R. v. Codina #2, 2017 ONSC 7236
CITATION: R. v. Codina #2, 2017 ONSC 7236 COURT FILE NO.: 16-9-761 DATE: 2017-12-22
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
ANGELINA MARIE CODINA Defendant/Applicant
COUNSEL: Lynda Trefler and Vanita Goela, for the Crown In person
HEARD: September 14 and 26, 2017
REASONS FOR DECISION #2
(Validity of the Preferred Indictment and Constitutionality of s. 577 of the Criminal Code)
A. BACKGROUND[^1]
[1] Angelina 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").[^2] 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.
[2] Initially, 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.
[3] On 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.
[4] An 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.
[5] The preliminary inquiry on the first set of charges commenced in the Ontario Court of Justice on November 23, 2015 and the preliminary inquiry on the second set of charges 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). However, Mr. Dhaliwal was out of the jurisdiction and refused to either come to Canada for the trial or provide evidence by video-link. When I refused the Crown's motion to introduce at trial the transcript of Mr. Dhaliwal's testimony at the preliminary, the Crown stayed the count involving him. Accordingly, the trial proceeded before me with respect to only the first set of charges.
[6] Ms. Codina brought a number of pre-trial applications, among them an application for a determination that the preferred indictment in this case is a nullity and that the Court is therefore without jurisdiction to hear the matter (Application #1) and a constitutional challenge to s. 577 of the Criminal Code, the section authorizing a preferred indictment (Application #2). I dismissed both applications, indicating that formal reasons would be provided at a later date. Those reasons follow. There is considerable overlap between the two applications. They were argued together and these reasons cover both applications.
B. THE PREFERRED INDICTMENT
[7] Section 577 of the Criminal Code provides:
- Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if
(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; or
(b) in any other case, a judge of the court so orders.
[8] Since this was a prosecution conducted by the Attorney General, it follows that the "personal consent in writing" of the Attorney General or Deputy Attorney General is required to be filed in court. The question is what that means.
[9] The indictment itself sets out the counts and then states "Dated this 8th day of December, 2016 at the City of Ottawa, Province of Ontario", which is followed by the signature of the Agent for the Director of Public Prosecutions.
[10] This is followed immediately by the statement, "I hereby consent to the preferring of this Indictment pursuant to Section 577 of the Criminal Code," which is also dated in Ottawa on December 8, 2016 and which is followed by the signature of the "Acting Director of Public Prosecutions and Deputy Attorney General of Canada."
C. THIS ISSUE HAS ALREADY BEEN DECIDED
[11] Ms. Codina argued before me that at the relevant time, William Pentney was the Deputy Minister of Justice and Deputy Attorney General. The indictment was signed by George Dolhai who was the Acting Director of Public Prosecutions. Ms. Codina submitted that the only person who can provide the consent is the Deputy Attorney General, that this must be done personally, and that it cannot be delegated. Therefore, she asserted, the indictment is a nullity.
[12] In her factum, Ms. Codina relied extensively on the decision of the Ontario Court of Appeal in R. v. Dwyer and Lauzon.[^3] The Crown submitted that Ms. Codina made these same arguments before the Ontario Court of Appeal in January 2017 at the hearing of her appeal from dismissal of her habeus corpus application. Although Ms. Codina's appeal was successful insofar as a new hearing was ordered with respect to her continued detention, the Court of Appeal specifically rejected this argument.[^4]
[13] Ms. Codina submitted that her argument before me is different from what was before the Court of Appeal on the prior occasion. I was not provided with the material she filed on that occasion, and there would be no record of the argument she made. However, it is clear that Ms. Codina argued that the indictment was a nullity, that she relied upon Dwyer, and that the Court of Appeal dismissed her argument.
[14] In Dwyer an indictment had been preferred with an endorsement similar to the wording on the indictment against Ms. Codina. The Dwyer indictment stated "I hereby consent to the preferment of this indictment, (signed) R.R. McMurtry, Attorney General for the Province of Ontario." Based on the wording of the Criminal Code as it was at that time, the Ontario Court of Appeal ruled that the indictment was a nullity. The Court of Appeal held that the Attorney General must in a written direction, preferably on the indictment, "clearly direct that the indictment be preferred or state that he prefers the indictment" and that consenting to the preferment was not sufficient. The Court stated that the Attorney General "cannot delegate this responsibility by consent or otherwise to any other person."[^5]
[15] The Dwyer decision was based on the wording of what was then s. 507(3) of the Criminal Code, which stated:
507(3) Notwithstanding anything in this section, where
(a) a preliminary inquiry has not been held, or
(b) a preliminary inquiry has been held and the accused has been discharged,
an indictment under subsection (1) shall not be preferred except with the written consent of a judge of the court, or by the Attorney General.
[16] In its habeus corpus appeal decision on February 2, 2017, the Court of Appeal dismissed Ms. Codina's argument, stating that there was "no merit in this submission because of an amendment to the Criminal Code since the Dwyer decision."[^6] The Court then referred to the language of the previous provision (which states preferred by the Attorney General) and contrasted it to the current wording (which states "personal consent in writing of the Attorney General or Deputy Attorney General"). The Court held (at para. 17), referring to the current provision:
This section now allows an indictment to be preferred with the consent in writing of the Deputy Attorney General. As a result, there is no Dwyer defect in the preferred indictment.
[17] The Crown submitted that Ms. Codina's attacks on the validity of the preferred indictment and the constitutionality of s. 577 of the Criminal Code should be dismissed summarily. There is a strong argument that this issue is now res judicata. Ms. Codina argued before the Court of Appeal that the preferred indictment was a nullity based on the form of endorsement and the Court of Appeal rejected that argument. Regardless of what exact legal arguments were raised by her, certainly the issue itself was raised and Ms. Codina had an obligation to put forward all of her arguments in respect of that issue at the same time. It is an abuse of the court's process to lose on a point that either was, or could have been raised on the earlier occasion, and then simply recast the argument in a slightly different guise and bring it again before a different court.[^7]
[18] In my view, Ms. Codina is simply trying to re-litigate an issue already decided against her and I am reinforced in that view by paragraph 165 of the factum she filed in her Application #2 (Jurisdictional and Constitutional Challenge, Section 577 of the Criminal Code). At paragraph 164 of that factum, Ms. Codina referred to the reasons of the Court of Appeal as I have cited them above. She then wrote (at paragraph 165):
With all due respect, the Applicant contends that this Court has misread the language and purport of s. 577 of the Criminal Code. Insofar as the section is to be read as stipulated by the Court in the Codina habeus corpus appeal, the statute is unconstitutional in the unauthorized delegation of executive authority.
[19] I do not agree that the Court of Appeal "misread the language and purport of s. 577 of the Criminal Code," not that this matters as the decision is binding upon me whether I agree with it or not. I consider the Court of Appeal's ruling to be a final determination on the validity of the preferred indictment, based on the nature of the endorsement of the Attorney General's consent. Accordingly, both Applications #1 and #2 are dismissed.
D. ALTERNATIVE BASES FOR DISMISSING APPLICATIONS
[20] Ms. Codina argued before me that her current applications are different from the issues before the Court of Appeal in two respects: (1) her argument in the second application is with respect to the person who signed the consent endorsed on the record, rather than the wording of the consent; and (2) her argument in the second application is with respect to the constitutionality of s. 577 itself. Notwithstanding my decision above, in an abundance of caution, and bearing in mind that Ms. Codina is representing herself in these proceedings, I will deal briefly with both issues in the alternative.
Did the Wrong Person Sign?
[21] Ms. Codina emphasized that s. 577 stipulates that the Attorney General or Deputy Attorney General must "personally" consent to the preferment of the indictment. She argued that the Deputy Attorney General is a person (William Pentney) and that the Deputy of Public Prosecutions is a separate and distinct person (George Dolhai) and that only Mr. Pentney was empowered by the Criminal Code to consent.
[22] This argument misses the point that the Attorney General is an office and that it may be filled by different people for different purposes. The definition section of the Criminal Code itself illustrates this principle. Although the words "Attorney General" are used in s. 577, that is subject to various definitions under s. 2 of the Criminal Code with eight subsections defining the term for different purposes, including the following:
(a) subject to paragraphs (b.1) to (g), with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy,
(b) with respect to Yukon, the Northwest Territories and Nunavut, or with respect to proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a contravention of, a conspiracy or attempt to contravene, or counselling the contravention of, any Act of Parliament other than this Act or any regulation made under such an Act, means the Attorney General of Canada and includes his or her lawful deputy,
[23] The Director of Public Prosecutions Act ("the DPP Act") provides for the appointment of a Director of Public Prosecutions ("DPP").[^8] Section 3 of the DPP Act sets out the duties and functions of the DPP, including that the DPP, "under and on behalf of the Attorney General [of Canada], initiates and conducts prosecutions on behalf of the Crown." Section 3(4) of the DPP Act states:
- (4) For the purposes of exercising the powers and performing the duties and function referred to in subsection (3), the Director is the Deputy Attorney General of Canada.
[24] Thus, under this provision, the DPP is the Deputy Attorney General in respect of initiating criminal proceedings. It follows that for purposes of s. 577 of the Criminal Code, the DPP is the Deputy Attorney General and is therefore the person authorized by statute to consent to the preferment of an indictment. Ms. Codina argued that this was an improper delegation of authority. That is not correct. There is no delegation involved. Parliament has, by statute, deemed the DPP to be the Deputy Attorney General for this purpose.
Constitutionality of s. 577 of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[25] Ms. Codina argued that interpreting s. 577 as permitting the DPP to sign the consent would render the section unconstitutional. Both the Criminal Code and the Director of Public Prosecutions Act are federal statutes. When enacting the Director of Public Prosecutions Act, Parliament is deemed to know the provisions of the Criminal Code and the interaction between the two. For some purposes, the federal Attorney General is defined in the Criminal Code as the Attorney General having authority to do certain things and for some purposes, the provincial Attorney General or Solicitor General is given that authority. Under the DPP Act, the DPP is deemed to be the Attorney General of Canada for some purposes. Such designations fall squarely within the jurisdiction of Parliament and are fully consistent with the powers of Parliament.
[26] Ms. Codina also argued that s. 577 was unconstitutional as being overly broad, vague and arbitrary. She cited no authority beyond Dwyer, which does not support her argument. In my view, there is no merit to this argument. The constitutionality of a preferred indictment under s. 577 of the Criminal Code is well settled in the case law.[^9] I see no merit in Ms. Codina's constitutional challenge to this provision.
E. APPLICATION TO QUASH THE INDICTMENT
[27] In Application #9, Ms. Codina sought to have the indictment quashed on the grounds that (a) the counts on the indictment are so lacking in particularity as to make it impossible for her to know the case she had to meet; and (b) the counts should be struck as being duplicitous and encompassing multiple offences within the same count.
[28] All of the counts on the indictment set out the offences charged with sufficient particularity to identify to Ms. Codina the case she had to meet. The indictment is not a nullity. To the extent further details might have been desirable, the additional written particulars provided by the Crown are more than adequate to satisfy that requirement. I note that Ms. Codina had the benefit of hearing all of the evidence and the submissions of the Crown at the preliminary inquiry. As of the date when she brought her application before me, she was completely conversant with the allegation of the Crown on every count against her, as well as the evidence relied upon by the Crown to support those allegations. I note as well that this application was first filed in court on Friday, September 22, 2017, notwithstanding the fact that the timing for delivery of pretrial motions was extensively dealt with in the multiple pre-trials and court appearances in this matter, and that date had already passed.
[29] Further, I do not see the counts as being duplicitous. Counts 1, 2, 3 and 4 each allege that Ms. Codina provided advice or representation or offered to do so with respect to a specific client or client group. These were situations in which Ms. Codina had an ongoing relationship with the client, in the course of which her conduct gave rise to the alleged breach. It is not necessary in that situation to lay a separate charge with respect to each separate piece of advice or representation alleged to have been provided.
[30] Likewise, Count 5 relates to an ongoing relationship between Ms. Codina and Mr. Abdolvahabi in which she is alleged to have counselled misrepresentation. All of the conversations giving rise to the charge were the tape recorded by the complainant and Ms. Codina was fully aware of precisely what words were said constitute the offence. Although there were many examples of counselling misrepresentation throughout Ms. Codina's meetings with Mr. Abdolvahabi, it was not necessary for the Crown to lay a separate charge with respect to each statement. It is the whole of the interactions that give rise to the charge. The Crown elected to drop the aiding and abetting and attempt aspects of this count. However, even before this concession, in my view the count was not so defective as to require it to be quashed.
[31] Section 590(1)(b) of the Criminal Code provides that offences may be charged in the alternative and that a count is not objectionable by reason only that it is double or multifarious. I see no useful purpose in requiring that the modes of committing these offences each be separated out into a separate count. There is no prejudice to Ms. Codina in requiring her to address the counts as they stand. On the other hand, dividing the counts into multiple separate counts would unduly complicate the proceeding for both parties as well as for the jury. In my view, it was not in the interests of justice to do so. Accordingly, I declined to quash the indictment.
F. CONCLUSION
[32] Some of the arguments in Ms. Codina's materials filed on Applications #1 and #2 relate to alleged abuse of process by the Crown. Those arguments were deferred to be dealt with at the conclusion of trial in the overall abuse of process application. In all other respects, Ms. Codina's Application #1 and Application #2 are dismissed.
[33] Application # 9 is dismissed.
MOLLOY J.
Released: December 22, 2017
CITATION: R. v. Codina #2, 2017 ONSC 7236 COURT FILE NO.: 16-9-761 DATE: 2017-12-22
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
ANGELINA MARIE CODINA Defendant/Applicant
REASONS FOR JUDGMENT MOLLOY J.
Released: December 22, 2017
[^1]: For a more detailed background, see R. v. Codina #1, 2017 ONSC 7162. [^2]: Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). [^3]: R. v. Dwyer, (1978) 1978 2513 (ON CA), 42 C.C.C. (2d) 83 (Ont. C.A.) ("Dwyer"), rev on other grounds: 1979 53 (SCC), [1980] 1 S.C.R. 481. [^4]: R. v. Codina, 2017 ONCA 93, [2017] O.J. No. 496 ("Codina, 2017 ONCA"). [^5]: Dwyer at para. 43. [^6]: Codina, 2017 ONCA at para.14. [^7]: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. See also Gyimah v. Reda, 2017 ONCA 316, 277 A.C.W.S. (3d) 770. [^8]: Director of Public Prosecutions Act, S.C. 2006, c. 9, s.121. [^9]: See R. v. Ahmad, 2008 27470 (ON SC), 59 C.R. (6th) 308 (Ont. Sup. Ct.) and cases referred to therein: R. v. Sher, 2012 ONSC 4783, [2012] O.J. No. 3916; R. v. Arviv, 1985 161 (ON CA), [1985] O.J. No. 2602 (Ont. C.A.); R. v. Ertel, 1987 183 (ON CA), [1987] O.J. No. 516 (Ont. C.A.); R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426.