R. v. Codina #4, 2017 ONSC 7315
CITATION: R. v. Codina #4, 2017 ONSC 7315
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
COUNSEL:
Lynda Trefler and Vanita Goela, for the Crown
In person
HEARD: September 13 and 15, 2017
REASONS FOR DECISION #4
(Constitutional Challenge to ss. 145(3), 523, 524 and Part 18 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 cellphones 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 was arrested on the second set of charges on September 17, 2015. Her bail was revoked. On December 8, 2015, a Justice of the Peace made a detention order in respect of the outstanding charges. Ms. Codina brought an application for bail review, which was dismissed in an oral decision by Himel J. on May 20, 2016. Ms. Codina then brought a two-part habeus corpus application before Goodman J., which was dismissed on July 6 and July 21, 2016, for reasons to follow. A second application for bail review was denied by Clark J. on October 19, 2016 and a third such application was dismissed by M. Brown J. on December 29, 2016. Meanwhile, Ms. Codina had appealed the decisions of Goodman J. to the Ontario Court of Appeal. For written reasons dated February 2, 2017, the Court of Appeal set aside the decision of Goodman J. for failing to provide adequate reasons and ordered a new habeus corpus hearing to be adjourned pending the outcome of a new bail review hearing. That hearing proceeded before Dunnet J. and resulted in an order dated February 28, 2017 that Ms. Codina be released on her own recognizance, with terms.
[7] The trial commenced before me on September 11, 2017 with pre-trial motions. Ms. Codina brought a number of pre-trial applications, among them (Application #4) constitutional challenges to a number of provisions of the IRPA and sections 577, 145(3), 523, 524, and Part 18 (ss. 535, 537, 541, 542, 548) of the Criminal Code. I dismissed these applications, for reasons to follow. My reasons for dismissing the application with respect to the challenges to the IRPA provisions are set out in R. v. Codina #1.[^3] Ms. Codina’s applications relating to the constitutionality of s. 577 of the Criminal Code were dismissed for reasons set out in R. v. Codina #2.[^4]
[8] For the reasons set out below, Ms. Codina’s application as it relates to constitutionality of the other Criminal Code provisions listed above is also dismissed.
B. PART 18 OF THE CRIMINAL CODE
[9] The challenged provisions of Part 18 of the Criminal Code relate to the jurisdiction and powers of a judge conducting a preliminary inquiry. Ms. Codina contends that:
(i) these provisions contravene s. 7 of the Charter because they are vague and overbroad and fail to give sufficient legal guidance with respect to Charter challenges brought at the preliminary inquiry;
(ii) a preliminary hearing justice has jurisdiction to stay proceedings where there has been a breach of s. 7 of the Charter;
(iii) a preliminary hearing judge has jurisdiction to exclude evidence obtained in breach of Charter rights; and,
(iv) a preliminary hearing judge has jurisdiction to determine the constitutionality of legislation under s. 52 of the Constitution Act.
[10] Neither of the preliminary hearings in this matter were concluded. Before that happened, the Crown preferred an indictment. All of the issues involving constitutional challenges which Ms. Codina sought to have dealt by the preliminary hearing judges, were the subject of applications before me as the trial judge.
[11] These issues were raised before the preliminary hearing judges involved and they declined to make the orders sought on the grounds that they lacked jurisdiction to do so. Ms. Codina then brought an application in this court seeking a declaratory relief with respect to Part 18 of the Criminal Code on essentially the same grounds as she later raised before me at trial. For written reasons dated November 24, 2016, Code J. dismissed that application, holding as follows (at para. 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. [^5]
And further, at para. 27, after referring to the Supreme Court of Canada decisions in R. v. Mills, R. v. Seaboyer and Gayme, and R. v. Hynes:[^6]
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.[^7]
[12] Subsequent to the decision of Code J. above, Ms. Codina brought three separate applications for certiorari, mandamus and prohibition relating to various rulings made by Ray J., who was the preliminary hearing judge for the second set of charges. Among the arguments made by Ms. Codina was that the preliminary hearing judge erred in finding that she had no jurisdiction to hear constitutional issues. On this issue, Code J. held as follows:
Second, Ray J. was correct in refusing to entertain Charter arguments, constitutional arguments, and arguments in support of a stay of proceedings. Codina is of the view that a judge presiding at a preliminary inquiry has the authority to rule on these matters, if they go to jurisdiction. I have already rejected this argument in the companion decision, R. v. Codina, 2016 ONSC 7305, dismissing an Application for declaratory Charter relief. Ray J. directed Codina, correctly, that all of these arguments could be considered, after arraignment, if Codina elected to be tried by Ray J. in the Ontario Court of Justice. Codina firmly rejected any such election…[^8]
[13] In my opinion, the issues raised in the pre-trial application before me as to the constitutionality of certain provisions of Part 18 of the Criminal Code were already raised on the application before Code J. and were dismissed by him, for reasons with which I am in full agreement. I would dismiss this application as being res judicata.
[14] Further, and in any event, there is no preliminary hearing any more. The issues raised as to the powers and jurisdiction of a preliminary hearing judge are therefore moot and Ms. Codina has no standing to litigate them. Even absent the res judicata issue, I would have dismissed this application as being moot.
C. CONSTITUTIONALITY OF SECTION 523 OF THE CRIMINAL CODE
[15] Section 523 of the Criminal Code is addressed only briefly in Ms. Codina’s factum and was not addressed in any detail in her oral submissions. Section 523(1) (1.1) and (1.2) relate to the effect on a detention order if a new information is laid charging the same offence or a direct indictment is preferred charging the same offence. Ms. Codina asserted that her argument on this point went beyond abuse of process and was a direct constitutional challenge to the provision. However, in her material she merely alleges that the Crown improperly relied on s. 523 to deny her a new bail hearing upon the laying of new charges and the preferment of the indictment and thereby “committed an abuse of process, violated [her] constitutional rights, and rendered [s. 523] of the Criminal Code constitutionally and jurisdictionally inoperative. In my view, this is simply a dressed-up abuse of process argument.
[16] Further, these issues were raised before Code J. and were fully addressed in his reasons dated November 24, 2016, as follows under the heading “The Declaration Relating to Section 523 of the Criminal Code”:
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.
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.
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.). [^9]
[17] In addition, Ms. Codina also raised this issue before the Court of Appeal on her appeal of the habeus corpus decision of Goodman J. the Court of Appeal rejected her argument, holding as follows (at paragraph 20):
The purpose and effect of s. 523(1.2) are to continue the previous detention order and make it apply to the new indictment. Any stay of the original charges therefore, has no effect on the ongoing status of the original detention order.[^10]
[18] I agree entirely with the decision of Code J. To the extent this issue is relevant to the abuse of process motion, it is deferred to be dealt with at that time. I see no basis for finding the provision itself to be unconstitutional.
[19] Therefore, this aspect of the application is dismissed.
D. CONSTITUTIONALITY OF SECTION 524(4) and (8) OF THE CRIMINAL CODE
[20] Ms. Codina’s argument is that the reverse onus clause in these bail provisions renders them unconstitutional. The clause she relies is the stipulation that when certain conditions are met, the accused shall be detained “unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention is not justified.” She argued that these provisions violate ss. 11(d), 9 and 11(3) of the Charter.
[21] Again, this issue was already argued before Code J. and was dismissed in his decision of November 24, 2016. I agree completely with and adopt his reasoning as follows (at paras. 16-18):
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.
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.
For all these reasons, the Application for a declaration in relation to s. 524(4) is dismissed.[^11]
[22] I find no merit to Ms. Codina’s attack on the constitutionality of the bail provisions. I note as well that the issue became moot upon Ms. Codina being released from custody. However, I heard argument on the merits because it could potentially have an impact on the abuse of process argument if her detention was prolonged due to the application of an unconstitutional bail provision. Having heard that argument and considered it, I have rejected it. This aspect of her application is therefore dismissed.
E. CONSTITUTIONALITY OF SECTION 145(3) OF THE CRIMINAL CODE
[23] Section 145(3) of the Criminal Code provides as follows:
- (3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
[24] Ms. Codina argued that the clause “without lawful excuse, the proof of which lies [on the accused]” creates a reverse onus or mandatory presumption that an accused is required to rebut. This, she submitted, violates the presumption of innocence guaranteed under the Charter by putting the onus on her to disprove an essential element of the offence alleged against her and is therefore constitutionally invalid.
[25] I note that this provision is similar to numerous other Criminal Code provisions relating to breaching a court order or undertaking given to the court. I was not referred to, and am not aware of, any decision dealing specifically with the constitutionality of such provisions in the context of failing to comply with court orders. The case law relied upon by Ms. Codina was both dated and not directly on point. I do not necessarily agree with her characterization of this clause as a true mandatory presumption or reverse onus situation. In my view, Ms. Codina’s argument misconstrues the challenged clause and misinterprets what the Crown is required to prove in order to establish a charge under s. 145(3).
[26] However, I note that Ms. Codina is no longer charged with breaching her bail. Those charges were stayed by the Crown and were not part of the preferred indictment before this Court. I do not see the constitutionality of the provision as having any impact on the abuse of process argument. Accordingly, in my opinion, her constitutional challenge to s. 145(3) of the Criminal Code is entirely moot and I decline to deal with it.
CONCLUSION
[27] Some of the arguments in Ms. Codina’s materials on Applications #4 relate to alleged abuse of process by the Crown. That aspect of her application is deferred to be dealt with at the conclusion of trial in the overall abuse of process application. In all other respects, her constitutional challenges to various provisions of the Criminal Code are dismissed.
MOLLOY J.
Released: December 22, 2017
CITATION: R. v. Codina #4, 2017 ONSC 7315
COURT FILE NO.: 16-9-761
DATE: 20171222
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. [^3]: R. v. Codina #1, 2017 ONSC 7162. [^4]: R. v. Codina #2, 2017 ONSC 7236. [^5]: R. v. Codina, 2016 ONSC 7305, [2016] O.J. No. 6866 at para. 25 (“Codina, 2016 ONSC 7305”). [^6]: R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623. [^7]: Codina, 2016 ONSC 7305 at para. 27. [^8]: R. v. Codina, 2016 ONSC 7335, [2016] O.J. No. 6748 at para. 8. [^9]: Codina, 2016 ONSC 7305 at paras.19-22. [^10]: R. v. Codina, 2017 ONCA 93, [2017] O.J. No. 496 at para. 20. [^11]: Codina, 2016 ONSC 7305 at paras. 16-18.