A. OVERVIEW AND HISTORY OF THE PROCEEDINGS

[1] The Applicant Angelina Codina (hereinafter, Codina) brought an originating Notice of Application seeking declarations that certain legislative provisions of the Criminal Code and the Immigration and Refugee Protection Act (hereinafter IRPA) violate various provisions of the Charter of Rights. The Application is dated August 19, 2016 and it was served and filed on August 24, 2016.

[2] The only factual record filed by the Applicant, in support of the relief sought, is her own Affidavit and a number of appended documents. The Affidavit explains Codina’s interest in seeking the declarations, that is, because she is currently facing prosecution in two separate proceedings in which the legislative provisions in question play some role.

[3] The declarations sought by the Applicant are as follows:

(i) that ss. 145(3) and 524(8) of the Criminal Code violate ss. 7 and 11(d) of the Charter, because they include reverse onus clauses;

(ii) that s. 523 of the Criminal Code, as applied in the Applicant’s case, violates a number of Charter provisions, including s. 7, because of overbreadth, vagueness, and arbitrariness;

(iii) that the core provisions of Part 18 of the Criminal Code, which set out the powers and jurisdiction of a judge presiding at a preliminary inquiry, violate a number of Charter provisions, including s. 7, because of overbreadth, vagueness, and arbitrariness;

(iv) that ss. 91(1), 126, and 138(1) of IRPA, violate a number of Charter provisions, including s. 7, because of overbreadth, vagueness, and arbitrariness.

[4] The two proceedings in which the Applicant is presently charged with various offences are as follows: a preliminary inquiry that is proceeding in the Ontario Court of Justice before Caldwell J. in which Codina faces charges under ss. 91 and 126 of IRPA; a second preliminary inquiry that is proceeding in the Ontario Court of Justice before Ray J. in which Codina faces charges under s. 91 of IRPA and s. 145 of the Criminal Code.

[5] The first set of charges was laid on May 8, 2014, that is, over two and a half years ago. In brief summary, it is alleged that Codina was giving advice over a period of time to a number of individuals in relation to immigration matters, in return for payment of fees, and that she was neither a lawyer nor a member of the Immigration Consultants of Canada Regulatory Council (ICCRC). Section 91 of IRPA prohibits “directly or indirectly” representing or advising a person “for consideration” in relation to certain immigration matters, but the provision exempts lawyers, notaries, para-legals, and members of certain bodies designated in the IRPA regulations (in particular, the ICCRC). Codina was a disbarred lawyer at the relevant time and was not a member of ICCRC. Section 126 of IRPA prohibits counseling any person to “directly or indirectly misrepresent or withhold material facts” in relation to IRPA matters. Codina was charged under both ss. 91 and 126 and was released on bail on strict terms.

[6] The second set of charges was laid on September 18, 2015, that is, about a year and four months after the first set of charges. Codina was charged under s. 145 of the Criminal Code and s. 91 of IRPA. It was alleged that she was in breach of the terms of her bail as she was not in her prescribed residence in Hamilton, she was not in the company of one of her two named sureties, she was not meeting with a lawyer or attending court or complying with a court order, and she was found in an office in Toronto providing advice on immigration matters in return for consideration.

[7] The Applicant’s previous bail order was revoked, pursuant to s. 524 of the Code, and she was detained on December 8, 2015 on both sets of charges. Codina brought a bail review in this Court and it was denied by Himel J. on May 20, 2016. The Applicant then brought a two part habeas corpus Application in this Court before Goodman J. and it was denied on July 6 and 21, 2016. Finally, the Applicant brought a second bail review before Clark J. and it was denied on October 19, 2016. As a result, Codina has remained in custody while the two preliminary inquiries have proceeded before Caldwell J. and Ray J.

[8] In addition to the above bail-related proceedings, Codina has brought a number of interlocutory proceedings in this Court related to the conduct of the two preliminary inquiries. She brought an application to have Crown counsel removed from her case, which was dismissed by Campbell J. on August 5, 2016. She also brought three separate applications seeking relief in the nature of certiorari, during August and September of 2016, which are still pending before this Court. Finally, she has appealed the decisions of Goodman J. and Campbell J. to the Court of Appeal.

[9] It appears that a number of the arguments raised in the present originating Application have also been raised in the various bail-related and interlocutory proceedings summarized above, although the relief sought by the Applicant differs in all of these proceedings.

[10] I will address the various declarations of Charter violations sought by the Applicant under the headings that follow.

B. THE DECLARATIONS RELATING TO SECTION 145 OF THE CRIMINAL CODE AND SECTIONS 91, 126 AND 138 OF IRPA

[11] The declarations sought by the Applicant in relation to the provisions of the Criminal Code and IRPA under which she was arrested and charged, can be easily dismissed without addressing their merits. The Applicant attacks s. 145(3) of the Code because, she submits, it contains a reverse onus in relation to the defence of “lawful excuse.” She attacks ss. 91 and 126 of IRPA because they use the term “directly or indirectly,” which she alleges is overbroad, vague and arbitrary. She attacks s. 138 of IRPA because it gives officers under the Act the powers of a “peace officer,” which has an impact on the lawfulness of her arrest, in the Applicant’s submission.

[12] These are all matters that can be more appropriately raised before the trial judge, if Codina is committed for trial. A trial judge will have a much more complete factual record and can also determine whether the issues raised actually need to be decided. In addition, the trial judge’s rulings can be appealed at the end of the trial on a full record. It is contrary to longstanding criminal law policy to allow these kinds of issues to be raised in interlocutory proceedings, on an inadequate factual record and in circumstances that fragment and delay the conduct of criminal proceedings. In addition, I note that the attack on s. 138 was already raised before Goodman J., in the habeas corpus proceedings, and she rejected it.

[13] In R. v. Duvivier et al. (1991), 1991 CanLII 7174 (ON CA), 64 C.C.C. (3d) 20 (Ont. C.A.), the Court of Appeal reviewed the leading authorities and explained why the form of relief sought by the Applicant should generally be declined. Doherty J.A., speaking for the Court, stated the following:

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: see R. v. Mills (1986), 1986 CanLII 17 (SCC), 26 C.C.C. (3d) 481; R. v. Rahey (1987), 1987 CanLII 52 (SCC), 33 C.C.C. (3d) 289. 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 [citations omitted].

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 [citations omitted].

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.

Also see: R. v. 974649 Ontario Inc. (2001), 2001 SCC 81, 159 C.C.C. (3d) 321 at para. 79 (S.C.C.); R. v. Menard (2008), 2008 BCCA 521, 240 C.C.C. (3d) 1 at paras. 42-3 (B.C.C.A.).

[14] As in Duvivier, there is nothing in the circumstances of this case that makes immediate resort to the Superior Court for declaratory relief appropriate or necessary. The factual record before me is far inferior to the record that will be before a trial court. In addition, it is unclear at this stage whether the issues relating to “lawful excuse,” to the term “directly or indirectly,” and to the powers of arrest under IRPA will need to be decided in this case. It is also significant that there have already been delays and a plethora of interlocutory proceedings and appeals in these cases and this Court should not add to them, unless it is truly necessary. Finally, none of the Applicant’s attacks on the statutory terms found in s. 145 of the Criminal Code and in ss. 91, 126 and 138 of IRPA relate to ongoing violations of her Charter rights. They are simply issues that may or may not arise at trial, depending on how the Crown’s evidence unfolds, depending on how Codina conducts her defence, and depending on how the trial judge rules on certain issues.

[15] For all these reasons, there are no special circumstances in this case that require immediate and early resolution of these particular Charter issues, prior to committal and prior to trial. Accordingly, and as an exercise of discretion, I decline to consider the merits of the requested declarations concerning s. 145(3) of the Criminal Code and ss. 91, 126 and 138 of IRPA.

C. THE DECLARATION RELATING TO SECTION 524(8) OF THE CRIMINAL CODE

[16] The Applicant alleges that s. 524(8) of the Criminal Code violates the presumption of innocence, as guaranteed by s. 11(d) of the Charter, because it enacts a reverse onus. The Applicant was detained pursuant to this provision, after she was arrested and charged with breaching the terms of her earlier bail order and charged with committing a further s. 91 offence under IRPA.

[17] The Applicant’s argument concerning s. 11(d) of the Charter is misconceived. Section 524 is a provision relating to bail, and not to trial, and so the s. 11(d) presumption of innocence has no application. It is s.11(e) of the Charter, guaranteeing the right “not to be denied reasonable bail without just cause,” that is engaged at the stage of the bail hearing. See: R. v. Pearson (1992), 1992 CanLII 52 (SCC), 77 C.C.C. (3d) 124 at paras. 40-43 (S.C.C.). Furthermore, it has been held that s. 11(e) of the Charter is not contravened by a reverse onus that is directed narrowly at “continuing criminal behaviour.” For example, s. 515(6)(a) has been upheld on this basis. It enacts a reverse onus where the accused is alleged to have committed an indictable offence “while at large after being released in respect of another indictable offence.” Section 524(8) is an analogous provision. See: R. v. Morales (1992), 1992 CanLII 53 (SCC), 77 C.C.C. (3d) 91 at paras. 56-64 (S.C.C.); R. v. Pearson, supra at paras. 66-7.

[18] For all these reasons, the Application for a declaration in relation to s. 524(4) is dismissed.

D. THE DECLARATION RELATING TO SECTION 523 OF THE CRIMINAL CODE

[19] Section 523 of the Criminal Code is a very practical provision that is frequently utilized. It provides that an existing bail order “in respect of an offence … applies in respect of the new information,” provided the “new information” charges “the same offence or an included offence.” This means that bail proceedings do not have to be repeated every time the Crown amends counts in an Information, or files a replacement Information that charges the same offences. The Crown has relied on this provision in the proceedings before Ray J., respecting the second set of charges, by filing new Informations. The new Information on which Codina was arraigned charges the same offences as the original Information on which bail was denied. However, it varies the time frames of the offences and amends the precise terms used to describe the alleged breaches of the prior bail orders. In other words, the new Information varies the particulars alleged but it continues to charge the same offences.

[20] The Applicant makes a number of arguments that relate to the merits of the Crown’s case, and to her various defences, and she makes submissions as to how the amended particulars in the new Informations impact on these merits and on these defences. None of these issues can properly be raised in this Application for a declaration concerning the constitutionality of s. 523.

[21] The constitutional argument, as Codina frames it, is not that s. 523 violates any provision of the Charter. Rather, the argument is that the way in which s. 523 has been “applied in this case” violates various sections of the Charter and “would constitute an abuse of process.” In particular, the Applicant submits that the amended particulars were substantial and that they effectively charged a new offence and compromised her existing defences, such that she became entitled to a fresh arrest, fresh s. 10 Charter cautions, and fresh bail proceedings. The alleged denial of these rights is said to constitute an abuse of process.

[22] It is clear that these arguments do not relate to the constitutionality of s. 523. Rather, they relate to a number of alleged Charter violations in this case and to an alleged abuse of process in this case. These are all matters that can be raised at trial, on a proper factual record, if the Applicant is committed for trial and chooses to raise them. They cannot be raised in interlocutory proceedings seeking a declaration, for the reasons explained by the Court of Appeal in Duvivier and already set out above. Indeed, when the abuse of process power was finally recognized, after a long period in which there was uncertainty as to whether it existed at all in criminal cases, the power was described as “a residual discretion in a trial court judge” [emphasis added]. See: R. v. Young (1984), 1984 CanLII 2145 (ON CA), 13 C.C.C. (3d) 1 (Ont. C.A.); R. v. Jewitt (1985), 1985 CanLII 47 (SCC), 21 C.C.C. (3d) 7 (S.C.C.).

[23] This particular application for a declaration is dismissed.

E. THE DECLARATION RELATING TO PART 18 OF THE CRIMINAL CODE

[24] The Applicant wishes to raise various Charter issues at the preliminary inquiries that are presently proceeding in the Ontario Court of Justice. She has not been permitted to make these arguments due to the limited jurisdiction of a preliminary inquiry judge. She, therefore, brought the present Application seeking a declaration that the core provisions found in Part 18 of the Criminal Code, such as ss. 535, 537, 540, 541, 546 and 548, all violate the Charter prohibitions against vagueness, arbitrariness and overbreadth. The Applicant submits that these Part 18 provisions are constitutionally deficient because they fail to address or allow a preliminary inquiry judge to decide certain fundamental Charter issues that go to jurisdiction, as opposed to Charter issues that merely relate to evidentiary issues.

[25] The Applicant is correct in submitting that none of these core provisions of Part 18 address her concern, in that they do not empower a preliminary inquiry judge to decide Charter issues that go to jurisdiction. They are silent on the point. However, this does not render Part 18 unconstitutionally vague, arbitrary or overbroad. The Supreme Court of Canada has repeatedly explained the sound policy reasons for requiring Charter issues to be decided at trial, and not at a preliminary inquiry. This reasoning is not limited to Charter issues that relate only to evidentiary matters. Indeed, the root case addressing the jurisdiction of a preliminary inquiry judge in relation to Charter issues, R. v. Mills (1986), 1986 CanLII 17 (SCC), 26 C.C.C. (3d) 481 at paras. 265 and 289-292 (S.C.C.), was a case dealing with an alleged s. 11(b) Charter violation. It did not involve an evidentiary issue. The two majority judgments addressing this point stressed a number of broad reasons for limiting Charter powers at a preliminary inquiry. McIntyre J. stated:

In my view, the preliminary hearing magistrate is not therefore a court of competent jurisdiction under s. 24(1) of the Charter, and it is not for courts to assign jurisdiction to him. I might add at this stage that it would be a strange result indeed if the preliminary hearing magistrate could be said to have the jurisdiction to give a remedy, such as a stay under s. 24(1), and thus bring the proceedings to a halt before they have started and this in a process from which there is no appeal.

LaForest J. stated:

I agree with my colleagues that a preliminary hearing magistrate is not a "court of competent jurisdiction" within the meaning of s. 24(1) of the Canadian Charter of Rights and Freedoms so as to permit him to hear an application under that provision to determine whether an accused's right "to be tried within a reasonable time" guaranteed by s. 11(b) of the Charter has been violated. The task of the preliminary hearing magistrate under the Criminal Code is by the Code limited in essence to determining whether, in his opinion, the evidence presented before him is or is not sufficient to commit the accused for trial; if it is, he is to commit the accused; otherwise, he must discharge him.

I see no warrant in the Charter for extending the ambit of the specific task assigned to the magistrate by the Code. From a practical standpoint, too, I would think this would unnecessarily complicate his task, require more evidence or at least a more thorough sifting of evidence than is required at a preliminary hearing, and in any event require the magistrate to look at the issues before him in a manner different from that contemplated by the Code. This complication of his task could well lead to the kind of delays for which an application under s. 24(1) is intended to offer a cure.

[26] In R. v. Seaboyer and Gayme (1991), 1991 CanLII 76 (SCC), 66 C.C.C. (3d) 321 at paras. 110-111 (S.C.C.), the majority judgment of McLachlin J., as she then was, re-affirmed the above reasoning in Mills and stated:

As for policy, there is much to be said for leaving Charter challenges in so far as possible to the trial judge. The trial judge is likely to have a more complete picture of the evidence and its significance in the context of the case and is thus better situated to decide such questions. Moreover, permitting constitutional challenges before the preliminary court judge is likely, as in this case, to produce interlocutory appeals on narrow issues which may take years to complete, during which time the trial is delayed. All these reasons suggest constitutional questions are best left to the trial judge.

Also see: R. v. Hynes (2001), 2001 SCC 82, 159 C.C.C. (3d) 359 at paras. 43 and 49 (S.C.C.).

[27] The above line of binding authority holds that a preliminary inquiry judge cannot decide Charter issues due to the following policy reasons: first, a trial court will have a more complete evidentiary record; second, there is no appeal from an adverse ruling at a preliminary inquiry; and third, allowing Charter litigation at a preliminary inquiry would lead to unnecessary duplication of effort and delays. All of these reasons apply to Charter issues that go to jurisdiction, as well as Charter issues that relate to evidentiary rulings. Accordingly, there is no merit to the Applicant’s argument that Part 18 of the Criminal Code violates the Charter on grounds of vagueness, arbitrariness, and overbreadth because it fails to address or allow Charter arguments on issues that go to jurisdiction. This particular Application for a declaration is, therefore, dismissed.

F. CONCLUSION

[28] None of the declarations sought by the Applicant should be granted. Accordingly, the entire Application is dismissed.

M.A. Code J.

Released: November 24, 2016

CITATION: R. v. Codina, 2016 ONSC 7305

COURT FILE NO.: CR-16-00000271-00MO

DATE: 20161124

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ANGELINA CODINA

REASONS FOR JUDGMENT

M.A. Code J.

Released: November 24, 2016

R. v. Codina, 2016 ONSC 7305

Case Summary

A. OVERVIEW AND HISTORY OF THE PROCEEDINGS

B. THE DECLARATIONS RELATING TO SECTION 145 OF THE CRIMINAL CODE AND SECTIONS 91, 126 AND 138 OF IRPA

C. THE DECLARATION RELATING TO SECTION 524(8) OF THE CRIMINAL CODE

D. THE DECLARATION RELATING TO SECTION 523 OF THE CRIMINAL CODE

E. THE DECLARATION RELATING TO PART 18 OF THE CRIMINAL CODE

F. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 9

Legal Tests 2

Legislation 3