Her Majesty the Queen v. Codina

[Indexed as: R. v. Codina]

Ontario Reports

Court of Appeal of Ontario

Doherty, Hourigan and Pardu JJ.A.

December 30, 2020

153 O.R. (3d) 727 | 2020 ONCA 848

Case Summary

Charter of Rights and Freedoms — Fundamental justice — Overbreadth — Vagueness — Accused convicted of providing advice or representation for consideration in connection with an immigration proceeding or application, and of counselling misrepresentation — Provisions under which accused convicted were neither vague nor overbroad — Canadian Charter of Rights and Freedoms, s. 7 — Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 91, 126.

Constitutional law — Distribution of legislative authority — Criminal jurisdiction — Immigration — Accused convicted of providing advice or representation for consideration in connection with an immigration proceeding or application — Accused arguing that offence related to giving of legal advice and was a matter of property and civil rights within exclusive jurisdiction of provincial government — Provision under which accused charged fell within both federal immigration power and criminal law power — Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 91.

Criminal law — Trial — Charge to jury — Indictment and information --Accused convicted of providing advice or representation for consideration in connection with an immigration proceeding or application, and of counselling misrepresentation — Trial judge correctly concluding that all counts complied with pleading requirements, did not err with respect to relevance of evidence, did not misdirect jury with respect to meanings of words in statutory provisions and did not err in not putting mistake of fact to jury — Criminal Code, R.S.C. 1985, c. C-46, s. 581 — Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 91, 126.

Immigration — Offences — Accused convicted of providing advice or representation for consideration in connection with an immigration proceeding or application, and of counselling misrepresentation — Accused claiming that advice did come from her directly but was provided through her company by authorized persons — Charges arose from advice given by accused not by other employees of corporate entity — Charges were valid and trial judge committed none of the multiple errors alleged by accused.

The accused was the sole officer, director and shareholder of a company providing a variety of immigration services and advice. She was a disbarred lawyer andnot a licensed immigration consultant. She was convicted by a jury of four counts of knowingly providing advice or representation for consideration in connection with an immigration proceeding or application, contrary to s. 91(1) of the Immigration and Refugee Protection Act ("IRPA"), and one count of knowingly counselling a person to make a misrepresentation in relation to matters relevant to the administration of the IRPA, contrary to s. 126. The trial judge imposed a total sentence of seven years, with two years' credit for presentence custody. The accused's sentence appeal was heard and dismissed. Alleging that the charges were not valid and that the trial judge committed several errors, the accused appealed her conviction.

Held, the appeal should be dismissed.

The accused's challenge to the validity of the charges was rejected. She alleged that the officers of the Canadian Border Services Agency had no statutory authority to arrest and detain her. However, the authority of the agents to arrest had no effect on the jurisdiction of the Superior Court to try the offences in the indictment, which was preferred pursuant to s. 577 of the Criminal Code. In any event, the trial judge properly concluded that the officers did have the requisite statutory authority. The accused argued that s. 91(1) of the IRPA related exclusively to the regulation of the business of providing legal advice and thus was a matter of property and civil rights under the exclusive jurisdiction of the provincial government. The provision was designed to ensure that anyone authorized to provide advice and representations was competent and honest. Thus the provisions enhance the overall integrity of the IRPA. In addition, the provision regulated just one feature of the process relating to applications and proceedings provided for in the IRPA, and fell within the federal constitutional power along with the rest of the Act. It was also valid federal legislation under the criminal law power. Neither s. 91(1) nor s. 126 were contrary to s. 7 of the Charter. Both provisions created offences punishable by imprisonment using broad language, but they werejustifiably broad given the purpose of the legislation. It was enacted in response to concerns that those seeking access to various programs and proceedings under the IRPA were being financially exploited by dishonest and incompetent persons describing themselves as immigration consultants. The provisions gave fair notice of the prescribed conduct and so for constitutional purposes was not vague.

The accused's arguments based on alleged trial errors were rejected. The language used in counts one to four in the indictment tracked the statutory language in s. 91, which created a single offence. The language of each count in the indictment, considered in combination with the disclosure and particulars provided, described a single transaction referable to the particular complainant's dealings with the accused and her company. The fifth count as framed provided sufficient detail to permit a proper defence and the conversations which contained the actual reus of that offence had been disclosed to the accused. The trial judge correctly concluded that all of the counts complied with the pleading requirements of the Criminal Code. The trial judge did not err in holding that the accused's acquittal on an unrelated charge under s. 91 in Quebec in 2015 was irrelevant to the current charges. The accused argued that her company was structured and operated in a manner intended to ensure that any assistance given or representation provided came ultimately from authorized persons. The trial judge appreciated that the operation of the company was not the focus of the trial and made no error as to how she treated that evidence. The accused argued that the s. 91 prohibition applied only where the consideration was provided to the actual provider of the advice or representation, which she asserted was made by the corporation and not by the accused in her personal capacity. However, that argument was not supported by the statutory language and she was tried only in relation to advice she gave, not what other employees of the company may have given. She cannot evade criminal responsibility by seeking to hide behind the corporate veil.There was no misdirection to the jury on the meaning of "proceeding or application" in s. 91, in that there was no merit or logic to the proposition that a proceeding or application had to have been actually commenced for an offence to have been committed. There was no misdirection on the elements of the offence under s. 126. The trial judge correctly limited the meaning of the word "advice" in s. 91 and properly drew a distinction between advice and information. The use of the word "knowingly" in s. 91 did not signal a Parliamentary intention to create a defence based on an accused's individual understanding of the meaning of the language of the section, so there was no error in not putting mistake of fact to the jury.

Cases referred to

Barreau de Montréal c. Codina, [2015] J.Q. no 6253, 2015 QCCQ 5833, EYB 2015-254185; R. v. Barton, [2019] S.C.J. No. 33, 2019 SCC 33, 435 D.L.R. (4th) 191, [2019] 7 W.W.R. 191, 86 Alta. L.R. (6th) 1, 376 C.C.C. (3d) 1, [2019] 4 C.N.L.R. 161, 54 C.R. (7th) 231, EYB 2019-311744, 2019 CCAN para. 10,019, 2019EXP-1485; R. v. Codina No. 1, [2017] O.J. No. 6765, 2017 ONSC 7162, 143 W.C.B. (2d) 580, 56 Imm. L.R. (4th) 83 (S.C.J.); R. v. Codina No. 2, [2017] O.J. No. 6766, 2017 ONSC 7236 (S.C.J.); R. v. Codina No. 3, [2017] O.J. No. 6767, 2017 ONSC 7561 (S.C.J.); R. v. Codina No. 4, [2017] O.J. No. 6768, 2017 ONSC 7315, 401 C.R.R. (2d) 72 (S.C.J.); R. v. Codina No. 5, [2017] O.J. No. 6764, 2017 ONSC 7323 (S.C.J.); R. v. Codina No. 6, [2017] O.J. No. 6814, 2017 ONSC 7648 (S.C.J.); R. v. Codina (No. 7), [2018] O.J. No. 964, 2018 ONSC 1096, 146 W.C.B. (2d) 551, 57 Imm. L.R. (4th) 175 (S.C.J.); R. v. Dorosh, [2003] S.J. No. 871, 2003 SKCA 134, [2004] 8 W.W.R. 613, 241 Sask. R. 180, 183 C.C.C. (3d) 224, 20 C.R. (6th) 368, 60 W.C.B. (2d) 330; R. v. Fell (1981), 1981 CanLII 1949 (ON CA), 34 O.R. (2d) 665, [1981] O.J. No. 3176, 131 D.L.R. (3d) 105, 64 C.C.C. (2d) 456, 59 C.P.R. (2d) 34 (C.A.); R. v. Hamilton, [2005] 2 S.C.R. 432, [2005] S.C.J. No. 48, 2005 SCC 47, 255 D.L.R. (4th) 283, 336 N.R. 302, [2006] 2 W.W.R. 583, J.E. 2005-1408, 50 Alta. L.R. (4th) 1, 198 C.C.C. (3d) 1, 30 C.R. (6th) 243, 135 C.R.R. (2d) 228, 65 W.C.B. (2d) 623, EYB 2005-93219, JCPQ 2005-155; R. v. Levkovic (2013), 125 O.R. (3d) 320, [2013] 2 S.C.R. 204, [2013] S.C.J. No. 25, 2013 SCC 25, 359 D.L.R. (4th) 197, 368 D.L.R. (4th) 667, 444 N.R. 4, J.E. 2013-807, 305 O.A.C. 1, 296 C.C.C. (3d) 457, 1 C.R. (7th) 223, 282 C.R.R. (2d) 297, 106 W.C.B. (2d) 51, 2013 CCAN para. 10,031, 2014 SCC 25, 2013EXP-1469; R. v. Mabior, [2012] 2 S.C.R. 584, [2012] S.C.J. No. 47, 2012 SCC 47, 352 D.L.R. (4th) 619, 434 N.R. 341, [2012] 11 W.W.R. 213, J.E. 2012-1903, 284 Man. R. (2d) 114, 290 C.C.C. (3d) 32, 96 C.R. (6th) 1, 268 C.R.R. (2d) 39, 103 W.C.B. (2d) 905, EYB 2012-212075, 2012 DFQ para. 10,451, 2012 CCAN para. 10,053, 2012EXP-3544; R. v. MacDonald, [2014] 1 S.C.R. 37, [2014] S.C.J. No. 3, 2014 SCC 3, 366 D.L.R. (4th) 381, 453 N.R. 1, J.E. 2014-109, 341 N.S.R. (2d) 353, 303 C.C.C. (3d) 113, 7 C.R. (7th) 229, 298 C.R.R. (2d) 190, 111 W.C.B. (2d) 47, EYB 2014-231703, 2014 CCAN para. 10,004, 2014EXP-206; R. v. Meer, [2015] A.J. No. 1200, 2015 ABCA 340, 126 W.C.B. (2d) 252, 607 A.R. 358; R. v. Robinson (2001), 2001 CanLII 24059 (ON CA), 53 O.R. (3d) 448, [2001] O.J. No. 1072, 143 O.A.C. 80, 153 C.C.C. (3d) 398, 49 W.C.B. (2d) 391 (C.A.); R. v. Zora, [2020] S.C.J. No. 14, 2020 SCC 14, 446 D.L.R. (4th) 358, 63 C.R. (7th) 247, 388 C.C.C. (3d) 1, 2020EXP-1474; Reference re Genetic Non-Discrimination Act, [2020] S.C.J. No. 17, 2020 SCC 17, 2020EXP-1639, 2020 CLLC para. 230-036, 447 D.L.R. (4th) 359

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 24(1)

Constitution Act, 1867, 30 & 31 Vict., c. 3, ss. 91 25., 27., 92 13., 95

Criminal Code, R.S.C. 1985, c. C-46, ss. 2 [as am.], 19, 322, 577 [as am.], 581(1), (3), 590(1)

Director of Public Prosecutions Act, S.C. 2006, c. 9, s. 121 [as am.]

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 91 [as am.], (1) [as am.], (2) [as am.], (3) [as am.], (4) [as am.], (5) [as am.], (5.1), (6) [as am.], (9) [as am.], 126

On APPEAL from the convictions entered by Justice Anne M. Molloy of the Superior Court of Justice, on November 22, 2017, after a trial by judge and jury.

Alan D. Gold and Laura Metcalfe, for appellant.

Kevin Wilson and Vanita Goela, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: —

I

Overview

[1] The appellant was convicted by a jury of four counts of providing advice or representation for consideration, contrary to s. 91(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), and one count of knowingly counselling a person to make a misrepresentation in relation to matters relevant to the administration of the IRPA, contrary to s. 126. The trial judge imposed a total sentence of seven years, with two years' credit for presentence custody, yielding a net sentence of five years. The trial judge also ordered the appellant to pay restitution in the amount of $30,200.

[2] The appellant appealed conviction and sentence. Her sentence appeal was heard and dismissed in December 2019. The conviction appeal was heard on October 26, 2020 and dismissed from the bench with reasons to follow.

II

The Evidence

[3] The relevant events occurred between the fall of 2011 and early 2014. The appellant is a disbarred lawyer and is not a licensed immigration consultant under the IRPA.

[4] The appellant was the sole officer, director and shareholder of Codina International. That company provided a variety of immigration-related services and advice through offices in Toronto and elsewhere. Codina International had full and part-time employees and, from time-to-time, employed lawyers and licensed immigration consultants.

[5] Persons who went to the offices of Codina International in Toronto seeking immigration-related assistance could potentially deal with a variety of people, including the appellant. Individuals who decided to retain Codina International, signed a retainer with Codina International only, and not with any individuals at Codina International. All moneys paid by clients went to a corporate bank account under the exclusive control of the appellant.

[6] Each of the five charges involved individuals who went to Codina International, seeking advice and representation in respect of immigration-related matters. They all ended up dealing with the appellant.

(i) Count one

[7] Count one charged that the appellant:

Did knowingly directly or indirectly, advise or represent, or offer to advise or represent . . . Jalil Chitizadeh and Sara Chitizadeh for consideration, in connection with a proceeding or application under the IRPA.

[8] Mr. Chitizadeh, who is originally from Iran, was a permanent resident of Canada in 2011. He contacted Codina International and spoke to the appellant about bringing his daughter, Sara, and her son to Canada. Sara had made her way to Mexico from Iran and had been granted refugee status there. She wanted to come to Canada.

[9] Mr. Chitizadeh booked an appointment at Codina International. He spoke with someone and explained his daughter's situation. This person called the appellant, who joined the conversation. The appellant asked some questions and told Mr. Chitizadeh Sara should apply to come to Canada under the Temporary Residence Program ("TRP"), one of the many programs available through the IRPA. The appellant explained to Mr. Chitizadeh the TRP was the quickest way to get to Canada and Sara could apply for permanent residence after she was in the country.

[10] Mr. Chitizadeh retained Codina International to make an application under the TRP. He paid Codina International $5,250.

[11] In his discussions with the appellant, Mr. Chitizadeh explained his daughter feared for her safety in Mexico and may not want to wait the three months required for approval of the TRP application. The appellant told Mr. Chitizadeh if his daughter and her son came to Canada illegally, they could claim refugee status and any money paid to Codina International in respect of the TRP application could be put toward representing Sara on a refugee claim.

[12] Sara and her son did not wait for the TRP application to be processed. She and her son came to Canada and claimed refugee status. When Sara arrived, she was given forms to complete by the immigration authorities. She took them to Codina International. The forms were completed by staff at Codina International with input from the appellant.

[13] One of the forms prepared at Codina International contained what purported to be the signature of a lawyer named Sunny Vincent, affirming he had provided assistance in filling out the forms. Sunny Vincent testified and denied any involvement in completing the forms. He said the signature on the documents was not his signature.

[14] Sara took the forms completed at Codina International to the Immigration Canada office. After examining the forms, the officer told Sara she was not eligible for refugee status in Canada because she had been granted refugee status in Mexico. Sara called the appellant and explained the situation. The appellant told her the officer was wrong and told Sara to put the officer on the phone with the appellant. The appellant and the officer spoke for about ten minutes. Sara could hear the appellant yelling at the officer. The appellant then spoke to Sara again and told her to come to the office.

[15] The appellant met with Sara and her father and told them they should appeal, as they had a very strong case. The appellant also said there were other ways Sara could stay in Canada. Sara and her father left. They did not return to Codina International.

(ii) Count two

[16] Count two charged the appellant:

Did knowingly . . . directly or indirectly advise or represent or offer to advise or represent . . . Mahjub Ahmadi and Sohaila Ahmadi for consideration, in connection with a proceeding or application under the IRPA.

[17] Mahjub and Sohaila Ahmadi are husband and wife. They wanted to bring Sohaila's sister and family, who were living in Pakistan as refugees, to Canada.

[18] Mahjub and Sohaila first met with an employee of Codina International in February 2012 and provided pertinent information. This person told them they should make an application for a permit allowing her family and sister to come to Canada under the TRP. This person explained how long it would take to get a permit under this program and the probable costs.

[19] Mahjub and Sohaila then spoke with the appellant over Skype. They were told the appellant was the head of the firm and could answer any questions they might have. The appellant assured them the TRP was the best option and that the sister and her family would be in Canada in about three months.

[20] Mahjub signed a retainer agreement with Codina International. He made two payments totalling $6,450.

[21] Mahjub gathered the documents he was told were needed to complete the forms provided to him at Codina International. He sent them on to Codina International. Mahjub heard nothing from Codina International for many months.

[22] Eventually, about a year later, after various communications with persons at Codina International (not the appellant), Mahjub arranged a second meeting to find out the status of his sister-in-law's application. They met with the appellant. She told them she needed the rest of the retainer before the application could be submitted. Mahjub and the appellant discussed the status of the application. The appellant showed him what she said was a draft of the submissions that would be filed in support of the application. Mahjub noted many factual errors in the submissions.

[23] The appellant told Mahjub there were still several documents missing from the application. She assured him any errors in the written submissions in support of the application would be corrected.

[24] After this meeting, Mahjub had lost all confidence in the appellant and Codina International. He did not use their services any further.

(iii) Count three

[25] Count three charged that the appellant:

Did knowingly . . . directly or indirectly advise or represent, or offered to advise or represent . . . Nikolaos Mouzos, Elizavet Mourtzis and Ioanna Mourtzis, for consideration, in connection with an application under the IRPA.

[26] Mr. Nikolaos Mouzos is a Greek citizen. At the relevant time, he was visiting his relatives in Canada and wanted to immigrate to Canada.

[27] Mr. Mouzos first went to Codina International in the summer of 2012. He was accompanied by his nieces, Elizavet Mourtzis and Ioanna Mourtzis. At the first meeting, he met with an employee of Codina International, who outlined various options available to him under the IRPA. A permanent resident visa was one of those options.

[28] The appellant joined the meeting and discussed with Mr. Mouzos the options that had been laid out for him. She expressed confidence in either an intra-company transfer application, or a permanent resident visa application. Mr. Mouzos had been told by the first person he dealt with at Codina International that the appellant was a lawyer.

[29] Mr. Mouzos and his nieces had a second meeting with the appellant about two weeks later. The intra-company transfer application was no longer an option. The appellant told him she was 100 per cent certain she could get him into Canada under the permanent resident visa program. She indicated she would supervise the application.

[30] Mr. Mouzos signed a retainer agreement with Codina International and eventually made payments totalling $9,000. He also gathered documents he had been told he would need and left them at Codina International. Mr. Mouzos signed a document which purported to authorize representation by a person named Singh Uppal. Mr. Mouzos testified he did not realize he had signed such a document and he believed the appellant was his representative.

[31] Mr. Mouzos and the appellant had a third meeting in February 2013. His niece, Elizavet, and her two daughters were with Mr. Mouzos. The daughters had learned certain information about the appellant's criminal past. Initially, they met with a man named Kosta. He told them he had prepared the file. He also confirmed the appellant approved everything before it left the office. The meeting was tense. The daughters demanded the return of the funds Mr. Mouzos had paid. They also surreptitiously recorded the conversation.

[32] The appellant joined the meeting. The conversation became heated. The appellant assured Mr. Mouzos and his niece and her daughters Mr. Mouzos would be approved as a permanent resident and that it was easy to get the required approval. She urged Mr. Mouzos to proceed with the application, telling him she would personally represent him on the application. She told him she had over 30 years' experience in the business and he should trust her.

[33] Ultimately, Mr. Mouzos did not trust the appellant. Neither the appellant nor Codina International actually represented Mr. Mouzos on any application.

(iv) Count four

[34] Count four charged that the appellant:

Did knowingly . . . directly or indirectly, advise or represent, or offer to advise or represent . . . Farhad Abdolvahabi, Sarasadat Hosseini and Behzad Mahmoudi, for consideration in connection with a proceeding or application under the IRPA.

[35] Mr. Abdolvahabi resided in Canada at the relevant time. His sister-in-law, Sarasadat, and her husband Behzad lived in Iran. Both were professionals and wanted to immigrate to Canada.

[36] Mr. Abdolvahabi went to Codina International seeking advice for his sister-in-law and her husband as to the best way to immigrate to Canada. He met with the appellant several times between May 2012 and January 2014. Mr. Abdolvahabi explained he was there on behalf of his sister-in-law and husband, who were interested in immigrating to Canada. Mr. Abdolvahabi recorded most of his conversations at Codina International so he could accurately report their content to his sister-in-law and her husband. Transcripts of the recordings of the conversations were admitted at trial.

[37] Mr. Abdolvahabi retained Codina International to pursue at least two applications on behalf of his sister-in-law and her husband. He made payments totalling $9,100. No applications were ever made.

[38] In the recorded conversations, the appellant addressed various options available to Mr. Abdolvahabi's sister-in-law and her husband. She strongly recommended different programs, including the skilled worker program and the sponsorship program. The appellant also thought the sister-in-law and husband should pursue an application based on an intra-company transfer of employment. The appellant urged Mr. Abdolvahabi to proceed quickly, indicating there was nothing to worry about and it was all just "paperwork".

[39] The appellant made it clear in these conversations she would personally take control of any applications made on behalf of Mr. Abdolvahabi's sister-in-law and her husband. The appellant told Mr. Abdolvahabi she would give these applications "top priority". She also told Mr. Abdolvahabi he should deal only with her and not with others in the Codina International office, as they did not have her experience and expertise.

(v) Count five

[40] Count five, like count four, arose out of the appellant's dealings with Mr. Abdolvahabi. The count charged that the appellant:

Knowingly counselled Farhad Abdolvahabi to misrepresent or withhold facts relating to a relevant matter that could have induced an error in the administration of the IRPA.

[41] The evidence supporting this charge came primarily from the recorded conversations between Mr. Abdolvahabi and the appellant, some of which were summarized in respect of count four. The Crown alleged the appellant counselled Mr. Abdolvahabi to fabricate a number of false corporate documents to be used to create a fictional basis for an application on behalf of the sister-in-law for a work permit under the intra-company transfer program. The appellant urged Mr. Abdolvahabi to go ahead with this application without consulting his sister-in-law and her husband.

[42] Mr. Abdolvahabi felt uncomfortable proceeding as suggested by the appellant. He thought it was dishonest. Mr. Abdolvahabi discussed the matter with his sister-in-law. Ultimately, he told the appellant they were not interested in proceeding via an intra-company transfer application. Nonetheless, the appellant continued to push that option.

[43] In the end, there were no applications made on behalf of Mr. Abdolvahabi's sister-in-law and her husband.

[44] The appellant did not testify.

III

The Grounds of Appeal

[45] The appellant raised 11 grounds of appeal. She made the same arguments at trial, some of them more than once. The trial judge gave comprehensive reasons, addressing all of the issues raised by the appellant. We are in substantial agreement with her analysis and have drawn heavily on her reasons when addressing the various grounds of appeal.[^1]

[46] The grounds of appeal can be broken down into two categories. Three of the arguments challenge the validity of the charges. The remaining grounds of appeal allege errors at trial, beginning with the failure to quash the indictment, moving to alleged erroneous evidentiary rulings and culminating in submissions challenging several aspects of the jury instructions.

A. The validity of the charges

(i) Did the officers of the Canadian Border Services Agency (the "CBSA") have jurisdiction to arrest and detain the appellant?

[47] The appellant, who represented herself at trial, argued the CBSA officers had no statutory authority to arrest and detain her. The argument is repeated in the appellant's factum, but counsel on appeal did not make any oral submissions in support of this ground of appeal.

[48] I would reject the argument for two reasons. First, the authority of the CBSA officers to lay the charges and arrest the appellant had no effect on the jurisdiction of the Superior Court to try the offences contained in the indictment. The trial proceeded on charges contained in an indictment preferred under s. 577 of the Criminal Code, R.S.C. 1985, c. C-46. As the trial judge explained in one of her rulings, the definition of Attorney General in s. 2 of the Criminal Code effectively included the Director of Public Prosecutions by virtue of the provisions of the Director of Public Prosecutions Act, S.C. 2006, c. 9, s. 121: R. v. Codina No. 2, at paras. 21-24. The authority to prefer the indictment and prosecute the charges in the indictment came from the Criminal Code. That authority did not depend on, and was unaffected by, the power of the CBSA officers to lay charges and arrest the appellant.

[49] The only way the authority of the CBSA officers to charge and arrest the appellant could be relevant to the authority of the Superior Court to proceed to trial on the indictment would be if the conduct of those officers justified a stay of proceedings under either s. 24(1) of the Canadian Charter of Rights and Freedoms, or under the common law abuse of process doctrine. Counsel for the appellant, correctly in my view, does not suggest either remedy was available in this case.

[50] Second, even if the authority of the CBSA officers had some relevance to the validity of the indictment, I accept the trial judge's analysis of the relevant legislation. The officers had the requisite statutory authority: R. v. Codina No. 1, at paras. 16-35. The trial judge did make one minor error, confusing the French and English versions of one of the many relevant statutory provisions. That error had no effect on her analysis: R. v. Codina No. 1, at paras. 29-31.

(ii) Is s. 91(1) of the [IRPA](https://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html) ultra vires the federal government?

[51] Section 91(1) of the IRPA creates a prohibition against representing or advising, or offering to represent or advise, persons in connection with proceedings or applications under the IRPA. The prohibition applies only if the representation or advice is given for consideration. The section reads:

91(1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration -- or offer to do so -- in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

[52] Sections 91(2), (3), (4) and (5) set out categories of persons, organizations or other entities excluded from the prohibition created by s. 91(1). Lawyers and their articling students, entities who have entered into an agreement with the Crown, or members of an organization designated by the Minister, are permitted to give advice and provide representation for consideration.

[53] The appellant submits s. 91(1) relates exclusively to the regulation of the business of providing legal advice. The appellant argues this matter is under the exclusive jurisdiction of the provincial government pursuant to s. 92 13. of the Constitution Act, 1867, 30 & 31 Vict., c. 37 (property and civil rights).

[54] I do not accept this characterization of s. 91(1). The section must be examined in the context of the entire Act. The IRPA provides a wide variety of applications and proceedings relating to various benefits, programs and powers under the IRPA. Many of the individuals seeking access to the programs and benefits under the IRPA cannot navigate the complexities of the IRPA without professional assistance. Section 91 identifies those persons and other entities who can provide advice or representation in connection with applications and proceedings under the IRPA in exchange for money. By limiting those entitled to be paid for advice or representation to those who by virtue of their profession, agreement with the Crown, or designation by the Minister, are subject to ongoing oversight and control, s. 91 protects those persons in need of that advice and representation from incompetent and/or dishonest representation. In doing so, s. 91 enhances the overall integrity of the IRPA, thereby promoting the purposes underlying the legislation.

[55] No one argues the various proceedings or applications provided for under the IRPA are beyond the constitutional powers of the federal government under either s. 91 25. of the Constitution Act, 1867 (naturalization and aliens), or s. 95 of the Constitution Act, 1867. It follows, in my view, s. 91, which regulates one feature of the process relating to those applications and proceedings, is equally within the federal constitutional power: R. v. Codina No. 1, at paras. 47-48.

[56] The appellant points out s. 91 is limited to the providing of advice or representation for consideration. She submits that if the purpose of the section was to protect individuals from incompetent or dishonest advice, it would not be limited to advice provided for consideration. The appellant further submits s. 91 does not speak to the competence of the advice or representation provided in any given case. Once again, she submits this feature of the legislation is inconsistent with legislation designed to protect those seeking the services and enhance the integrity of the legislation.

[57] Contrary to the appellant's submissions, I think s. 91 is very much concerned with the competence and honesty of those providing advice or representation for money. By limiting those who can provide that advice and representation to members of the legal profession, and persons who are effectively pre-approved by the Crown or the Minister, s. 91 provides supervision and control over anyone authorized to provide advice and representation. That supervision and control will enhance the quality of the service provided. In addition, s. 91 also provides for ongoing supervision and control by law societies and the government by those in the business of providing advice and representation in respect of the IRPA: see IRPA, s. 91(5.1), (6).

[58] Nor in my view does the limitation of s. 91 to advice or representation given for compensation affect the constitutionality of the section. Parliament was entitled to conclude the concerns associated with incompetent and dishonest representation or advice arose in the context of those who were seeking to be paid for that representation, and not in cases involving friends, family members or Good Samaritans seeking to assist those attempting to access the various programs and benefits available under the IRPA.

[59] The Crown also argues s. 91 is valid federal legislation under the criminal law power in s. 91 27. of the Constitution Act, 1867. The trial judge agreed: R. v. Codina No. 1, at para. 48.

[60] A law is a valid exercise of the criminal law power if that law:

-- creates a prohibition;

-- provides for a penalty if the prohibition is breached; and

-- is backed by a valid criminal law purpose: see Reference re Genetic Non-Discrimination Act, [2020] S.C.J. No. 17, 2020 SCC 17, at paras. 67-69.

[61] The first two criteria are not in issue. Section 91 creates a prohibition and provides for a penalty: IRPA, s. 91(1), (9).

[62] The third criterion, a valid criminal law purpose, is also made out. As the legislative history, which the trial judge referred to in various rulings, makes clear s. 91 was introduced in response to the dishonest and criminally fraudulent conduct of persons who were taking money in exchange for advising or representing individuals in IRPA-related matters. The title of Bill C-35, "The Cracking Down on Crooked Consultants Act", makes the purpose crystal clear: see R. v. Codina No. 6, at paras. 25-34.

[63] By regulating those who could give advice and provide representation for money, Parliament sought, among other things, to prevent the fraud and dishonesty which had become prevalent when immigration consultants were not regulated. The activity targeted by the legislation engaged the government's legitimate interest in protecting individuals, particularly highly vulnerable individuals, from dishonest commercial practices. The legislation also sought to protect the integrity of the immigration system, a central feature of Canadian public law. Both purposes are valid criminal law purposes. Section 91 falls squarely within the criminal law power.

[64] The determination the legislation is valid federal legislation ends the vires analysis. As the trial judge observed, there was no evidence before her that s. 91 of the IRPA conflicted with any provincial legislation: R. v. Codina No. 1, at para. 49.

(iii) Are s. 91(1) and s. 126 of the [IRPA](https://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html) contrary to [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[65] In her factum, the appellant refers to the concepts of vagueness and overbreadth, both principles of fundamental justice under s. 7 of the Charter. As s. 91 and s. 126 both create offences punishable by imprisonment, they are subject to constitutional scrutiny under s. 7.

[66] At trial, the appellant argued the language of s. 91 and s. 126 of the IRPA should be interpreted in a manner consistent with the concerns animating the principles of vagueness and overbreadth: R. v. Codina No. 1, paras. 52-56. This is an argument directed at the statutory interpretation of those provisions and not their constitutionality.

[67] There is no merit to the overbreadth argument. The language in s. 91 and s. 126 is broad, but justifiably so, given the purpose of the legislation. The legislation was enacted in response to concerns that those seeking access to various programs and proceedings under the IRPA were being financially exploited by dishonest and incompetent persons describing themselves as immigration consultants. Individuals seeking access to various programs under the IRPA were often in particularly vulnerable situations, making them easy prey for fraudsters and fakers. The legislation aimed to drive those persons out of the business: R. v. Codina No. 6, at paras. 25-34. The language of the legislation had to be sufficiently broad to capture the various circumstances in which, and the various methods by which, the requisite advice or representation may be offered or provided. The appellant points to nothing in the language of the challenged sections to support the contention Parliament overshot its object.

[68] The vagueness argument seeks to equate vagueness as a principle of fundamental justice with language in an offence-creating provision that describes different ways of committing the same offence. An offence-creating provision is vague for constitutional purposes if it does not provide an accused with fair notice of the proscribed conduct. A provision which clearly articulates different ways in which an offence may be committed provides fair notice of the proscribed conduct, in the same way that several offences each dealing with one way of committing the proscribed conduct would provide fair notice. Any claim the language of s. 91, or s. 126, does not permit an interpretation delineating the scope of the prohibited conduct in a manner that provides an accused with fair notice of the nature of the prohibited conduct is belied by the trial judge's careful instructions to the jury on the elements of the offences: see R. v. Levkovic (2013), 2013 SCC 25, 125 O.R. (3d) 320, [2013] 2 S.C.R. 204, [2013] S.C.J. No. 25, at paras. 10, 32-37; R. v. Mabior, [2012] 2 S.C.R. 584, [2012] S.C.J. No. 47, 2012 SCC 47, at para. 14.

B. The alleged errors at trial

(i) Did the indictment comply with the pleadings requirements of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)?

[69] The appellant moved to quash all five counts in the indictment. She argued they did not comply with s. 581(1) in that each count did not allege a single offence, and was not limited to a single transaction. The appellant also contended the charges were void for non-compliance with s. 581(3). She maintained each count failed to provide sufficient detail of the circumstances of the alleged offence to allow her to identify the transaction referred to in the charge. The trial judge rejected these arguments: R. v. Codina No. 2, at paras. 26-31.

[70] Section 590(1) declares a count in an indictment may charge alternative ways of committing an offence, and in doing so, may allege different acts or omissions said to constitute the offence without running afoul of the "single transaction" requirement in s. 581(1): R. v. Codina No. 2, at para. 31. The language used in counts one to four in the indictment tracks the statutory language in s. 91. That section creates a single offence. The language of each count in the indictment, considered in combination with the disclosure and particulars provided, describes a single transaction referable to the particular complainant's dealings with the appellant and Codina International. The trial judge correctly concluded the charges complied with s. 581(1).

[71] The appellant's argument based on s. 581(3) was limited on appeal to the charge in count five. That charge alleged the appellant knowingly counselled the named complainant to misrepresent or withhold facts relating to a matter that could induce an error in the administration of the IRPA. The appellant argues the count as framed does not provide sufficient detail to permit a proper defence.

[72] In considering whether a charge contains sufficient information, a trial judge may look, not only at the language of the charge, but also any additional information provided to an accused by way of disclosure or through evidence at the preliminary inquiry: R. v. Robinson (2001), 2001 CanLII 24059 (ON CA), 53 O.R. (3d) 448, [2001] O.J. No. 1072, 153 C.C.C. (3d) 398 (C.A.), at para. 23. The appellant had full disclosure and a preliminary inquiry. That disclosure included transcripts of virtually all of the conversations between the appellant and Mr. Abdolvahabi. Those conversations contained the actus reus of the offence alleged in count five. It is difficult to imagine how the appellant could have had more detail relating to the circumstances of the offence alleged in count five.

[73] The trial judge properly concluded all of the counts complied with the pleading requirements of the Criminal Code.

(ii) Did the trial judge err in holding the appellant's acquittal on an unrelated charge under s. 91 of the [IRPA](https://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html) was irrelevant at the appellant's trial?

[74] The appellant was acquitted on a charge under s. 91 of the IRPA in Quebec in 2015: Barreau de Montreal c. Codina, [2015] J.Q. no 6253, 2015 QCCQ 5833. At trial, the appellant argued the judgment in the Quebec proceeding should be admitted as evidence she believed she was acting lawfully in the course of the dealings giving rise to the charges. The trial judge held the acquittal had no relevance to any issue before the jury: R. v. Codina No. 6, at paras. 44-45, 63-65.

[75] I agree with the trial judge for two reasons. First, the judgment in the Quebec case was released in June 2015. The events underlying these charges took place before June 2015. The Quebec judgment, which came after those events, could not have impacted on the appellant's state of mind at the relevant time.

[76] Second, as the trial judge observed, the acquittal in the Quebec case was predicated on the evidence adduced in that case and the trial judge's findings of fact. The verdict did not, and could not, speak to the evidence adduced at this trial or the facts as found by the jury on that evidence.

[77] The acquittal of the appellant on the charge in Quebec could not help the jury in assessing her liability on the charges in the indictment.

(iii) Did the trial judge err in excluding evidence of the corporate organization and operation of Codina International?

[78] The appellant submits the trial judge excluded evidence that would support the appellant's contention any advice or representation provided by her to any of the complainants was, in fact, offered and provided by the corporate entity, Codina International, and not by the appellant in any personal capacity. The appellant submits the trial judge should have permitted evidence demonstrating Codina International was structured and operated in a manner intended to ensure that any assistance given, or representation provided, came ultimately from persons who were authorized under the IRPA to provide that advice or representation.

[79] The jury heard a great deal of evidence about the operation of Codina International and its employment of various individuals, some of whom were qualified to give advice or provide representation under s. 91. The trial judge, however, appreciated that the operation of Codina International was not the focus of the trial. The appellant's liability turned on what she did and said in respect of the events giving rise to the charges. If she gave advice, she was responsible for that conduct, regardless of how her company was structured or organized its business.

[80] As a matter of law, if the appellant offered advice or provided representation, it was irrelevant to her liability that others operating within Codina International were also providing advice or representation. It was equally irrelevant that the appellant purported to give advice or provide representation in her capacity as a spokesperson, officer or employee of Codina International. The corporate veil offers no protection from personal criminal responsibility for one's own conduct: R. v. Fell (1981), 1981 CanLII 1949 (ON CA), 34 O.R. (2d) 665, [1981] O.J. No. 3176, 64 C.C.C. (2d) 456 (C.A.), at pp. 461-62 C.C.C.; R. v. Meer, [2015] A.J. No. 1200, 2015 ABCA 340, at para. 61.

[81] The trial judge accurately described the appellant's potential liability in her instructions to the jury:

In this case, the Crown does not allege that Ms. Codina is criminally responsible for advice provided by Codina International through any of its agents or employees other than Ms. Codina. A corporation cannot be licensed as a lawyer, nor can it be registered as a licensed immigration consultant under the ICCRC. There is also no legal requirement that a corporation whose employees provide immigration representation and advice must be owned by a person who is licensed. A corporation is a separate legal entity, but it cannot itself give advice. The advice is given by human beings, and those human beings are individually responsible for such advice. Thus, the conduct subject to this charge is the conduct of Ms. Codina herself. The issue is whether she personally provided advice. The fact that other employees gave advice is irrelevant. Likewise, it is not relevant that there may have been lawyers or licensed immigration consultants involved in the firm, or even performing work on a particular file. More than one person can provide advice on a matter. Further, one person could give advice even if another person in the firm is designated as a "representative" on documents filed with Canada Immigration. The issue for you to decide is whether Ms. Codina personally gave advice, not whether anyone else at Codina International did.

(Emphasis in original)

[82] At various points in the evidence, the trial judge stopped the appellant from questioning witnesses about the general operation of Codina International, and the responsibilities of various individuals. These rulings did not prevent the appellant from questioning witnesses about the circumstances relevant to any of the charges. The trial judge properly permitted some background narrative describing the operation of Codina International, but required the parties to focus on the events actually relevant to the charges. She made no error.

(iv) Did the trial judge err in failing to instruct the jury that the consideration for advice or representation prohibited by s. 91(1) had to be provided directly to the appellant?

[83] The appellant contends the prohibition in s. 91 applies only where the consideration is provided to the actual provider of the advice or representation. That claim finds no footing in the language of s. 91.

[84] Section 91 prohibits offering advice or providing representation for consideration. The section says nothing about the identity of the recipient of the consideration. Indeed, it does not require that consideration actually be received by anybody.

[85] Not only is the appellant's submission unsupported by the language of s. 91, that interpretation of the legislation would create an obvious and gaping loophole rendering the prohibition in s. 91 ineffective. The harm targeted by s. 91 exists regardless of the identity of the recipient of the consideration.

[86] The appellant submits it is unfair to hold the appellant liable for her personal acts even if done in the course of the operation of Codina International, while at the same time imposing liability based on consideration paid only to Codina International. I fail to see any unfairness. If the appellant engaged in the conduct prohibited by s. 91, and directed the payment of the consideration elsewhere, she remains equally responsible for her actions. In any event, it stretches credulity to find any unfairness here. The money went into a bank account totally controlled by the appellant. Clearly, she benefited directly from the consideration paid.

(v) Did the trial judge misdirect the jury on the meaning of the words "proceeding or application" in [s. 91](https://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html) of the [IRPA](https://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html)?

[87] Section 91 prohibits providing representation or giving advice for consideration "in connection with . . . a proceeding or application under this Act". The trial judge instructed the jury the prohibition included representation or advice in respect of a potential proceeding or application under the Act.

[88] The appellant submits s. 91 operates only where there is an actual proceeding under way or application made. She refers to other unrelated federal statutes which use phrases like "proposed proceeding". The appellant contends that is the kind of language required to warrant the interpretation of s. 91 given by the trial judge.

[89] The same argument was made before the trial judge. She rejected it and I adopt her analysis: R. v. Codina No. 6, at para. 62. She said, in part:

Ms. Codina argued that there could be no offence under s. 91(1) unless an application or proceeding was actually commenced under the IRPA. There is no merit or logic to that proposition. The section is meant to apply to persons who give advice or represent or offer to represent a person "in connection with" a proceeding under the IRPA. To require that such an application actually be commenced before the offence provision is triggered, would not only be contrary to the plain meaning of the words used, it would undermine the intent of the legislation. If Ms. Codina is correct, unlicensed individuals could give advice and offer to represent people and collect substantial amounts of money for their services, and then avoid prosecution merely by not commencing the application for which they were paid. The plain meaning of these words is that the advice or representation must relate to something that could be a proceeding or application under the IRPA if it proceeded, as opposed to advice about some unrelated matter.

(vi) Did the trial judge misdirect the jury on the elements of the offence under s. 126 of the IRPA and/or the evidence relevant to that count?

[90] The relevant portions of s. 126 of the IRPA provide:

126. Every person who knowingly counsels . . . any person to directly or indirectly misrepresent . . . material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.

[91] The appellant submits the trial judge improperly extended the reach of s. 126 to suggestions made by the appellant in the course of discussions with Mr. Abdolvahabi. The appellant submits mere proposals or suggestions lacking any element of encouragement or active inducement cannot constitute the actus reus of counselling: R. v. Hamilton, [2005] 2 S.C.R. 432, [2005] S.C.J. No. 48, 2005 SCC 47, at para. 29.

[92] As I read the jury instructions, the trial judge defined counselling in a manner that is entirely consistent with the appellant's submission. She told the jury:

There are several ways in which one person may counsel another to commit a crime. "Counsel" means to advise or recommend a particular course of conduct. "Counsel" also includes to procure, solicit or incite. To "advise or recommend" a course of conduct involves more than a mere comment, suggestion or expression of an idea. It requires an actual recommendation to do the thing suggested . . . In short, counselling is the active encouragement or active commission of the offence in question (in this case material misrepresentation).

[93] In her factum, the appellant focuses on the trial judge's references to "proposed misrepresentations" in the course of reviewing the evidence on count five. These references are no more than a description of the evidence. On the evidence, the appellant did propose various misrepresentations. The word "proposed" as used by the trial judge is a neutral word. A proposal may or may not amount to counselling as defined by the trial judge. The use of that word did not detract from the trial judge's clear instructions on the meaning of the word "counsel" and did not steer the jury toward a finding of guilt on count five.

[94] There is no merit to the appellant's argument the trial judge selectively reviewed the relevant evidence to favour the Crown or misrepresented the substance of the evidence. The plain fact is that the evidence, most of which came from the tape-recorded conversations between the appellant and Mr. Abdolvahabi, revealed a powerful case against the appellant.

(vii) Did the trial judge misdirect the jury on the meaning of the word "advice" in [s. 91(1)](https://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html) of the [IRPA](https://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html)?

[95] The trial judge drew a distinction between providing information about the operation of the IRPA, a person's rights under that Act and programs available under the Act, and giving a particularized recommendation as to the steps or representations a specific person should take or make in relation to proceedings or applications under the IRPA. Only the latter constituted advice for the purposes of s. 91: R. v. Codina No. 6, at paras. 42-48. The trial judge's instructions to the jury repeatedly reflect this distinction.

[96] The trial judge correctly limited the meaning of the word "advice" in s. 91. The distinction she drew between advice and information is consistent with the everyday meaning of the word "advice", related case law and properly limits the reach of s. 91 to accord with its underlying purpose.

(viii) Did the trial judge err in failing to put "mistake of fact" to the jury?

[97] At trial, the appellant argued she was entitled to be acquitted if the Crown did not prove she knew what she was doing was an offence under s. 91(1). In advancing this position, the appellant relied on the use of the word "knowingly" in s. 91(1). The appellant attempted to put this argument before the jury in various ways at trial.

[98] The trial judge characterized the appellant's argument as raising an alleged error in law and not any factual mistake. She effectively took this "defence" away from the jury in her closing instructions. After telling the jury ignorance of the law provided no excuse, she went on:

It does not matter whether Ms. Codina believed that she had structured things with Codina International in such a way so that she would not be guilty of any offence. Neither does it matter what Ms. Codina may or may not have believed about what, in law, constitutes the giving of advice or the receipt of consideration. "Knowledge" in this context has absolutely nothing to do with what Ms. Codina's state of knowledge or belief may have been about the law.

[99] In this court, counsel's argument focused on the submission Ms. Codina was entitled to be acquitted if she honestly believed she was conveying only information about matters relevant to the IRPA and not giving advice. In other words, Ms. Codina argued that she was entitled to have her guilt determined based on her understanding of what did or did not amount to giving advice.

[100] The meaning to be given to words in a statute is a question of law. For example, the meaning of the word "consent" in the Criminal Code is a question of law. A mistake by an accused as to the meaning of consent is no defence to a charge of assault: see R. v. Barton, [2019] S.C.J. No. 33, 2019 SCC 33, at paras. 95-97; see also R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, [2014] S.C.J. No. 3, at paras. 54-61; R. v. Zora, [2020] S.C.J. No. 14, 2020 SCC 14, at para. 114. The appellant purported to advance a mistake of law defence.

[101] Characterizing the appellant's mistake as to the meaning of the word "advise" in s. 91 as an error in law does not necessarily mean that error could not provide a defence. Parliament can and has recognized defences predicated, at least in part, on an error in law. The "colour of right" defence to theft found in s. 322 of the Criminal Code is perhaps the best example: see R. v. Dorosh, 2003 SKCA 134, [2003] S.J. No. 871, 183 C.C.C. (3d) 224 (C.A.), at paras. 14-20. However, when searching statutory language for a mistake of law-based defence, one must begin with s. 19 of the Criminal Code. That section declares ignorance of the law is not an excuse for committing an offence. It takes very clear language, e.g., "colour of right", to depart from the principle set down in s. 19. The use of the word "knowingly", a common mens rea word, in s. 91 of the IRPA does not signal Parliament's intention to create a defence based on an accused's individual understanding of the meaning of the language of the section. As observed in Barton, supra, at para. 96, an accused is not "entitled to their own law".

IV

Conclusion

[102] As indicated at the end of oral argument, the appeal is dismissed.

Appeal dismissed.

Notes

[^1] The rulings are reported at: R. v. Codina No. 1, [2017] O.J. No. 6765, 2017 ONSC 7162 (S.C.J.); R. v. Codina No. 2, [2017] O.J. No. 6766, 2017 ONSC 7236 (S.C.J.); R. v. Codina No. 3, [2017] O.J. No. 6767, 2017 ONSC 7561 (S.C.J.); R. v. Codina No. 4, [2017] O.J. No. 6768, 2017 ONSC 7315 (S.C.J.); R. v. Codina No. 5, [2017] O.J. No. 6764, 2017 ONSC 7323 (S.C.J.); R. v. Codina No. 6, [2017] O.J. No. 6814, 2017 ONSC 7648 (S.C.J.); R. v. Codina No. 7, [2018] O.J. No. 964, 2018 ONSC 1096 (S.C.J.).