Court of Appeal for Ontario

Date: February 2, 2017 Docket: C62680 Judges: Feldman, Rouleau and van Rensburg JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Angelina Marie Codina Appellant

Counsel

Angelina Marie Codina, acting in person

Robert Morin, for the respondent

Heard: January 11, 2017

On appeal from: The orders of Justice Susanne R. Goodman of the Superior Court of Justice, dated July 6, 2016 and July 21, 2016.

Decision

By the Court:

[1] Background and Procedural History

[1] The appellant is detained awaiting trial on a number of counts under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") in respect of advising on immigration matters as a non-lawyer without authorization to do so. She was originally charged on May 7, 2014, and released on bail on July 15, 2014. On September 17, 2015, she was arrested and charged with breaching her bail and committing further offences under the IRPA. Following a revocation hearing, her bail was cancelled on November 8, 2015. She was ultimately detained on all charges on December 8, 2015 after a show-cause hearing.

[2] A preliminary hearing was commenced for each of the two sets of charges (the May 2014 charges and September 2015 charges). Before receiving a decision on the preliminary hearings, the Crown preferred a direct indictment on December 11, 2016, with respect to all the charges under the IRPA. The original charges, including the breach of bail charges, were stayed on January 5, 2017.

[3] While detained, the appellant has initiated a number of proceedings including three bail reviews, an application to remove Crown counsel from the record, an application before Code J. challenging the constitutionality of a number of relevant statutory provisions and procedures, three applications for prerogative relief, and a two-part habeas corpus application. All of the proceedings initiated by the appellant have been dismissed. She remains in custody pending trial under the new indictment.

[4] This is the appeal of the denial of habeas corpus relief. The application judge gave two brief oral decisions for denying the two-part habeas corpus application on July 6 and 21, 2016, with written reasons to follow. To date, no written reasons have been provided. In these circumstances, the court agreed with the appellant that it was not in the interests of justice to delay the hearing of the appeal any longer.

Decision Below

[5] The appellant's habeas corpus application proceeded in two parts. The first part of the appellant's argument was that the border service officers who arrested her did not have the statutory authority to do so. The application judge held that the officers had the requisite authority and in a brief oral statement, she dismissed the application on that ground on July 6, 2016.

[6] The second part of the application was a challenge to the detention order of the Justice of the Peace dated December 8, 2015, on various jurisdictional and constitutional grounds. At the second hearing, the appellant raised two further issues – the failure to hold a 90-day bail review and an argument under s. 11(b) of the Canadian Charter of Rights and Freedoms. The application judge noted that the appellant's argument on delay was that the amount of time she would spend in pre-trial custody would be close to, or could exceed, any sentence she would receive if convicted.

[7] On July 21, 2016, the application judge gave brief oral reasons dismissing the balance of the grounds and stating that the written reasons for her dispositions on all grounds that could form part of a habeas corpus application would be provided later that week. The application judge then stated that there were other issues raised that did not properly form part of a habeas corpus application.

[8] The application judge also noted that the appellant, being incarcerated and self-represented, did not fully comply with required procedures in raising Charter issues, but that all issues were argued in any event. The application judge was also aware that the appellant had had one bail review before Himel J. but the reasons for dismissal were not provided. In her oral endorsement the application judge stated that many of the grounds being raised were essentially re-arguments of positions taken on the detention application and that would be the subject of a bail review.

[9] Although the appellant raised the issue that the duration of her pre-trial custody could well exceed her ultimate sentence if convicted, the application judge did not address that issue in her oral reasons.

Issues on this Appeal

[10] The appellant was asked to address four issues at the appeal hearing:

1. The validity of the preferred indictment;
2. The impact of the stay on the continued validity of her detention;
3. The statutory authority for the border officers to arrest her; and
4. The duration of her pre-trial custody compared to her ultimate sentence if convicted.

[11] The first two issues were not raised before the application judge as they arise from the direct indictment that was filed last month, but were raised by the appellant in her appeal materials. We are satisfied that it is appropriate for this court to deal with these new issues as the record is sufficient to do so. The third and fourth issues were raised before the application judge.

[12] In her factum, the appellant raised two further arguments. In light of the short notice for scheduling this appeal, the appellant was not permitted to argue these issues at the hearing, with the possibility that she would return to argue them later. Her first additional issue relates to the constitutionality of a number of relevant statutory provisions and procedures. This issue was also raised before the application judge. The second issue is an attack on the evidentiary basis for her arrest and detention. It is unclear whether this issue was raised before the application judge.

Analysis

(1) Preferring of Direct Indictment

[13] The appellant submits that the direct indictment is a nullity because it was preferred with the "consent" of the Deputy Attorney General, when it is required that it be preferred "by" the Attorney General or Deputy Attorney General, relying on this court's decision in R. v. Dwyer (1978), 42 C.C.C. (2d) 83 (Ont. C.A.), rev'd on other grounds [1980] 1 S.C.R. 481.

[14] There is no merit in this submission because of an amendment to the Criminal Code since the Dwyer decision. In Dwyer, the direct indictment was preferred under s. 507 of the Criminal Code, but only with the consent of the Attorney General of Ontario, not directly by him. Subsection (3) provided:

507(3) Notwithstanding anything in this section, where

(a) a preliminary inquiry has not been held, or

(b) a preliminary inquiry has been held and the accused has been discharged,

an indictment under subsection (1) shall not be preferred except with the written consent of a judge of the court, or by the Attorney General.

[15] The court held that if the Attorney General does not personally sign the indictment, he must in a signed written direction clearly direct that the indictment be preferred or state that he prefers the indictment. To merely consent to the direct indictment being preferred would constitute an improper delegation of authority (pp. 100-101).

[16] However, the direct indictment in this case was filed under the current s. 577 of the Criminal Code which is differently worded and provides:

577 Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if

(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or

(b) in any other case, a judge of the court so orders.

[17] This section now allows an indictment to be preferred with the consent in writing of the Deputy Attorney General. As a result, there is no Dwyer defect in the preferred indictment.

(2) Continued Validity of Detention Order

[18] Second, the appellant argues that because the previous informations were stayed as of January 5, 2017, the previous detention order is also stayed or no longer exists. We reject this submission.

[19] Under s. 523(1.2), the previous detention order continues to apply in respect of the new indictment. That section provides:

523 (1.2) When an accused, in respect of an offence with which the accused is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, and an indictment is preferred under section 577 charging the same offence or an included offence, the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the indictment.

[20] The purpose and effect of s. 523(1.2) are to continue the previous detention order and make it apply to the new indictment. Any stay of the original charges therefore, has no effect on the ongoing status of the original detention order.

[21] In conclusion, there is no basis to grant habeas corpus relief based on the two new issues raised by the appellant arising out of the direct indictment.

(3) Remaining Grounds

[22] This court does not have reasons from the application judge on the legal issues raised. Nor did the Crown assist the court by providing copies of the reasons of the other judicial officers who have addressed this matter, some of which were referred to by the application judge in her oral reasons. As a result, the court would in effect be deciding the remaining issues as a court of first instance without a proper record.

[23] Further, it appears that there is considerable overlap between the constitutional issues the appellant raised on her habeas corpus application and those raised on the application before Code J., which was brought following the dismissal of the habeas corpus application. Justice Code declined to deal with most of the issues on their merits. Relying on the decision of this court in R. v. Duvivier, 64 C.C.C. (3d) 20 (Ont. C.A.), at pp. 23-25, he held that challenges to the jurisdiction of the court and the constitutionality of the underlying provisions should be determined at trial, on a full record. In Duvivier, this court stated that:

Mr. Justice Farley also had original jurisdiction as a judge of the superior court to consider the application for declaratory relief brought under s. 24(1) of the Charter. The jurisdiction to grant that relief, either by way of prerogative writ or under s. 24(1) of the Charter, is discretionary. It is now firmly established that a court should not routinely exercise that jurisdiction where the application is brought in the course of ongoing criminal proceedings. In such cases, it is incumbent upon the applicant to establish that the circumstances are such that the interests of justice necessitate the immediate granting of the prerogative or Charter remedy by the superior court.

These cases dictate that issues, including those with a constitutional dimension, which arise in the context of a criminal prosecution should routinely be raised and resolved within the confines of the established criminal process which provides for a preliminary inquiry (in some cases), a trial, and a full appeal on the record after that trial.

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.

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. R. v. Rahey supra, provides a good example of a situation in which such intervention was warranted. [Citations omitted.]

[24] However, in the last paragraph quoted from Duvivier, the court emphasized that where circumstances require the Superior Court to intervene in the interests of justice, the court may exercise that power on a habeas corpus application. As the Supreme Court recently stated, habeas corpus is a crucial remedy for those whose residual liberty has been taken from them by the state and should rarely be subject to restrictions: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 54.

[25] In oral argument, the appellant acknowledged that although she may argue at her trial the issues she is raising that challenge the legality of a number of provisions of the IRPA and Criminal Code that underlie the charges or procedures employed, she is raising them here because she remains incarcerated pending trial.

[26] The appellant also again raises the issue regarding the duration of her pre-trial custody in relation to the potential sentence she could receive if convicted. She has now spent 18 months in pre-trial custody. Over sixteen months have passed since her re-arrest on charges that she breached her bail, and while the new charges she allegedly committed while on bail are proceeding, the charges that she failed to comply with her bail have been stayed.

[27] The maximum sentence for five of the counts is two years and five years for the sixth count. The appellant relies on case law that shows that the range of sentences for immigration offences is much lower than two years, and that there is a strong argument that she will have spent a longer period incarcerated in pre-trial custody than she would if she were convicted and sentenced for her alleged conduct. See R. v. Dhalla (2007), 63 Imm. L.R. (3d) 49 (Ont. S.C.) and R. v. Ren, 2015 ONSC 3397, 35 Imm. L.R. (4th) 327.

[28] At this point the appellant has been in custody for a further six months since the application judge's dismissal of her habeas corpus application. She has had two further bail reviews. The court was not provided with the reasons on any of the three bail reviews. However, the court was able to obtain a copy of the oral reasons of the third one of December 29, 2016. While the appellant raised the issue of the duration of her pre-trial custody compared to her potential sentence on conviction as one of a number of grounds, it was not specifically addressed in the reasons.

[29] In our view, this is now a serious liberty issue, which is why this court expedited the hearing of the appeal. However, it is an issue that is best addressed in the context of a bail review. Although the appellant has argued the issue before, it does not appear to have been fully considered. As well, more time has passed and the breach of bail charges have now been stayed. These are new factors that may well affect the considerations of a judge when determining the issues on a bail review.

Disposition

[30] In our view, in all these circumstances, the appropriate order is to set aside the decision of the application judge for failure to give adequate reasons and order a new bail review hearing to be held forthwith. These reasons are to be provided by the Crown to the judge conducting the bail review.

[31] A new habeas corpus hearing is adjourned pending the outcome of the bail review.

Released: February 2, 2017

"K. Feldman J.A."

"Paul Rouleau J.A."

"K. van Rensburg J.A."

Footnotes

[1] The following facts are based on those provided by the parties to this appeal.

[2] See R. v. Jones (1996), 32 O.R. (3d) 365 (C.A.), where this court upheld a decision by a motion judge to adjourn a habeas corpus application and order a new bail hearing following a direct indictment.