R. v. Codina #1, 2017 ONSC 7162

CITATION: R. v. Codina #1, 2017 ONSC 7162

COURT FILE NO.: 16-9-761

DATE: 20171222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ANGELINA MARIE CODINA

Defendant/Applicant

Lynda Trefler and Vanita Goela, for the Crown

In person

HEARD: September 11, 12, and 13, 2017

MOLLOY J.:

REASONS FOR DECISION #1

(Jurisdictional and Constitutional Challenges to ss. 91, 126, and 138(1) of the IRPA)

A. BACKGROUND

1Angelina Codina is not licensed to practice law in the Province of Ontario, nor is she registered as an Immigration Consultant by the licensing body created under the Immigration and Refugee Protection Act (“IRPA”).¹ Under s. 91(1) of the IRPA, only persons with such accreditation are permitted to provide advice or representation, for consideration, in connection with an IRPA proceeding or application. Ms. Codina was charged with five counts of breaching s. 91(1). In addition, she was charged with one count of breaching s. 126 of the IRPA by inducing, counselling, aiding or abetting a client to misrepresent or withhold material facts that could have induced an error in the administration of the IRPA.

2Initially, Ms. Codina was arrested by Canada Border Services Agency (“CBSA”) officers on May 7, 2014 and charged with four counts of breaching s. 91(1) and one count of breaching s. 126. She was released on bail with conditions that included house arrest (with exceptions) and that she not provide advice or representation to any person in respect of any immigration matters.

3On September 17, 2015, two CBSA officers found Ms. Codina in a Toronto business office in circumstances in which they believed she was in breach of two conditions of her recognizance, specifically that she was: (1) outside her residence without lawful excuse; and (2) providing immigration advice to a client, Kulwant Singh Dhaliwal. They arrested her for breach of her recognizance.

4An information was laid charging her with the two breaches of recognizance pursuant to s. 145 of the Criminal Code, as well as a separate count of a further breach of s. 91(1) of the IRPA by providing immigration advice for consideration to Mr. Dhaliwal. A search warrant was obtained to seize relevant files from her business offices. On the execution of that warrant, computers and cell phones were seized. A request for a warrant to search the contents of those electronic devices was refused.

5Ms. Codina was denied bail. She commenced several bail review and habeus corpus applications, all of which were unsuccessful. However, on Ms. Codina’s appeal to the Court of Appeal from the decision of Goodman J. dismissing her habeus corpus application, the dismissal was quashed due to insufficiency of reasons and the Court of Appeal ordered that a new bail review hearing be held forthwith.² That hearing proceeded before Dunnett J. on February 16, 2017 and resulted in Ms. Codina being released on her own recognizance, with terms, under the supervision of the Toronto Bail Program.

6Meanwhile, the preliminary inquiry on the first set of charges had commenced in the Ontario Court of Justice on November 23, 2015 and the preliminary inquiry on the second set of charges had commenced on September 2, 2016. Both proceedings were fraught with difficulty. Ms. Codina raised numerous procedural, jurisdictional and constitutional issues and commenced several appeals from decisions that went against her. She has been represented by a number of different counsel throughout, but eventually elected to represent herself. Considerable evidence was adduced in both preliminary inquiries. However, on December 13, 2016, before a decision was made in either inquiry, the Crown preferred a direct indictment. The Crown stayed the two charges based on the breach of recognizance. The new indictment put before this court consisted of the original five charges under the IRPA (four counts under s. 91(1) and one count under s. 126) and one further count of breaching s. 91(1) of the IRPA (the count involving Mr. Dhaliwal).

7While the preliminary inquiry was still ongoing, Ms. Codina applied in the Superior Court for an order removing senior Crown counsel from the case, based on allegations of bias and abuse of process. That application was dismissed by Campbell J. by an endorsement dated August 5, 2016. Ms. Codina brought a similar application on the same grounds before Akhtar J. on June 23, 2017, which he dismissed for oral reasons provided that day.

8The charges in the preferred indictment before this Court cover a range of different dates from September 2011 to September 2015. Ms. Codina brought an application under s. 11(b) of the Charter to have the charges against her stayed for delay. Akhtar J. dismissed that application on July 5, 2017.³ Ms. Codina’s Rowbotham application for the appointment of state-funded counsel to represent her was dismissed by Campbell J. for oral reasons delivered on June 5, 2017.

9The matter was scheduled for trial before a jury to commence on September 11, 2017. Three weeks were allocated for pre-trial motions. On July 25, 2017, McMahon J. directed that all applications were to be filed and perfected by August 15 and any responding materials filed by September 5.

10Ms. Codina filed nine pre-trial applications and the Crown filed four, as follows:

Defence Application 1: validity of the indictment preferred under s. 577 of the Criminal Code

Defence Application 2: constitutional challenge to s. 577 of the Criminal Code

Defence Application 3: jurisdictional and constitutional challenge to s. 138(1) of the IRPA

Defence Application 4: constitutional challenge to numerous other provisions of the Criminal Code and the IRPA: ss. 145(3), 523, 524, Part 18 (535, 537, 541, 542, 548) of the Criminal Code; ss. 91, 126, and 138(1) of IRPA

Defence Application 5: legality of arrests (ss. 7, 8, 9, and 24 of the Charter)

Defence Application 6: legality of search and seizure (ss. 7, 8, and 24 of the Charter)

Defence Application 7: breach of the Crown’s disclosure obligations (s. 7 of the Charter)

Defence Application 8: abuse of process by the Crown (ss. 7 and 24 of the Charter)

Defence Application 9: sufficiency of the indictment

Crown Application 1: admissibility of the transcript of the evidence of Ms. Codina’s sister taken on the bail review application

Crown Application 2: admissibility of the transcript of the evidence of Mr. Dhaliwal taken over the period of six days at the preliminary hearing

Crown Application 3: admissibility of audio recordings made by two complainants of their discussions with Ms. Codina

Crown Application 4: admissibility of similar fact evidence on a count-to-count basis.

11I ruled that Ms. Codina’s abuse of process argument was appropriately dealt with at the conclusion of the trial. If she was acquitted of the charges against her the issues would likely be moot. If she was convicted, I would have the advantage of knowing the extent of her jeopardy, as well as a full record.

12After hearing argument on the Crown’s motion to admit at trial the evidence of Renee Codina given at a bail review application, it was apparent that only a small portion of her evidence was being tendered and that the facts underlying that evidence were not challenged by Ms. Codina. I therefore urged the parties to attempt to resolve this through an agreed statement of fact, which they were able to do. Accordingly, that application was withdrawn by the Crown. In any event, this motion became moot due to my ruling as to the inadmissibility of the transcript in relation to the Dhaliwal charge.

13The Crown agreed that its similar fact evidence motion would appropriately be dealt with at the conclusion of the evidence and as part of the pre-charge conference with respect to the instructions to be given to the jury on how to deal with the various counts on the indictment. At that point, I would have a clear picture of the evidence on each count. Ultimately, the Crown withdrew that motion.

14Prior to the commencement of evidence I rendered oral decisions on the remaining matters. Apart from matters that were deferred until the end of the trial, I dismissed all of Ms. Codina’s pre-trial applications. I also dismissed the Crown’s motion to introduce the transcript of Mr. Dhaliwal’s testimony at the preliminary hearing, as a result of which that count on the indictment was stayed at the request of the Crown. I granted the Crown’s motion to introduce into evidence the audio recordings made by two complainants of discussions they had with Ms. Codina. I advised at the time that written reasons would follow. Those reasons are provided as follows:

• This decision (R. v. Codina #1) deals with Ms. Codina’s arguments with respect to the jurisdiction of the CBSA to prosecute her for these offences and the constitutional validity of ss. 138(1) (Application 3), as well as her constitutional arguments with respect to ss. 91 and 126 of IRPA (Part of Application 4).

• R. v. Codina #2, 2017 ONSC 7236, deals with defence Applications 1 and 2, which relate to s. 577 of the Criminal Code and the validity of the preferred indictment under that section. Also included in that decision are my reasons for dismissing Ms. Codina’s Application 9 with respect to the alleged inadequacies in the indictment.

• R. v. Codina #3, 2017 ONSC 7561 deals with defence Applications 5 and 6 with respect to the s. 7, 8, and 9 Charter challenges to Ms. Codina’s arrest and the search and seizure of her office and files. Those reasons also deal with some aspects of Ms. Codina’s argument with respect to Crown disclosure. However, for the most part, her issues with respect to disclosure go hand-in-hand with her abuse of process argument and are deferred to be dealt with at the end of the trial.

• R. v. Codina #4, 2017 ONSC 7315 addresses the constitutional challenge to the Criminal Code provisions referenced in Ms. Codina’s Application 4.

• R. v. Codina #5, 2017 ONSC 7323 addresses the Crown’s motions to introduce the audio recordings made by complainants and the preliminary hearing transcript of the complainant Dhaliwal.

• R. v. Codina #6, 2017 ONSC 7648 deals with the interpretation of s. 91(1) and 126 of the IRPA, which was raised in part in Ms. Codina’s Application 1 (the validity of those counts), as well as in her Charter arguments with respect to her arrest (see Codina #3 at paras. 10-11). In addition, Codina #6 addresses aspects of my final charge to the jury and my reasons for dismissing Ms. Codina’s motion for a directed verdict.

15Jury selection commenced on October 5, 2017. The trial began on October 10 and continued until the jury’s verdict on November 22, 2017. At the close of the Crown’s case, Ms. Codina brought a motion for a directed verdict of acquittal. I dismissed that motion: R. v. Codina #6. Ms. Codina called evidence, but did not testify in her own defence. The jury found Ms. Codina guilty on all five counts.

B. JURISDICTION OF THE CBSA TO PROSECUTE

16The jurisdiction of the CBSA to arrest, detain and lay charges for offences under the IRPA, if it exists, can only be rooted in s. 138(1) of that Act, which states:

138 (1) An officer, if so authorized, has the authority and powers of a peace officer — including those set out in sections 487 to 492.2 of the Criminal Code — to enforce this Act, including any of its provisions with respect to the arrest, detention or removal from Canada of any person.

17The question that arises is whether CBSA officers are “authorized” to prosecute offences within the meaning of s. 138(1). Ms. Codina contends that CBSA officers are only authorized to enforce the administration of the Act as against persons seeking to enter Canada or who are alleged to be here illegally. In her submission, the word “authorization” referred to in this section must be interpreted as a specific authorization under some other provision of the IRPA. Her position is that the charges laid against her by the CBSA could only have been laid by the Royal Canadian Mounted Police (“R.C.M.P.”). I do not agree.

18The path by which the CBSA is “authorized” under s. 138(1) is somewhat labyrinthine, but nevertheless, once untangled, it supports the Crown’s position that the CBSA had jurisdiction to arrest and charge Ms. Codina for the charges now before the Court.

19The starting point is s. 6 of the IRPA, which gives the Minister the power to designate persons as officers. It states:

6. (1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated.

7. (2) Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing, without proof of the authenticity of the authorization.

20Responsibilities under the IRPA are divided between two government Ministers. Although the Minister of Immigration and Citizenship is generally responsible for the administration of the IRPA (s. 4(1)), the Minister of Public Safety and Preparedness is responsible for its administration “as it relates to the enforcement of [the] Act, including arrest, detention and removal.”⁴

21The CBSA was created in 2005 by the Canada Border Services Agency Act.⁵ Under that legislation, the CBSA is given the responsibility of “supporting the administration or enforcement, or both, as the case may be, of the program legislation.”⁶ “Program legislation” is a defined term and includes the IRPA.⁷ The Minister of Public Safety and Preparedness is responsible for the CBSA, and is authorized under the Act to delegate “any power, duty or function conferred on the Minister under this Act or under the program legislation.”⁸

22The CBSA Act also provides for the appointment of a President of the CBSA who, under the direction of the Minister, is given the responsibility for the control and management of the CBSA and is specifically given the authority to “exercise any power that the Minister has to designate officers under ss. 6(1) of the IRPA.”⁹

23On March 25, 2011, Vic Toews (then the Minister for Public Safety and Emergency Preparedness) signed a document expressly delegating, inter alia, his power to authorize officers as peace officers to the President of the CBSA.

24On September 30, 2011, Luc Portelance, the President of the CBSA signed a document authorizing border service officers and CBSA investigators, inter alia, as peace officers under s. 138(1) of the CBSA. That authorization remained in force until after the time of the arrests of Ms. Codina and the obtaining of a search warrant for her premises. The officers who carried out her arrest, detention and search were designated with those powers by the President pursuant to this Authorization.¹⁰

25In addition, the Crown filed a Letter of Intent signed on March 1, 2007 between the CBSA and the R.C.M.P. defining the areas of responsibility each would have with respect to criminal investigations and the laying of charges under IRPA.¹¹ Although styled as a “Letter of Intent,” this is not an “agreement to agree.” There is no contemplation of there being a more formalized agreement in the future. Rather, it is an actual agreement between the two law enforcement agencies as to how to work cooperatively and to designate areas of responsibility for IRPA investigations. Essentially, certain matters were designated as being the responsibility of the R.C.M.P. (such as, offences involving organized crime, national security, trafficking in people, high security risks, and on native reserves or requiring specialized police techniques such as electronic surveillance or undercover operations). Everything else, would be the primary responsibility of the CBSA. It is clear that under this agreement, the responsibility for the investigation of the offences involving Ms. Codina would fall to the CBSA.

26Entering into such arrangements is part of the mandate of the CBSA created by statute, and in particular is contemplated by s. 5(1)(b) of its enabling legislation, which provides that the responsibility of the CBSA includes “implementing agreements or arrangements between the Agency and departments or agencies of the Government of Canada to carry out an activity, provide a service or administer a program.”

27Ms. Codina argued that s. 138(1) is not a stand-alone section, but merely an introduction to the three sections which follow it, all of which relate to the powers of CBSA officers at borders in relation to persons who are not Canadian citizens or permanent residents. I do not see that as a reasonable construction of the wording of the legislation.

28Ms. Codina also argued that the words “if so authorized” in s. 138(1) apply only to a specific statutory authorization elsewhere within the IRPA. In effect, she is reading the section as stating “if so authorized under this Act.” That is not the ordinary meaning of the words used, and I see no reason to restrict the normal meaning of the words in this manner.

29I agree with Ms. Codina that the wording as between the English and French versions of this section is somewhat different, and that if there is a discrepancy, she is entitled to the one more beneficial to her. However, I do not see the two variations as having any substantive impact on the appropriate interpretation of the section. The English version (with differences emphasized) states:

138 (1) An officer, if so authorized, has the authority and powers of a peace officer — including those set out in sections 487 to 492.2 of the Criminal Code — to enforce this Act, including any of its provisions with respect to the arrest, detention or removal from Canada of any person.

30The French version (with differences emphasized) states:

138 (1) L’agent détient, sur autorisation à cet effet, les attributions d’un agent de la paix, et notamment celles visées aux articles 487 à 492.2 du Code criminelpour faire appliquer la présente loi, notamment en ce qui touche l’arrestation, la détention et le renvoi hors du Canada.

31The only differences between the French and English versions are in the concluding clause of the provision. The French version says “notamment,” which would more closely be translated as “notably” rather than the word “including,” which is used in the English version. Given that this is in the concluding clause, which merely provides examples of the authority being given to enforce, I would not read the English version any differently if it said “notably” as opposed to “including.” Likewise, the French version says “ou” meaning “or”, whereas the English version uses the conjunctive “and,” but I do not see this as creating an entirely different meaning for the provision. In my view, the use of the word “or” would not mean that the only time CBSA officers would have authority to arrest would be in connection with the removal of someone from Canada.

32Ms. Codina points to the Extradition Act, which contains within it a section specifically authorizing an application for judicial interim release after arrest and detention. She argues that since the IRPA does not have a similar provision, there is no authority to arrest under IRPA and only police officers may do so. I do not agree. A person who commits an offence under s. 91 or s. 126 of the IRPA is stipulated to have committed an indictable offence. The Interpretation Act provides that the provisions of the Criminal Code therefore apply.¹² Therefore, the judicial interim release provisions of the Criminal Code apply, and there is no need to have a specific provision dealing with it in the IRPA. It follows that the absence of such a provision in the IRPA does not affect the interpretation of s. 138(1).

33I find that the CBSA had statutory authority to investigate offences under ss. 91 and 126 of the IRPA. Further, the officers who investigated Ms. Codina and those who arrested and detained her, as well as those involved in obtaining and executing the search warrant were properly designated as peace officers under s. 138(1) of the IRPA and were acting within their jurisdiction in doing so. Even if the R.C.M.P. might also have statutory power to carry out the same duties, the arrangement between the R.C.M.P. and the CBSA, as embodied in their Letter of Intent and as authorized by statute, designated the CBSA as having primary responsibility for these types of offences.

34Finally, I find no merit in Ms. Codina’s argument with respect to the territorial jurisdiction of the CBSA officers involved in this case. She argued that these officers were based in Mississauga and lacked jurisdiction to prosecute offences that would have involved IRPA applications that would be commenced outside Canada. The charges against Ms. Codina allege that she gave advice on an immigration matter, or presented or offered to represent immigration clients, or counselled someone to make a misrepresentation in an immigration matter. In every one of these cases, the actions or statements by Ms. Codina giving rise to the charges took place in Toronto. There was clear territorial jurisdiction.

35Accordingly, Ms. Codina’s application with respect to the jurisdiction of the CBSA under s. 138(1) of the IRPA is dismissed.

SECTION 91

36Four of the counts on the indictment relate to alleged breaches of s. 91(1) of the IRPA, which was introduced as part of the amendments that came into force under Bill C-35 in June 2011. It states:

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.

91 (2) A person does not contravene subsection (1) if they are

(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;

(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or

(c) a member in good standing of a body designated under subsection (5).

37Ms. Codina raises two arguments with respect to the unconstitutionality of this provision. First, she argues that the provision relates to the regulation of professionals, which is a provincial power. She submits that the provision is therefore invalid as being beyond the constitutional jurisdiction of the federal government. Second, she argues that the language of the section is so vague and overly broad as to violate her rights under s. 7 of the Charter.

The Division of Powers Argument

38Ms. Codina relied on Law Society of British Columbia v. Mangat for her argument that s. 91(1) of the IRPA is ultra vires the federal government. ¹³ That case, in fact, stands for the opposite proposition. Ms. Codina also submitted that the Supreme Court in Mangat held that acting for people in immigration is not the practice of law. The Supreme Court did not say that. Ms. Codina’s assertion is a complete mischaracterization of what the Court did say.

39At issue in Mangat were ss. 30 and 69(1) of what was then the Immigration Act (a precursor to the IRPA). ¹⁴ Section 69(1) provided that a person who was subject to proceedings before the Refugee Division of the Immigration and Refugee Board (“IRB”) “may, at that person’s own expense, be represented by a barrister or solicitor or other counsel.” Section 30 required that such persons be advised of that right to counsel. The respondent Mangat was involved in providing immigration services to individuals in British Columbia, including appearing on behalf of refugee claimants before the IRB. He had a law degree from India, but was not licensed to practice law by the Law Society of British Columbia. He described himself as “an immigration consultant.” The Law Society took the position that Mr. Mangat was engaged in the practice of law and sought an injunction to restrain him from doing so. The Law Society relied on its enabling statute, the Legal Professions Act¹⁵ which prohibits a person from engaging in the practice of law unless a member of the Law Society. The judge at first instance granted the injunction, but this was reversed by the British Columbia Court of Appeal. The Supreme Court of Canada dismissed the Law Society’s appeal from that decision.

40Gonthier J. (writing the unanimous decision) held that there was a direct conflict between s. 69(1) of the Immigration Act and the provisions of the Legal Professions Act. The Immigration Act authorized non-lawyers to appear as counsel for a fee. On the other hand, the Legal Professions Act prohibited anyone not a member of the Law Society from engaging in the practice of law, and did not exempt persons appearing as a representative, counsel or agent at the IRB. He held that the only way Mr. Mangat could meet the requirements of both statutes would be to become a licensed member of the Law Society or not charge a fee for his services, which would defeat the purpose of s. 69(1) of the Immigration Act, which was to allow non-lawyers to appear for a fee.¹⁶

41This finding, as well as other portions of the decision, directly contradicts Ms. Codina’s contention that the Supreme Court held that providing immigration services was not the practice of law. The opposite is true.

42In determining whether the Law Society was entitled to an injunction, the Supreme Court looked first at the pith and substance of the impugned provisions and then classified that essential character under one of the heads of power in the Constitution Act, 1867. Gonthier J. held that the pith and substance of the provisions was to grant certain rights to aliens in the immigration administrative process and that this fell within federal jurisdiction over naturalization and aliens pursuant to s. 91(25) of the constitution.¹⁷

43The Supreme Court recognized in Mangat that the regulation of lawyers and other professionals is a provincial power under s. 92(13) of the constitution and also relates to the administration of justice in the province, which is a provincial power under s. 92(14). At the same time, the Immigration Act provisions fall squarely within federal powers. The Court referred to the “double aspect doctrine” in which subject matter may fall within a federal power in one aspect and a provincial power in another aspect. Provided there is no conflict between the federal legislation and the provincial legislation, there is no problem. However, the Supreme Court found there was a conflict in that the provincial law would displace the legislative purpose of the federal law. Therefore, the Court applied the principle of paramountcy and determined that the provisions of the Immigration Act were valid and paramount over the provisions of the Legal Professions Act.

44Ms. Codina relied on some aspects of the decision of the motion judge who had granted the injunction. The motion judge’s decision in that regard was overruled and her reasoning was specifically disavowed.

45Ms. Codina argues that s. 91(1) of the IRPA is ultra vires the federal government because it entrenches on the power of the provinces to regulate its legal professionals. Even if she were correct in that regard, Mangat would be authority for invoking the paramountcy doctrine and upholding the validity of the federal provisions.

46However, there are distinct differences between the provisions at issue in Mangat and the ones at issue in this case. Mangat related to who could appear before the IRB and the federal legislation permitted non-lawyers to do so for compensation. However, at the time of Mangat there was no agency created under the Immigration Act to license or supervise non-lawyers who were providing immigration advice and representation, notwithstanding a specific provision giving the Governor in Council the power to do so by regulations. The Supreme Court noted the absence of such regulatory authority and held at para. 62:

Section 114(1)(v) clearly provides that the Governor in Council may make regulations requiring any person, other than a person who is a member of a bar of any province, to make an application for and obtain a licence from a prescribed authority before the person may appear before the IRB as counsel for any fee, reward, or other form of remuneration. Although that regulatory authority has not yet been established, it does not limit the scope of ss. 30 and 69(1). While it may very well be preferable to regulate those persons, there is no obligation for the government to regulate them. In saying that “other counsel” may represent and in empowering the Governor in Council to make regulations, Parliament has explicitly and definitively legislated in the area. [Emphasis added.]

And further, at para. 67:

As I mentioned above, there is no obligation for Parliament to regulate the “other counsel”, even though it may be wise and advisable to do so. The enactment of ss. 30 and 69(1) and of s. 114(1)(v) illustrates Parliament’s intention to address the subject of who may appear before the IRB. Aside from the situations where Parliament refers to provincial legislation (as it does for barristers and solicitors), the federal government has defined “other counsel” as being “a person”, and the provinces cannot intervene in that sphere. Moreover, by the enactment of s. 114, Parliament has demonstrated its intent to regulate such counsel if and when needed. It has not yet done so, but that does not mean that the provinces can enact conflicting legislation in the meantime. However, to the extent that Parliament refers to the provincial statutes and regulations or leaves the matter unaddressed, the provinces can regulate that matter in accordance with their own powers. [Emphasis added.]

47Thus, the Supreme Court of Canada in Mangat specifically contemplated that the federal government might step in to regulate who could appear as “counsel” in immigration matters, and opined that this would be a valid exercise of the federal power. I note that, since Mangat, the federal legislation does provide for the licensing of immigration consultants under the Immigration Consultants of Canada Regulatory Council (“ICCRC”). In my view, the decision in Mangat supports, rather than undermines, the constitutionality of those provisions.

48Be that as it may, the legislative provisions at issue before me are quite different from those dealt with in Mangat. Essentially, what Parliament has done under s. 91(1) of the IRPA is to make it a criminal offence for a person to provide immigration advice or representation for consideration, unless that person is either a registered lawyer with a provincial law society or a registered immigration consultant with the ICCRC. This falls squarely within the federal power over criminal matters, as well as within the federal power over matters of immigration. The Supreme Court of Canada held in Mangat that legislating who is entitled to advise and represent individuals involved in the immigration process is a valid exercise of the federal power.

49I see the pith and substance of this provision as being the protection of vulnerable people seeking admission to Canada by ensuring that the persons entitled to give them advice and representation are licensed professionals competent to do so. The enactment of an offence provision to enforce that objective is clearly part of the overall regulatory immigration scheme, which is a federal power. The difference between this case and Mangat is that I was not directed to any provincial legislative provision that could be said to conflict with s. 91(1) of IRPA. I do not see this legislation as impinging on any provincial power. However, even if it did, in the absence of a conflict, they could live side by side. And finally, even if there was a conflict, the doctrine of paramountcy would still lead to the conclusion that s. 91(1) is valid legislation.

50Ms. Codina also noted that s. 91(1) does not do anything about people providing advice to potential immigrants from outside of Canada. She submitted that I should therefore find the provision to be unconstitutional because people “differently situated” were treated differently. She invoked s. 15 of the Charter to support this argument, stating that there is discrimination and unequal protection under the law as between two classes of people: those who are non-licensed persons within Canada and those who are non-licensed persons abroad. These are not categories entitled to the protection of s. 15 of the Charter. Obviously, there are territorial limits to the jurisdiction of Parliament over individuals operating entirely outside the borders of Canada. That has nothing to do with the validity of legislation in relation to people acting within Canada. There is no merit to this argument.

51Ms. Codina argued that s. 91(1) of the IRPA is unconstitutional because there is a conflict between it and s. 167(1), which states that a person who is subject to proceedings before the IRB “may, at their own expense, be represented by legal or other counsel.” I see no conflict. Sections 91(1) and 167(1) can be read together in a consistent manner by interpreting “other counsel” as someone registered with the ICCRC (or falling into other categories recognized in s. 91(1)).

52Finally, Ms. Codina submitted that the ICCRC is not doing an effective job in protecting the public and the scheme is therefore unconstitutional. That point has no foundation in law.

53Accordingly, I find s. 91(1) of IRPA to be a intra vires the federal government and this aspect of Ms. Codina’s application is dismissed.

The Section 7 Argument

54Section 91(1) creates a criminal offence with the possibility of incarceration upon conviction. I accept that this invokes the rights to life, liberty and security of the person guaranteed under s. 7 of the Charter of Rights and Freedoms.

55However, Ms. Codina’s arguments on this point were about the proper interpretation of the language of the provision, notably the words “advise,” “directly and indirectly,” “person” and “for consideration.” She argued that on the facts of the case against her, she could not be convicted if these terms were properly defined in a manner consistent with Charter principles.

56In my opinion, this is not a basis upon which to strike the section as being invalid because it breaches s. 7 rights. The words complained of do not necessarily violate s. 7, nor are they overly broad or vague on their face. They are not unusual words or phrases to be found in criminal legislation, and are capable of an interpretation that would not violate s. 7 rights. The substance of Ms. Codina’s argument is a question of what interpretation the words of this provision should properly bear. That is an issue better dealt with as a question of law on how these terms would be defined for the jury, or on a motion for a directed verdict (which Ms. Codina indicated she intended to bring at the close of the Crown’s case).

SECTION 126

57Ms. Codina’s argument with respect to the constitutionality of s. 126 of the IRPA is largely the same as the s. 7 argument she advanced in relation to s. 91(1). She objected to the Crown’s interpretation of the words “could induce” and “directly or indirectly” and argued that to apply such interpretations to the facts in her case would be unconstitutional. Further, she argued that the terms “could induce” and “relevant” were overly broad. These are not unusual terms and are easily capable of interpretation in a manner that would not contravene s. 7 of the Charter. I deferred consideration of these issues on the same basis as the s. 7 issues raised with respect to s. 91(1).

CONCLUSION

58In the result:

(i) Application #3 is dismissed (constitutional validity of ss. 138(1) and jurisdiction of the CBSA to prosecute these offences);

(ii) Application #4 is dismissed with respect to the challenge to the constitutional validity of s. 91(1) as being an invalid intrusion on provincial powers;

(iii) Application #4 is dismissed in relation to ss. 91(1) and 126 being unconstitutional on their face as a violation of s. 7 of the Charter;

(iv) Those aspects of Application #4 relating to the proper interpretation of ss. 91(1) and 126 of IRPA are deferred to be considered as a question of law at a later point in the proceedings.

Footnotes

1. 1Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”).
2. 2R. v. Codina, 2017 ONCA 93, [2017] O.J. No. 496.
3. 3R. v. Codina, 2017 ONSC 4105.
4. 4IRPA, s. 4(2)(b).
5. 5Canada Border Services Agency Act, S.C. 2005, c. 38 (“CBSA Act”).
6. 6CBSA Act, s. 5(1)(a).
7. 7CBSA Act, s. 2(a).
8. 8CBSA Act, ss. 2, 6(1) and 6(2).
9. 9CBSA Act, ss. 7(1), 8(1), and 9(3).
10. 10Exhibit 3 on the voir dire.
11. 11Exhibit V to the Affidavit of Michelle Naughton.
12. 12Interpretation Act, RSC 1985, c I-21, s. 34(2).
13. 13Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113 (“Mangat”).
14. 14Immigration Act, S.C. 1976-77, c. 52.
15. 15Legal Professions Act, S.B.C. 1987, c. 25 (subsequently R.S.B.C., c. 255, ss. 1, 26, 109).
16. 16Mangat, at paras. 72-73.
17. 17Mangat, at paras. 30-37.