Court of Appeal for Ontario

Date: 2019-12-16 Docket: C65015

Panel: Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Angelina Codina Appellant

Counsel

For the Appellant: Alan D. Gold and Laura J. Metcalfe

For the Respondent: Kevin R. Wilson and Vanita Goela

Heard: December 10, 2019

On Appeal

On appeal from the sentence imposed by Justice Anne M. Molloy of the Superior Court of Justice, on May 29, 2018, with reasons reported at 2018 ONSC 2180.

Reasons for Decision

[1] Angelina Codina appeals the sentence of seven years (before credit for pre-sentence custody) imposed on her by the trial judge. She was convicted by a jury on four counts of providing advice to persons on immigration matters without being licensed to do so, contrary to s. 91(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), and one count of counselling a person to make a misrepresentation in an immigration application, contrary to s. 126 of the IRPA.[1]

[2] In accordance with the principles laid down in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11: "[E]xcept where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit."

[3] With respect to that test, the appellant advances five errors that she says the trial judge committed in determining the sentence. First, the appellant asserts that the trial judge erred in relying on delay in the proceedings, arising from various pre-trial steps that the appellant took, to deny her enhanced credit for pre-sentence custody. We do not agree. Delay caused by an accused person is a proper basis to deny enhanced credit for the time spent in pre-sentence custody or on stringent bail terms. It constitutes "wrongful conduct" (para. 48) or "bad conduct" (para. 71) which was identified, in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, as a basis for limiting enhanced credit for pre-sentence custody. The trial judge had available to her the many motions that the appellant had brought in advance of the trial, the vast majority of which were dismissed as being without merit. Further, the question of what credit to allow for pre-sentence custody was a matter entirely within the discretion of the trial judge.

[4] Second, the appellant contends that the trial judge relied on victim impact statements to improperly increase the sentence. Again, we do not agree. A trial judge is entitled to factor the impact of the offender's conduct on the victim into her determination of an appropriate sentence. That is one of the purposes behind receiving victim impact statements. It only becomes an error if the trial judge relies on a victim impact statement to impose an unfit sentence: R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758, at para. 72. That did not happen in this case.

[5] Third, the appellant says that the trial judge improperly relied on a portion of one sentence in the pre-sentence report as an aggravating factor. On this point, the trial judge was concerned, on her own, about the potential for the appellant to commit future offences and, in doing so, to cause harm to "a new victim pool". The trial judge noted that the author of the pre-sentence report had expressed the same concern. This was an entirely appropriate point for the trial judge to make, given the appellant's past conduct and expressed future plans. It was not driven by the contents of the pre-sentence report and there was no improper reliance on this reference from it.

[6] Fourth, the appellant complains both that the maximum sentence was imposed on the four counts of providing advice and that those counts were made consecutive as opposed to concurrent to each other. Given the criminal record of the appellant, including her convictions in the United States for essentially the same type of conduct, and the fact that the maximum sentence was only two years, we do not see any error in the trial judge concluding that a two-year sentence was appropriate. As the court said in R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 20, "[I]f the circumstances warrant imposing the maximum sentence, the judge must impose it".

[7] We also do not agree that the trial judge erred in imposing consecutive sentences on the four counts of providing advice. Each of those counts represented a separate act involving different individuals at different times over a four-year period. It was appropriate to impose consecutive sentences in those circumstances, subject to the totality principle, which the trial judge also applied. Indeed, a court is directed by the sentencing provisions of the Criminal Code to consider imposing consecutive sentences when sentencing a person for more than one offence that "do not arise out of the same event or series of events": R.S.C. 1985, c. C-46, s. 718.3(4)(b)(i).

[8] Fifth, the appellant says that the trial judge erred in failing to avert to, and give credit for, the period of time that she spent on bail pending her trial, in accordance with the principles set out in R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.). We cannot fault the trial judge for not mentioning this issue when trial counsel did not raise it in his sentencing submissions. Further, there was no evidence before the trial judge that the bail conditions prejudiced or imposed undue hardship on the appellant: Downes, at para. 37. Given that fact, and the failure of counsel to raise the issue, it cannot be said that the trial judge erred in principle in failing to address the terms of the appellant's pre-sentence release as a potential mitigating factor: R. v. Pomanti, 2017 ONCA 48, at para. 34. We would also observe that any credit that the trial judge might have given on this basis would have been more than compensated for by the sentence reduction that the trial judge granted based on the totality principle.

[9] Lastly, we note that the appellant did not press the ground that the trial judge relied on aggravating facts that were not raised by the parties during the sentencing hearing. Consequently, we do not need to address that issue.

[10] The trial judge gave detailed and careful reasons for imposing the sentences that she did. The appellant has failed to establish any error on the part of the trial judge, either in her analysis or in her conclusions. The appellant has also failed to establish that the sentences are demonstrably unfit.

[11] While leave to appeal sentence is granted, the appeal is dismissed.

"Alexandra Hoy A.C.J.O." "P. Lauwers J.A." "I.V.B. Nordheimer J.A."

[1] A separate conviction appeal is outstanding.