms. Codina's affidavit, plus some supporting documents like warrants, informations and bail documents. Since she has obtained bail, we perceive no requirement of justice to grant any of her applications for Charter or prerogative relief at this time. Furthermore, since the panel in 2017 ONCA 93 allowed Ms. Codina's appeal and ordered a new habeas corpus hearing pending the outcome of the bail review, she should be able to obtain elsewhere any remedy to which she has a right arising from these proceedings. Lastly, the Crown's decision to prefer a direct indictment pursuant to s. 577 of the Criminal Code and to stay the preliminary inquiries pursuant to s. 579 effectively renders this appeal moot.

D. Disposition

[22] For the reasons provided above, the appeal is dismissed.

Released: June 23, 2017

M. Tulloch J.A.

P. Lauwers J.A.

David Brown J.A.