Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210513 DOCKET: C69153

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Angelina Codina Appellant

Counsel: Angelina Codina, acting in person Vanita Goela, for the respondent

Heard: in writing

On appeal from the judgment of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated February 1, 2021, with reasons reported at 2021 ONSC 765.

Reasons for Decision

[1] The appellant appeals the dismissal of her application for a writ of habeas corpus, alleging that she has been unlawfully detained and should be released.

[2] There are two stages in determining whether a habeas corpus application should be granted. First, the court must determine whether reasonable and probable grounds exist for the complaint. Second, if the court is satisfied that the grounds exist, then the application is heard on its merits: R. v. Olson, [1989] 1 S.C.R. 296, at p. 298.

[3] In his reasons dated February 1, 2021, for dismissing her habeas corpus application, the application judge concluded that the appellant did not satisfy the first limb of the test: there are no reasonable grounds for the complaint that the applicant is unlawfully detained.

[4] Pursuant to the endorsement of MacPherson J.A. of March 10, 2021, this appeal proceeded in writing. The appellant filed both a factum and a reply factum.

[5] The appellant argues that the application judge’s conclusion that the first limb of the test was not satisfied is tainted by legal error. For the following reasons, we reject that argument and dismiss this appeal.

Background

[6] Some background is necessary to provide context for this appeal.

[7] A jury convicted the appellant 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. The reasons for sentence are reported at R. v. Codina, 2018 ONSC 2180.

[8] The appellant appealed conviction and sentence. This court heard and dismissed her sentence appeal in December 2019: R. v. Codina, 2019 ONCA 986. The conviction appeal was heard on October 26, 2020. The appellant raised 11 grounds of appeal, including that the Canadian Border Services Agency did not have jurisdiction to arrest her. Her conviction appeal was dismissed from the bench, for reasons which followed in R. v. Codina, 2020 ONCA 848 (“the Conviction Appeal”).

[9] After this court dismissed the Conviction Appeal, she filed her habeas corpus application with the Superior Court on December 17, 2020. On January 7, 2021, this court received the appellant’s notice of motion to re-open the Conviction Appeal arguing, among other grounds, that there had been a change in the law.

[10] The appellant’s habeas corpus application was dismissed from the bench on January 22, 2021, and the reasons were released on February 1, 2021: R. v. Codina, 2021 ONSC 765. The application judge wrote:

Nearly all of the grounds outlined by the applicant were determined at trial before Molloy J. and at the Court of Appeal. On both occasions, the applicant’s complaints were dismissed. For example, the claims that the Canadian Border Services Agency lacked jurisdiction to arrest the applicant was discussed and dealt with at paras. 47-50 of the Court of Appeal’s decision; the deficiencies in the indictment at paras. 69-73.

The applicant’s latest claim, regarding a change in the law, is a matter that she seeks to raise before the Court of Appeal for Ontario. If the applicant is successful in persuading the court to re-open the appeal, it would be open to her to apply for bail. If unsuccessful, then the question of whether her detention is unlawful on that basis is resolved.

[11] The appellant brought a motion to re-open her appeal in this court in January 2021. On February 3, 2021, this court received the appellant’s motion for bail pending determination of the motion to re-open her appeal.

[12] On February 24, 2021, this court dismissed the appellant’s motion to re-open the Conviction Appeal and her sentence appeal and accordingly dismissed the application for bail as moot: R. v. Codina, 2021 ONCA 109. The court concluded that all the appellant’s points, save one, were dealt with in the court’s comprehensive reasons for dismissing the Conviction Appeal and there was no basis to assert a miscarriage of justice. On the motion, the appellant argued that a new independent federal body has been created to regulate and govern immigration consultants, and because of the creation of this new regulatory body, s. 91(1) of the IRPA is null and void. As to this new argument, the court wrote, at para. 6:

The applicant also asserts that the appeals should be reopened because a new independent federal body has been created to regulate and govern immigration consultants. That, however, is irrelevant to the charges against the applicant, who in any event was never an authorized immigration consultant.

[13] The appellant has sought leave to appeal her Conviction Appeal and sentence appeal to the Supreme Court of Canada and bail pending that appeal. Her bail application has been adjourned, pending the decision on her application for leave to appeal to the Supreme Court of Canada.

Analysis

[14] The appellant advances what we would characterize as two main arguments. The first is that the application judge erred in his approach by considering determinations, or anticipated determinations, in her criminal proceedings in determining her habeas application. The second is that the application judge’s reasons were insufficient.

(1) Consideration of determinations in her criminal proceedings

[15] We understand the appellant to argue that the purpose of the criminal proceedings against her – her Conviction Appeal, her motion to re-open, and her bail application – on the one hand, and her habeas application, on the other, differs, so that the determinations of the trial judge and this court’s determinations or anticipated determinations on the Conviction Appeal, the motion to re-open and bail application were irrelevant, and should have had no bearing on her habeas application. She argues that the application judge erred in relying on those determinations and anticipated determinations.

[16] By way of example, the appellant submits that the application judge should himself have addressed her change in law argument and not left it to this court to determine on her motion to re-open. In brief, that argument, as now framed, is that: as a result of the enactment of the College of Immigration and Citizenship Consultants Act, S.C. 2019, c. 29, s. 292, in 2019, s. 91(9) of the IRPA is deemed to have been repealed; because she was convicted under s. 91(9), it is a change in law in her favour and, as she was still “in the judicial system” at the time of the change, she is entitled to the benefit of that change; and, as s. 91(9) is deemed to have been repealed, her detention as a result of being convicted under that section is unlawful. We understand her to argue that since the application judge erred by failing to address her change in law argument on the habeas application, the court should consider the change in law issue afresh on this appeal, and is not bound by the determination of the court on the change of law issue on the motion to re-open. She says that this court did not fully address her change in law arguments on the motion to re-open.

[17] On the habeas application, the appellant filed an affidavit and a reply factum in which she briefly addresses the change of law issue. In these materials, she frames her argument in a manner similar to on her motion to re-open.

[18] The appellant devoted approximately three paragraphs of her hand-written factum on the motion to re-open to her change of law argument and this court addressed the argument she made in its reasons on her motion to re-open. On this appeal, the appellant frames her change of law argument much more broadly than she did in her affidavit and reply factum on the habeas application and in her factum before this court on her motion re-open.

[19] In our view, the application judge did not err in his approach. The appellant was seeking to re-litigate issues that were comprehensively addressed by the trial judge and this court or to litigate the key basis for the motion to re-open that was pending in this court.

(2) Sufficiency of reasons

[20] The appellant argues that the application judge’s reasons were insufficient because he did not address what she says was her argument that the trial court lacked jurisdiction to try the offences because Public Prosecution Services Canada (“PPSC”), which conducted the prosecution in this case, does not have statutory authority to proceed by way of direct indictment. She argues only the Department of Justice of Canada may do so and the PPSC is not part of the Department of Justice. The application judge’s reliance on this court’s reasons on the Conviction Appeal was insufficient as this court did not address this jurisdictional argument in the portion of its reasons about the alleged deficiencies in the indictment.

[21] The appellant makes this jurisdictional argument without reference to any authorities or supporting materials.

[22] The application judge provided sufficient reasons. He outlined the applicable test for a habeas application and explained why the application was dismissed. Reasons need not address every argument advanced: R. v. R.E.M., [2008] 3 S.C.R. 3, at paras. 35, 57. We are satisfied that his reasons addressed the critical issues and have provided the appellant with the grounds for meaningful review.

Disposition

[23] Accordingly, the appeal is dismissed.

“Alexandra Hoy J.A.”

“C.W. Hourigan J.A.”

“B. Zarnett J.A.”