Court File and Parties

COURT FILE NO.: CR-17-90000037-00BR DATE: 20170228 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – ANGELINA MARIE CODINA Applicant

Counsel: Lynda Trefler, for the Respondent Angelina Marie Codina, acting in person

HEARD: February 16, 2017

Bail Review

DUNNET J. (Orally)

[1] The applicant is charged with five counts of representing or advising a person for consideration under s. 91(1) and one count of counselling misrepresentation under s. 126 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).

[2] She seeks her release on the grounds of a material change in circumstances – specifically, that since her bail review on December 29, 2016:

(a) The charges against her of failing to comply with her recognizance have been stayed;

(b) The Court of Appeal has set aside the decision of an application judge denying habeas corpus relief for failure to give adequate reasons; and

(c) The applicant has spent a longer period incarcerated in pre-trial custody than she would if convicted and sentenced for her alleged conduct.

[3] The applicant was charged on May 7, 2014 and released on bail on July 15, 2014. On September 17, 2015, she was arrested and charged with breaching her bail and committing further offences under the IRPA. After a revocation hearing, her bail was cancelled on November 8, 2015. She was detained on all charges on the secondary ground on December 8, 2015, following a show-cause hearing before Justice of the Peace Lena Crawford.

[4] During the hearing before the Justice of the Peace, the applicant’s mother, Evangelia Codina, gave evidence as a proposed surety. At the time, the applicant’s mother was 88 years old and living on a pension of approximately $800 a month. The Justice of the Peace concluded that she did not have confidence in the mother’s ability as a surety to exercise control over the applicant.

[5] On May 20, 2016, following a bail review hearing, Himel J. concluded, applying R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, that the applicant had not demonstrated that there was admissible new evidence or that the decision of the Justice of the Peace contained an error in law or was clearly inappropriate. Himel J. also found that the proposed plan of supervision by the Toronto Bail Program and with the applicant’s mother as a surety did not adequately address the secondary ground.

[6] On October 19, 2016, following a second bail review hearing, Clark J. found no legal error on the part of the Justice of the Peace, nor a change in circumstance worthy of setting aside the December 8, 2015 detention order. During her submissions before Clark J., the applicant had asserted that her circumstances had changed because her detention was reaching the point where she had served more time than she likely would receive by way of a sentence if she were to be convicted.

[7] Clark J. found two problems with the applicant’s argument: first, it presupposed that the applicant would be sentenced to concurrent time for her offences, although there was a strong argument to be made for consecutive sentences on at least some of the offences; second, the fact that the applicant might be detained for more time than she would receive when ultimately sentenced is but one factor for the court to take into account.

[8] The applicant had also argued before Clark J. that the Toronto Bail Program was prepared to supervise her bail, another change in circumstance. However, Clark J. heard evidence from a representative of the Toronto Bail Program who testified that the Program was able to offer supervision on the primary ground, but could offer no assurance to the court on the secondary ground.

[9] Preliminary inquiry hearings were commenced for the May 2014 and September 2015 charges, but on December 8, 2016, before receiving a decision on the preliminary inquiries, the Crown preferred a direct indictment with respect to all of the charges under the IRPA.

[10] On December 29, 2016, following another bail review hearing, Brown J. held that the applicant had failed to demonstrate any error of law or a sufficient material change in circumstances to justify setting aside the detention order of the Justice of the Peace. The applicant had argued that there had been two material changes in her circumstances: first, the direct indictment did not contain the fail to comply charges; second, Dimitrios Trikas had been proposed as a surety. Brown J. held that the new proposed plan was vague as to the precise role that Mr. Trikas would play and that these new circumstances could not have affected the balancing exercise engaged in by the Justice of the Peace.

[11] While in custody, the applicant has initiated a number of proceedings, including an application to remove Crown counsel from the record, three applications seeking prerogative relief (R. v. Codina, 2016 ONSC 7335, [2016] O.J. No. 6748) and an application seeking declarations that certain legislative provisions of the Criminal Code, R.S.C. 1985, c. C-46 and the IRPA violate various provisions of the Canadian Charter of Rights and Freedoms (R. v. Codina, 2016 ONSC 7305, [2016] O.J. No. 6866). These proceedings have been dismissed.

[12] The applicant also brought a two-part habeas corpus application, on which she argued that the border services officers who arrested her did not have the statutory authority to do so, challenged the detention order of the Justice of the Peace on jurisdictional and constitutional grounds, and raised the failure to hold a 90-day bail review and s. 11(b) of the Charter. This application was dismissed in July 2016. The applicant intends to pursue an application under s. 11(b), given the recent decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[13] On January 5, 2017, the applicant’s original charges, including the breach of bail charges, were stayed.

[14] On February 2, 2017, the Court of Appeal set aside, for failure to give adequate reasons, the July 2016 decision dismissing the applicant’s habeas corpus application (R. v. Codina, 2017 ONCA 93, [2017] O.J. No. 496). The Court of Appeal ordered a new bail review hearing to be held forthwith.

[15] At paras. 26-29 of its reasons, the court stated:

[26] The appellant also again raises the issue regarding the duration of her pre-trial custody in relation to the potential sentence she could receive if convicted. She has now spent 18 months in pre-trial custody. Over 16 months have passed since her re-arrest on charges that she breached her bail, and while the new charges she allegedly committed while on bail are proceeding, the charges that she failed to comply with her bail have been stayed.

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

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

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

[16] During her submissions on this bail review, the applicant relied on R. v. Dhalla (2007), 63 Imm. L.R. (3d) 49, [2007] O.J. No. 1362 (Sup. Ct.) and R. v. Ren, 2015 ONSC 3397, 35 Imm. L.R. (4th) 327 to suggest that the range of sentence for the immigration offences with which she is charged is less than two years. In Dhalla, Tulloch J., as he then was, upheld the imposition of a $5000 fine for a conviction under s. 126 of the IRPA. In Ren, MacDonnell J. imposed a concurrent conditional sentence of two years less a day for five convictions under s. 126 of the IRPA for 21 offences that were committed over a seven-year period.

[17] Counsel for the respondent argued that regardless of whether or not the applicant will have spent a longer period in pre-trial custody than she would if convicted, this does not represent a material change in circumstances justifying her release.

[18] Counsel relied on R. v. Smith, 2011 ONSC 4686, [2011] O.J. No. 3683, at para. 53, where Ricchetti J., in a case involving firearms and drugs, held:

Mr. Bernstein raised in his application the fact that Mr. Smith has been held in custody for the past 10 months and no trial date had yet been set. While it would be preferable that this matter had been scheduled for trial, without knowing the reasons for the delay, I am not prepared to conclude that this fact alone is a material change in circumstances at this time. These are serious offences and it will take some time for the trial to be completed. This factor alone cannot be a reason to release an accused on bail. See R. v. Stockford [2001] Q.J. No. 3834 (Que. C.A.)

[19] Counsel for the respondent asserted that the Crown will be seeking consecutive sentences in this case, given that the offences involve a number of individuals over a prolonged period of time and that one of the offences was committed while the applicant was on bail.

[20] Counsel for the respondent also asserted that a relatively longer sentence is justified for the applicant as she has a Canadian criminal record dating from 1998, when she was convicted of fraud and received a six-month custodial sentence, and a criminal record in the United States, where she was convicted of grand larceny and scheme to defraud and received a custodial sentence of five to fifteen years. After serving five years, she was paroled and deported to Canada.

[21] Counsel for the respondent submitted that the time that the applicant has spent in pre-trial custody does not approach the time that would likely be imposed following conviction.

[22] The respondent relied on the following cases:

• In R. v. Mendez, [2004] O.J. No. 5733, 2004 CarswellOnt 6146 (Sup. Ct.), Dambrot J. sentenced an immigration consultant to nine months’ imprisonment for counselling the making of false statements in a claim for refugee status, contrary to s. 94.5 of the Immigration Act, R.S.C. 1985, c. I-2. The offender was on bail at the time of the offence.
• In R. v. Ng, 2008 BCCA 535, 241 C.C.C. (3d) 340, the British Columbia Court of Appeal upheld two concurrent nine-month custodial sentences for immigration offences, including a conviction under s. 126 of the IRPA, and increased the sentences to be served for three prostitution-related offences, which were ordered to be served consecutively to the sentences for the immigration offences.
• In R. v. Ellis (July 29, 2010), Toronto (Ont. Sup. Ct.), the accused was a member of the Immigration and Refugee Board and in this role determined the validity of refugee claims. He was found guilty of breach of trust contrary to s. 122 of the Criminal Code and agreeing to accept a benefit contrary to s. 129(1)(a) of the IRPA and was sentenced to 18 months in prison.
• In R. v. El-Akhal (November 30, 2011), Brampton 11-106 (Ont. Sup. Ct.), the 64-year-old offender assisted, over a six-year period, a significant number of individuals in processing applications for residency status in Canada and defrauded the Canadian government of more than $500,000. Blacklock J. accepted the joint recommendation of counsel to forfeiture of the sum of $155,000, three-year sentences on two counts and a one-year sentence on the remaining count, to run concurrently.
• In R. v. Wang (December 4, 2013), Brampton 13-5808, 13-4096, 13-4259 (Ont. Ct. J.), the accused was convicted under s. 122 of the IRPA as an integral player in a scheme to create and use fraudulent Chinese passports to enable participants in the scheme to extract fees from Chinese students seeking entry into Canadian educational institutions. She received a two-year concurrent sentence.
• In R. v. Wang, 2016 BCCA 390, [2016] B.C.J. No. 2036, the accused, over a period of eight years, was the mastermind of a sophisticated immigration fraud business that involved 1200 clients who paid $10 million. He created false passport entries and continued to provide immigration services while on bail. He did not report any income earned from the business and evaded more than $700,000 in federal income tax. The sentencing judge found that the range for immigration fraud was between 15 months’ and four-and-one-half years’ imprisonment. Of relevance to this case is the fact that the sentencing judge imposed a 12-month concurrent sentence for the s. 91(1) offence. Further, the Court of Appeal held that the sentencing judge made no error in imposing a consecutive sentence for an offence under the Income Tax Act, 1985 R.S.C., c. 1 (5th Supp.).
• In R. v. Lazaro, 2016 ONCJ 676, [2016] O.J. No. 6036, an unlicensed immigration consultant was sentenced to 12 months’ imprisonment for seven counts of counselling a misrepresentation contrary to s. 126 of the IRPA, committed over a span of five years.
• In R. v. Zaher, 2017 ONSC 582, [2017] O.J. No. 396, Pomerance J. sentenced a 54-year-old immigration lawyer convicted under s. 137 of the Criminal Code and ss. 126 and 127 (a) of the IRPA to 12 months’ imprisonment, concurrent on each count.

[23] Counsel for the respondent did not provide the cases cited above to the applicant or the court until 3:45 p.m. during the respondent’s submissions and the applicant correctly observed that she had little or no time to review the cases and respond.

[24] In my view, the case law relied on by the respondent fails to demonstrate that it is likely that the applicant will, if convicted, receive consecutive sentences for the offences with which she is charged.

[25] On February 23, 2017, the applicant delivered written submissions resulting from her review of the cases relied on by the respondent at the bail review hearing, as well as cases cited therein, in support of her submission that she has spent a longer period incarcerated in pre-trial custody than she would if convicted and sentenced. The additional cases upon which the applicant relies include the following:

• In R. v. Lin (2005), 252 Nfld. & P.E.I.R. 196, 67 W.C.B. (2d) 686 (Prov. Ct.), the accused was charged with five offences of counselling and assisting others to enter Canada with false passports, contrary to s. 126 of the IRPA. He received a concurrent sentence of nine months on each count, after being given credit for three months for pre-sentence custody.
• In R. v. Ajayi, 2013 ONCJ 747, [2013] O.J. 6163, the accused attempted to bring a foreign national over the border with someone else’s passport and lied to the authorities about the person’s true identity. The court imposed a nine-month conditional sentence for convictions under ss. 126 and 122(1) (c) of the IRPA, to be served concurrently.
• In R. c. Niang, 2014 QCCQ 3270, [2014] J.Q. No. 4595, the accused was convicted of 19 counts under s. 126 of the IRPA for organizing feigned marriages for foreign nationals in order to help them to obtain permanent resident status. He received concurrent conditional sentences of two years less a day.
• In R. v. Large, 2015 BCSC 1238, [2105] B.C.J. No. 1513, the accused was sentenced to a 15-month conditional sentence for one offence under s. 126 of the IRPA for counselling foreign nationals to mislead customs officers or withhold facts about coming to Canada to work as au pairs. The counselling took place over four years and involved more than 100 instances of counselling misrepresentation.
• In R. v. Al-Awaid, 2015 NSPC 52, 364 N.S.R. (2d) 350, an immigration consultant who operated a business that assisted clients to circumvent their residency requirements received a conditional sentence of two years less a day on eight charges under s. 126 of the IRPA, to be served concurrently.

[26] On this bail review, I have taken into consideration the following new factors: the breach of bail conditions have been stayed; the applicant has spent a further seven months in custody since the dismissal of the habeas corpus application, which has been set aside for failure to give adequate reasons; the applicant has now spent more than 18 months in pre-trial custody. Assuming that she will receive enhanced credit for time served – and there is nothing in the record to suggest otherwise – the duration of time that the applicant has spent in pre-trial custody could well exceed her ultimate sentence if convicted.

[27] Accordingly, I am of the opinion that the applicant’s continued detention is no longer justified. These changes in the circumstances of the case are relevant and material (St-Cloud, at para. 121).

[28] The applicant seeks a release on her own recognizance to live with her mother in Hamilton. Given the earlier findings that the sureties proposed are unsuitable and the fact that she is a 59-year-old woman, I release the applicant on a recognizance of $1000 with no deposit and no sureties. She is to live with her mother, Evangelia Codina, at 7 Freeland Court in Hamilton.

[29] The applicant is to report in person to the Toronto Bail Program at Old City Hall in Toronto forthwith upon release and thereafter twice per week between the hours of 8:00 a.m. and 4:00 p.m. as directed by the Toronto Bail Program. She shall be amenable to the supervision of the Program. If the Toronto Bail Program deems that it is more appropriate or convenient for the applicant to report in Hamilton, the reporting condition may be transferred to the Hamilton Bail Program.

[30] In addition, the applicant will be subject to the following conditions:

(a) keep the peace and be of good behavior;

(b) remain within the Province of Ontario;

(c) not apply for any travel documents;

(d) not counsel, advise, or represent any person for immigration purposes or immigration issues;

(e) not access a computer; and

(f) abstain from communicating with Jalil Chitizadeh, Sara Chitizadeh, Mahjub Ahmadi, Sohaila Ahmadi, Nikolaos Mouzos, Elisavet Mourtzis, Ionna Mourtzis, Farhad Abdolvahabi, Sarashadat Hosseini, Behzad Mahmoudi and Kulwant Singh Dhaliwal.

Dunnet J. Released: February 28, 2017