Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210602 DOCKET: M52317 (C65015)

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen Respondent

and

Angelina Marie Codina Applicant

Counsel: Martin Kerbel, for the applicant Vanita Goela, for the respondent

Heard: in writing

Endorsement

Overview

[1] Angelina Codina has applied for leave to appeal three decisions of this court to the Supreme Court of Canada (the “Leave to Appeal Application”). In this application in writing, she seeks bail pending her Leave to Appeal Application.

[2] Ms. Codina has not met her burden of persuading me that her release pending the determination of her Leave to Appeal Application is in the public interest. The application for bail pending leave to appeal to the Supreme Court of Canada is therefore dismissed.

Background & Material Facts

[3] Ms. Codina is a trained lawyer who was disbarred in Ontario after being convicted of defrauding the Ontario Legal Aid Plan. She was subsequently convicted in New York State of grand larceny and a fraud charge, where she served a 5-year sentence before being deported to Canada.

[4] While in Canada, Ms. Codina owned and administered “Codina International”, an immigration consulting corporation. As the result of events that occurred between late 2011 and early 2014 relating to Codina International, Ms. Codina was charged with offences contrary to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).

[5] On November 22, 2017, after a trial by jury, Ms. Codina was convicted of four counts of providing advice to persons on immigration matters without being authorized to do so, contrary to s. 91(1) of IRPA. She was also convicted on one count of knowingly counselling a person to make a misrepresentation in an immigration application, contrary to IRPA s. 126.

[6] On May 29, 2018, Ms. Codina received a sentence of seven years’ imprisonment, which was reduced to five years because of pre-sentence custody. She was also ordered to pay $30,200 in restitution. In sentencing Ms. Codina, the sentencing judge concluded that she is someone who preys on vulnerable people and who represents “a threat to the community because she is ungovernable”.

[7] Ms. Codina appealed both her convictions and sentence to this court. To minimize delay, the appeals were bifurcated after a case management conference. Ms. Codina’s sentence appeal was dismissed on December 16, 2019. Her conviction appeal was dismissed from the bench on October 26, 2020 for reasons to follow, which were released on December 30, 2020.

[8] Ms. Codina did not seek leave to appeal either decision to the Supreme Court of Canada in a timely way. Instead, she filed a habeas corpus application in the Superior Court of Justice and a motion before this court to re-open her conviction and sentence appeals. The habeas corpus application was dismissed from the bench on January 22, 2021, with reasons released on February 1, 2021. Recently, on May 13, 2021, this court dismissed an appeal in writing from that dismissal. By that time, Ms. Codina’s motion to re-open her appeals, which was also heard in writing, had already been denied on February 24, 2021.

[9] The Leave to Appeal Application that Ms. Codina now brings to the Supreme Court of Canada advances grounds raised in a notice of application for leave to appeal and additional grounds identified in a supplementary notice of application for leave to appeal. In her Leave to Appeal Application, Ms. Codina seeks leave to appeal the decisions rendered by this court in her conviction appeal, her sentence appeal, and her motion to re-open those appeals. The Supreme Court of Canada has yet to decide whether to assign a file number to the Leave to Appeal Application.

Ms. Codina’s Position

[10] Ms. Codina now applies, in writing, for release pending the disposition of her Leave to Appeal Application. This application was initially set to be heard in writing on April 7, 2021 but was adjourned at Ms. Codina’s request so that she could retain counsel and file additional material.

[11] In support of this application, which is now ready to be heard, Ms. Codina argues that the many grounds of appeal she proposes in her Leave to Appeal Application are substantial and meritorious. Those grounds of appeal include challenges that were rejected by this court, most notably:

• challenges to the constitutionality of IRPA, ss. 91(1) and 126,
• challenges to the validity of the indictment,
• Charter and jurisdictional challenges related to her arrest and charging, and
• challenges to the trial judge’s jury charge.

[12] Ms. Codina also argues that, during her conviction appeal, this court misapprehended arguments she made challenging the indictment. She further submits that, during her motion to re-open, this court misapprehended her argument that IRPA s. 91(1) has been “arrogated or assumed” by s. 77(c) of the College of Immigration and Citizenship Consultants Act, S.C. 2019, c. 29, s. 292 (“CICCA”), which came into force in June 2019. She argues that CICCA necessarily rendered IRPA s. 91(1) inoperative, and that this has made unauthorized representation a regulatory, non-criminal matter. She argues that she should have the benefit of this change in the law, and that this change in the law enhances her Leave to Appeal Application.

[13] Of note, Ms. Codina also argues that the decision to bifurcate her conviction and sentence appeals deprived this court of information it required to adjudicate the sentence appeal. This argument is being raised for the first time in the Leave to Appeal Application.

[14] In further support of this application, Ms. Codina relies on her history of surrendering for court hearings and argues that, at 63 years of age, she is at heightened risk of COVID-19 infection while incarcerated, increasing the public interest in her release. She relies, as well, on proof that she would be employed while on release pending her Leave to Appeal Application.

The Crown’s Position

[15] The Crown opposes Ms. Codina’s application for bail pending her Leave to Appeal Application. Although conceding that Ms. Codina would likely surrender herself into custody as required, the Crown argues that she has not met her burden of establishing on the balance of probabilities that her detention is not necessary in the public interest. The Crown submits that Ms. Codina’s grounds of appeal are frivolous, that she poses a residual risk to public safety, and that, in the circumstances, she has not shown that the public interest in enforcement outweighs the public interest in reviewability.

Analysis

[16] I would dismiss Ms. Codina’s application for bail pending her Leave to Appeal Application.

[17] I do so even though I am not prepared to join the Crown in characterizing Ms. Codina’s proposed grounds of appeal as “frivolous.” As the Supreme Court of Canada recently emphasized, the “not frivolous” standard is “a very low bar”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20.

[18] However, in assessing the reviewability interest, the strength of the appeal plays a central role. Although the initial “not frivolous” hurdle is met in this case, I cannot say that Ms. Codina’s proposed grounds of appeal “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: Oland, at para. 44 (emphasis added). This decreases the weight of the public interest in reviewability.

[19] I also share the Crown’s conclusion that there is a residual public safety concern. Ms. Codina is no longer presumed to be innocent of the offences that are the subject of her Leave to Appeal Application. Those offences are serious and Ms. Codina was found, on impressive evidence, to have committed those offences against highly vulnerable individuals. There is foundation on the record for the sentencing judge’s conclusion that Ms. Codina preys on the vulnerable and is ungovernable. The residual risk she poses increases the weight of the public interest in enforcement.

[20] Even leaving aside the residual risk to public safety, the seriousness of the offences and the significant sentence imposed support the public interest in enforcement.

[21] Importantly, Ms. Codina has no further right of appeal. She has had her appeals, as well as a habeas corpus application and a motion for reconsideration. I have already noted that the grounds of appeal she proposes in her Leave to Appeal Application do not appear strong. I would add that the operation of the reviewability principle in this case is contingent upon the Supreme Court of Canada granting Ms. Codina leave to appeal, something which that court does only sparingly. At this juncture of the proceedings, “the principle that trial judgments should be enforced is very much in play” and should be given “paramountcy” in this case: R. v. Drabinsky, 2011 ONCA 647, 276 C.C.C. (3d) 277, at paras. 11 and 13.

[22] I have considered the risk that Ms. Codina could contract COVID-19 while incarcerated. Ms. Codina has not established with evidence that her risk of infection is pronounced enough to materially influence the outcome of this application.

[23] In the circumstances, Ms. Codina has failed to satisfy me on the balance of probabilities that public confidence in the administration of justice would not suffer if she were released pending her Leave to Appeal Application instead of continuing to serve her sentence.

Conclusion

[24] Ms. Codina’s application for release pending leave to appeal to the Supreme Court of Canada is dismissed.

“David M. Paciocco J.A.”