R. v. Codina #5, 2017 ONSC 7323

R. v. Codina #5, 2017 ONSC 7323

COURT FILE NO.: 16-9-761

DATE: 20171222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

ANGELINA MARIE CODINA

Defendant/Respondent

COUNSEL:

Lynda Trefler and Vanita Goela, for the Crown

In person

HEARD: September 12, 13, and 14, 2017

MOLLOY J.:

REASONS FOR DECISION #5

(Crown Applications to Admit Recordings and Transcripts)

A. BACKGROUND¹

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”).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.

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.

5The 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).

6Ms. Codina brought a number of pre-trial applications, all of which I dismissed.³

7The Crown brought four pre-trial applications. One was a motion to permit similar facts evidence on a count-to-count basis. I deferred ruling on that motion until the close of the Crown’s case. At that point in the trial, the Crown withdrew its application. The Crown also brought a motion to admit into evidence various audio recordings made by clients of some of their meetings with Ms. Codina. I ruled that those recordings were admissible, for reasons set out below.

8Finally, the Crown sought to introduce the evidence of Kulwant Singh Dhaliwal by filing the transcript of his testimony at the preliminary hearing on the grounds that Mr. Dhaliwal was out of the country and the Crown was unable to obtain his evidence in any other way. I dismissed that application, which had two consequences: (1) the Crown stayed Count 6 on the indictment relating to Ms. Codina allegedly providing advice to Mr. Dhaliwal; and (2) the Crown withdrew its application to admit the transcript of the testimony of Renee Codina at the bail hearing as that evidence was relevant only to Count 6. My reasons for dismissing that application are set out below.

B. AUDIO RECORDINGS OF MEETINGS WITH MS. CODINA

Introduction

9Under Count 3 of the indictment, Ms. Codina is charged with breaching s. 91(1) of the IRPA by providing advice to, or representing or offering to represent Nikolaos Mouzos in connection with a proceeding under that Act. Mr. Mouzos was in Toronto visiting relatives in the summer of 2012 and became interested in immigrating here. He had a number of meetings with Ms. Codina and other individuals employed by Ms. Codina’s wholly owned company (“Codina International”), commencing in early August 2012. On February 22, 2013, Mr. Mouzos attended a meeting at Codina International, accompanied by his nieces Ioanna Mourtzis and Vassiliki Mourtzis. Ioanna Mourtzis recorded that meeting on her phone and later downloaded it and provided it to the CBSA. The Crown sought to introduce the audio recording at trial.

10Counts 4 and 5 of the indictment relate to Farhad Abdolvahabi. Count 4 alleges that Ms. Codina breached s. 91(1) of the IRPA by providing immigration advice to and offering to represent Mr. Abdolvahabi and relatives of his living in Iran who wanted to come to Canada. Count 5 alleges that Ms. Codina counselled Mr. Abdolvahabi to make a material misrepresentation in an immigration matter contrary to s. 126 of the IRPA. Mr. Abdolvahabi recorded almost every meeting he had with Ms. Codina on his cell phone. Later, his daughter assisted him by downloading the recordings from his phone onto a computer and then transferring them to a CD, which was then provided to the CBSA. One of the recordings was actually made by the daughter. It was a voice message left by Ms. Codina on Mr. Abdolvahabi’s phone, which the daughter recorded on her own phone and preserved in the same manner as the recordings made by her father. The Crown sought to introduce all of the recordings into evidence.

11Although Ms. Codina was not aware that she was being recorded, all of the recordings tendered were made by persons who were present at the time of the conversations and prior to their having reported any complaints to the CBSA. There was no state involvement in the decision by these individuals to record their meetings. No wrongdoing is alleged in making these recordings. I agree that the individuals involved acted lawfully in making the recordings.

12Ms. Codina objected to the admissibility of this evidence on the following grounds:

(i) the accuracy of the recording could not be determined;

(ii) the meetings were protected by solicitor and client privilege;

(iii) the witnesses were required to give firsthand testimony and only refer to the transcripts of the recordings to refresh their memories if necessary; and,

(iv) the prejudicial impact of the recordings outweighed their probative value.

13For the reasons that follow, I found all of the recordings to be admissible, subject to some editing of the recording of the meeting with Mr. Mouzos to remove irrelevant and prejudicial material.

Accuracy of the Recording

14Ms. Codina objected to the accuracy of the recordings. She argued that Mr. Abdolvahabi’s daughter was involved in downloading material and copying it. She also noted that Mr. Abdolvahabi did not record every single meeting he had, and in particular did not record a meeting at Codina International at which he met a lawyer named Helen Tsakiris. (Ms. Codina was not present at that meeting). Ms. Codina conceded the authenticity of the recordings once they had been delivered to the CBSA, but not for the period before that, including the creation of the recordings and their preservation on a CD.

15The Crown undertook to call all of the witnesses who were involved in making the recordings and downloading them onto discs. Those witnesses testified at the preliminary hearing. In each case, the witnesses simply pressed the record button on their cell phones. In each case, this recording was later simply transferred to a computer and copied onto a CD. The Crown would also call evidence from the witnesses who were at these meetings to testify as to whether the recordings were a true reflection of what was said at these various meetings. Although the primary onus is on the Crown to prove authentication, in my view that preliminary onus is discharged by the proposed evidence.⁴ Ms. Codina will have full opportunity to cross-examine all of these witnesses with respect to any issues relating to the accuracy and/or completeness of the recordings. It will then be for the jury to decide whether they accept the tape recordings as authentic.

16In my opinion, this is an issue that goes to weight to be given to this evidence, not its admissibility. It is for the jury to determine whether the witnesses are trustworthy as to the creation and preservation of the recordings and, based on that assessment, what weight they would give to the recordings.

Solicitor and Client Privilege

17There is no need for me to determine whether there was actually a “solicitor and client” relationship between the individuals who made these recordings and Ms. Codina (who is neither a licensed lawyer nor a registered paralegal or immigration consultant). I therefore decline to do so.

18Even if a solicitor and client relationship could be said to exist, the privilege belongs to the client and can always be waived by the client. In this case, both Mr. Abdolvahabi and Mr. Mouzos provided the recordings to the CBSA, testified in recorded statements about everything that was said at their meetings with Ms. Codina, and also would be testifying as witnesses at trial. If privilege ever attached to the recordings, it was clearly and unequivocally waived.

First-Hand Evidence vs. Refreshing Memory

19These are recordings of complete interactions of these clients with Ms. Codina as the events are taking place. This is to be distinguished from an account given by a witness to police about a meeting after the fact. In the latter event, the witness must first at least attempt to testify based on his or her own recollection before referring to the prior statement to refresh his memory. That is not this case.

20The more apt analogy is surveillance videos or wiretap conversations. They are admissible as first-hand evidence of the events that are recorded. A witness’ memory of the precise words used and of every word said will never be as complete or as reliable as an actual tape recording of the conversation itself (assuming the accuracy of the recording, which as I have already noted, is within the purview of the jury). Indeed, the admission of the tape recordings into evidence complies with the “best evidence” rule.⁵

Prejudicial Impact vs. Probative Value

21The issue of prejudice does not arise with respect to the Abdolvahabi recordings. There are some discussions on the recordings that are not particularly relevant, but nothing that would be prejudicial to the accused. The recordings are highly probative as they constitute the exact words spoken by Ms. Codina, from which the jury is required to determine whether the offences charged have been proven.

22The issue of potential prejudice does arise with respect to the Mouzos recordings. Mr. Mouzos had paid a substantial sum to Codina International to process his immigration application. His visitor visa was close to expiring and he paid a further amount to get an extension of that visa, pending the processing of his other application. By February 2013, he still had heard nothing. His nieces, Ioanna and Vassiliki, decided to do some investigation of their own, which included doing an internet search on Ms. Codina. They found considerable information about Ms. Codina being a disbarred lawyer and having criminal convictions. They formed the view that their uncle was being cheated and went to the meeting with him with a view to forcing Ms. Codina to return his money to them. Particularly at the beginning of the meeting, the two nieces were angry and, at times, insulting and even abusive in their interactions with Ms. Codina. They accused her of wrongdoing. By the end of the meeting, they had calmed down considerably, even to the extent that they stipulated that, going forward, they wanted to deal only with Ms. Codina personally rather than with anyone else at Codina International.

23The issue on Count 3 is whether Ms. Codina gave immigration advice to Mr. Mouzos (as opposed to merely passing on information) and whether she offered to personally represent Mr. Mouzos in an immigration matter. Although the Crown also relies on earlier meetings between Ms. Codina and Mr. Mouzos, those meetings were not recorded. At the February 22, 2013 meeting, Ioanna Mourtzis reminded Ms. Codina and Eleni that they had been told that nothing went out of the office without Ms. Codina signing off on it. Ms. Codina denied using the words “signing off” and she said that she told them she “reviewed” every file that goes out of the firm.⁶ Ms. Codina then agreed that she would not require payment of the second $7500 installment for Mr. Mouzos’ application for permanent resident status unless he was successful on that application and if he was not successful, the whole fee would be refunded. With respect to the likely success of that application, Ms. Codina’s statements included the following:

• I will tell you, first of all, he will be approved.⁷

• Trust me, he will not get denied. He will not get denied.⁸

• I’m 100 percent he will get it, okay, definitely. Okay, there is no problem whatsoever in the classification. This is an excellent program. It’s an easy program to get approved. And that’s the reason we put him into that, okay, because it’s easy.⁹

24Following these statements, the family met privately. They then had further discussions with Ms. Codina about the logistics of filing the application, where it would be filed, and how long it would take. She told them Mr. Mouzos could easily get additional visitor visa extensions while they were waiting for the permanent resident visa and that they would not be charged anything more than the $75 filing fee for any further extensions. She stated, “You’re in an excellent position with that program, okay. It’s the best program you can imagine for you, and I think it’s good for you to, to continue with this.”¹⁰

25Ioanna Mourtzis said that if they were going to go ahead on this basis, they would want it confirmed in writing, to which Ms. Codina agreed. Ioanna then said:

I’ll be honest with you Angela. From this point on, I choose to do business with you. I don’t wanna be sent to Kosta. I don’t wanna be sent to…the lady over there (referring to another staff member).¹¹

26Ms. Codina replied as follows:

• I appreciate that you have the confidence also to do - to deal directly with me. But trust me, I am a very professional person.¹²

• And trust me, I have over 30 years’ experience, okay in this.¹³

• I know everything okay, okay.¹⁴

27These statements are highly probative evidence for the charges before the court. It would be of enormous assistance to the jury to hear the words actually spoken by Ms. Codina, and the tone of voice and manner in which those statements were made, to determine if Ms. Codina was giving advice and/or whether she was offering to personally represent Mr. Mouzos. It is hard to imagine more evidence more highly probative unless there was also video footage to go with the audio recording.

28Against that I must weigh the potential prejudice that could be caused by some of the irrelevant statements and accusations made by Ioanna and Vassiliki Mourtzis. At my request, the Crown prepared an alternative transcript, excising the portions of the recording the Crown considered to be either irrelevant or prejudicial. That edited transcript (Version 1) was made an exhibit on the voir dire and ultimately became Exhibit 92 at trial. I reviewed the edits and was wholly satisfied with the excisions that had been made. There was very little prejudice arising from anything left in the edited transcript, but the remaining portions were sufficient to provide a full context for the meeting and the statements made at the meeting.

29Ms. Codina protested against any excisions. She took the position that the Mourtzis sisters were so hostile and venomous towards her that the whole recording should be before the jury so they could see the level of animosity involved. I persuaded Ms. Codina to leave out some of the most seriously prejudicial comments and again asked the Crown to prepare another edited transcript (Version 2), this time with many of the obviously prejudicial portions left in. All of these were portions that Ms. Codina specifically asked to have before the jury.

30Ultimately, I decided that I should not require the Crown to lead evidence that the Crown thought to be irrelevant and prejudicial to the interests of the accused. I ruled that Version 1 would be admissible and would be the version presented to the jury by the Crown. In my opinion, there was ample material in that transcript to give the jury the flavor of the meeting and to enable Ms. Codina to develop her argument about the animosity of the Mourtzis sisters towards her. However, all of the irrelevant material about Ms. Codina’s past had been excised. I also ruled that I would instruct the jury about this point. With a cautionary instruction I was satisfied that there would be little, if any, prejudice to Ms. Codina arising from this recording. The little prejudice that might possibly arise from admitting the recording into evidence was greatly outweighed by its probative value.

31I advised Ms. Codina that if she wanted to elicit evidence from the witnesses with respect to portions that had been excised on the basis that it supported her theory that these witnesses were sufficiently motivated by malice to have fabricated the evidence against her, she was free to do so. However, I strongly cautioned her about the wisdom of doing so. In the result, Ms. Codina did refer to a small portion of the excised material in which one of the sisters alleged that they had been given certain advice by someone at Canada Immigration, which Ms. Codina alleged is not something that anyone at a government office would ever say.

32My final instructions to the jury contained the following cautionary instruction:

Some portions of the recording have been excised at my direction. The portions deleted are irrelevant to anything you have to decide and you should disregard the fact that excisions were made and not speculate on what was removed. The meeting was acrimonious. Mr. Mouzos said very little. However, Ioanna and Vassiliki were quite vocal. Much of what they said is irrelevant, but I left some of this in so that you could get a feeling for the tone of the meeting. Also, Ms. Codina made some reference to excised portions in her examination of the witnesses, particularly in support of her position that they made false accusations. In any event, I can assure you that nothing relevant has been kept from you.

Conclusion

33Accordingly, I ruled that the recordings of the conversations between Ms. Codina and Mr. Abdolvahabi were admissible in their entirety and that the recording of the February 22, 2013 meeting between Ms. Codina and Mr. Mouzos and his nieces was admissible as edited by the Crown.

C. PRELIMINARY HEARING TRANSCRIPT OF DHALIWAL

Introduction

34Ms. Codina was initially arrested on May 8, 2014 and charged with five offences (Counts 1-5 on the preferred indictment). She was released on bail. On September 17, 2015, CBSA officers attempting to serve Ms. Codina with materials for her upcoming preliminary hearing were unable to locate her at the address where she was supposed to be residing. They ultimately found her at a business address, where they formed the view that she was providing immigration advice to a client, Kulwant Singh Dhaliwal. They re-arrested Ms. Codina and charged her with two counts of breaching her recognizance and one count of providing advice to Mr. Singh contrary to s. 91(1) of the IRPA (the offence which is now Count 6 on the preferred indictment).

35Subsequently, Mr. Singh left Canada and was living and working in Birmingham, England. Mr. Singh voluntarily came to Toronto to testify at the preliminary hearing. His evidence was heard, in-chief, on September 7, 8 and 9, 2016. There was no further time available to complete the cross-examination. Mr. Singh returned to England. He refused to return to Canada for cross-examination, but agreed to testify via video-link from England. The preliminary hearing judge made an order that the remaining evidence be taken by video-link.

36Mr. Singh duly appeared to be cross-examined at offices in Birmingham on October 31, 2016. His evidence was not completed that day and a further date was set for November 7, 2016. Again, the evidence could not be completed and was scheduled for continuation on November 28, 2016. The cross-examination was completed that day. There was a video-link between the office where Mr. Singh was located (along with a Punjabi interpreter and a CBSA officer) and the courtroom in Toronto (where the preliminary hearing judge presided and the Crown and Ms. Codina were also present along with court staff).

37The CBSA officer in charge of this case made repeated attempts to contact Mr. Singh to make arrangements for his attendance in Toronto for the trial. Mr. Singh refused to come to Toronto and also refused to participate by video-link. He cited financial hardship due to the time he would lose from work, even with the video-link option. He is the sole support for himself, his wife and their two school-age children.

38The Crown brought an application to introduce the evidence given by Mr. Dhaliwal at the preliminary hearing as his evidence at trial, relying on s. 715 of the Criminal Code, or alternatively, on the grounds that the evidence meets the requirements for the principled exception to the hearsay rule at common law.

The Test

39Section 715 of the Criminal Code provides:

715. (1)Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

(a) is dead,

(b) has since become and is insane,

(c) is so ill that he is unable to travel or testify, or

(d) is absent from Canada,

and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

[emphasis added]

40In R. v. Potvin, the Supreme Court of Canada held that the use of the word “may” in section 715 (then s. 643(1)) was deliberate and confers on the trial judge “a discretion to prevent any unfairness that could otherwise result from a purely mechanical application of the section.” ¹⁵ The Supreme Court considered two possible types of mischief at which the discretion might be aimed, as follows:

First, the discretion could be aimed at situations in which there has been unfairness in the manner in which the evidence was obtained. Although Parliament has set out in the section specific conditions as to how the previous testimony has to have been obtained if it is to be admitted under s. 643(1) [now s. 715(1)] (the most important, of course, being that the accused was afforded full opportunity to cross-examine the witness), Parliament could have intended the judge to have a discretion in those rare cases in which compliance with the requirements of s. 643(1) gave no guarantee that the evidence was obtained in a manner fair to the accused. This would, of course, represent a departure from the traditional common law approach that the manner in which evidence is obtained, with a few well-established exceptions such as the confessions rule, is not relevant to the question of its admissibility but it would be consistent with the contemporary approach to the expanded requirements of adjudicative fairness. An example of unfairness in obtaining the testimony might be a case in which, although the witness was temporarily absent from Canada, the Crown could have obtained the witness's attendance at trial with a minimal degree of effort. Another example might be a case in which the Crown was aware at the time the evidence was initially taken that the witness would not be available to testify at the trial but did not inform the accused of this fact so that he could make best use of the opportunity to cross-examine the witness at the earlier proceeding. These kinds of circumstances related to the obtaining of the evidence on the earlier occasion might have been in the mind of the legislator as triggering the judge's discretion with respect to its admission at the trial.

A different concern at which the discretion might have been aimed is the effect of the admission of the previously taken evidence on the fairness of the trial itself. This concern flows from the principle of the law of evidence that evidence may be excluded if it is highly prejudicial to the accused and of only modest probative value: see Noor Mohamed v. The King, 1949 CanLII 437 (UK JCPC), [1949] A.C. 182 (P.C.), at p. 192; R. v. Wray, supra, at p. 295; Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at p. 201. How the evidence was obtained might be irrelevant under this principle. ¹⁶

41The Court then went on to hold that both situations would give rise to the operation of the discretion: (1) where the testimony was obtained in a manner unfair to the accused; and (2) where the admission of the evidence at trial would not be fair to the accused, even though the evidence was fairly obtained. The Court then stressed that “in both situations the discretion should only be exercised after weighing . . . the ‘two competing and frequently conflicting concerns’ of fair treatment of the accused and society's interest in the admission of probative evidence in order to get at the truth of the matter in issue.”¹⁷

42In R. v. Hawkins, the Supreme Court of Canada held that s. 715(1) is not a comprehensive code governing the admissibility of preliminary hearing testimony and that even if the statutory conditions are not met, the trial judge may consider whether the evidence is still admissible applying the principled exception to the hearsay rule.¹⁸

43Under the principled exception to the hearsay rule, hearsay evidence (which includes testimony given in an earlier proceeding or statement) is admissible if it meets the requirements of necessity and reliability. One of the hallmarks for determining the reliability of the hearsay evidence is the availability of cross-examination. As stated by the Supreme Court of Canada in in R. v. Khelawon (at para. 63):

Another way of fulfilling the reliability requirement is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested. Recall that the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. This preferred method is not just a vestige of past traditions. It remains a tried and true method, particularly when credibility issues must be resolved. It is one thing for a person to make a damaging statement about another in a context where it may not really matter. It is quite another for that person to repeat the statement in the course of formal proceedings where he or she must commit to its truth and accuracy, be observed and heard, and be called upon to explain or defend it. The latter situation, in addition to providing an accurate record of what was actually said by the witness, gives us a much higher degree of comfort in the statement’s trustworthiness. However, in some cases it is not possible to put the evidence to the optimal test, but the circumstances are such that the trier of fact will nonetheless be able to sufficiently test its truth and accuracy. Again, common sense tells us that we should not lose the benefit of the evidence when there are adequate substitutes for testing the evidence. [Emphasis added.] ¹⁹

44An interesting question arises as to whether the principled exception to the hearsay rule has effectively supplanted s. 715(1) of the Criminal Code. In other words, if the statutory requirements of s. 715(1) are met, but the twin requirements of necessity and reliability are not met under the common law test, can the trial judge nevertheless exercise a discretion under s. 715(1) to admit the evidence, or would the fair trial and other Charter rights of the accused preclude that? Interesting though that question may be, it is not necessary for me to answer it in this case, and I decline to do so.

45Mr. Dhaliwal was out of the country and could not be compelled by the Crown to return, notwithstanding their considerable efforts to persuade him to do so. The statutory requirement under s. 715(1) is therefore met, and I also accept that the requirement of necessity under the principled exception test is met. The issue here is reliability (under the principled exception test) or whether there was a “full opportunity to cross-examine” (under the statutory test). Regardless of which test I apply, the limitations on the cross-examination of Mr. Dhaliwal were such that I cannot say that the reliability test is met, nor that Ms. Codina had a “full opportunity” to cross-examine.

The Opportunity to Cross-Examine

46Mr. Dhaliwal was a crucial Crown witness on this count, indeed the only witness who could testify as to his discussions with Ms. Codina which constituted the charge against her. His credibility is therefore of critical importance to the defence. The issue is whether there was adequate opportunity for Ms. Codina to test his credibility through cross-examination.

47Although not determinative, I am mindful of three circumstances that would already make it difficult for a jury to assess credibility: (1) they would only have a transcript and would not have the opportunity to see the witness testify and observe his demeanour; (2) Mr. Singh was testifying through a Punjabi interpreter; and (3) the examination-in-chief took place in person over three consecutive days, whereas the cross-examination was by video-link on three separate days removed in time from each other and two months after the examination-in-chief. However, these three circumstances are merely complicating factors. It is the restrictions placed on Ms. Codina’s cross-examination that are most problematic.

48The cross-examination transcripts themselves are lengthy: the October 31 transcript is 190 pages long; the November 7 transcript, 156 pages; the November 28 transcript, 62 pages. However, the page count is deceptive. Many pages would have to be deleted as consisting of submissions by the Crown and defence, rulings by the judge, arguments between the judge and either or both of the Crown and Ms. Codina, and irrelevant interventions by the witness. There were also many discussions about difficulties with the interpreter and problems showing documents on electronic equipment in Toronto so that Mr. Dhaliwal could see them in Birmingham. Therefore, very extensive portions of the transcript would necessarily be removed.

49One of the most valuable tools in cross-examination, particularly when credibility is an important issue, is establishing that the witness made a prior inconsistent statement. Ms. Codina made numerous attempts to cross-examine Mr. Dhaliwal on prior inconsistent statements but was prevented from doing so every time as a result of objections by the Crown, which were upheld by the preliminary hearing judge. Ms. Codina was also prevented from reminding the witness of what his prior evidence was as a prelude to asking further questions.

50The first such occasion arose at page 18 of the October 31, 2016 transcript. At page 17 of the transcript, Mr. Dhaliwal stated that he had told Ms. Codina in September 2015 that he did not want her to submit another immigration application on his behalf. Ms. Codina then suggested to Mr. Dhaliwal (at page 18) that in his previous testimony he had testified that he and his wife had agreed to go ahead with the further proposed application. The Crown objected that this was not a proper question because Ms. Codina was trying “to put words into the witness’ mouth” and that she should not be permitted to do so without a transcript. The preliminary hearing judge ruled that if Ms. Codina was referring back to something the witness said before, she had to “put the exact words to him.” The judge then advised Ms. Codina that she should put the proposition to him “in the form of a suggestion, rather than what he said before.” Ms. Codina then rephrased her question as a suggestion asking, “Is it correct, sir, that your wife conceded to having this last application submitted to try and see if you can get some permit?” The Crown objected again, this time on the basis that Ms. Codina was attempting to elicit hearsay. In answer to the objection, Ms. Codina submitted that she was trying to get Mr. Dhaliwal to agree that although he did not want to proceed, he agreed to do so because of his wife’s intervention. The judge then ruled that the fact that they went ahead spoke for itself, that Ms. Codina already had that evidence, and that she should move on.

51Mr. Dhaliwal had been examined-in-chief on September 7, 8, and 9, 2016. The first cross-examination date was October 31, 2016. No transcripts of the evidence in chief were obtained by either party before the cross-examination. However, both the Crown and the judge were present for the examination-in-chief, and presumably would have had notes. Also, given that this was a continuation of the evidence of the same witness before the same court, I would have thought that his earlier evidence would have been retrievable in the courtroom, or at least it should have been. It was an error to rule that Ms. Codina was not entitled to cross-examine on a prior inconsistent statement without a transcript to confirm the exact words used in the prior evidence. It was also an error to rule that the fact that an application had been made was conclusive that Mr. Dhaliwal had consented to it being filed. Ms. Codina should have been permitted to explore that with the witness. In this particular example, no harm was done because Mr. Dhaliwal eventually volunteered the answer Ms. Codina was seeking. However, these forms of objection (no cross-examination without a transcript and not putting words in the mouth of the witness) were made over and over again through the cross-examination and were upheld by the preliminary hearing judge.

52For example, on, October 31, 2016, Ms. Codina was cross-examining Mr. Dhaliwal about a financial adviser, Malek Badro, whose name appeared on one of the Quebec immigration documents filed. Mr. Dhaliwal had been questioned about this in chief on September 8, 2016 and he stated at that time that he did not know the name, had never heard the name, had never met Mr. Badro, that he was not familiar with the address or phone number and that Mr. Badro was not his financial adviser.²⁰ The cross-examination proceeded as follows:

Q (after referring the reference to Mr. Malek Badro on the document)…First of all, last time you were here, sir, you indicated that you did not know this person, and you did not know anything about this?

Crown: Well, I don’t believe that was what the witness said, Your Honour. I think Ms. Codina has to stop telling the witness what she believes he said on the last occasion unless she has the transcript indicating what he said. It’s really infuriating, Your Honour, because if she has a question to ask him, she can ask the question. If she has something from her notes that she wants to get from him, contrary to what he said, may have said, that she has in her notes.

The Court: Okay. Well, I think the way around this problem is what I’ve been suggesting all along. Miss Codina was there, she knows what her version of the facts are, and she can put suggestions to the witness without referring back to what he might have said before. I mean what he said before is – will be available on transcript, and if it contradicts what he says today, that’s a matter for submissions, and I think that’s the way to get around this problem.²¹

53Similarly, on November 7, 2016, Ms. Codina put to the witness that he had left Canada and entered the United States on November 29, 2014 and then returned on the same day. Mr. Dhaliwal answered that he returned the next day. The following exchange then occurred:

Q. Well, sir, did you not testify earlier, when [the Crown] asked you questions ---

Crown: Well, Your Honour, perhaps Ms. Codina could just ask the question rather than going through all of it. I don’t know what the issue is. He’s indicated he went to the United States, he came back. Whether he came back the same day or the next day, according to him, there’s some issue. So ---

The Court: Okay. Thanks very much. Yes, I think that given the experience we’ve had so far in this case, it’s better just to put … the information to the witness, rather than going back to talk about what he might’ve said before. And so just put it in the form of a question...²²

54In fact, there had been a prior inconsistent statement by the witness. He stated in his evidence in chief that he entered Canada from Buffalo at the Peace Bridge on November 29, 2014.²³

55I am not sure what, if anything, would be the result if Ms. Codina had been permitted to cross-examine on prior inconsistent statements and to remind the witness of his earlier testimony from time to time. However, these were blanket rulings made at the outset of the first two days of the cross-examination and could well have affected the whole of the cross-examination.

56At pages 26-45 of the October 31, 2016 transcript, Ms. Codina attempted to explore issues relevant to the witness’ animus and possible motivation to lie or exaggerate. In particular, she sought to put to the witness that he was interested in getting a refund of the money and that it was the CBSA officer who interviewed him who first suggested to him that Ms. Codina was acting illegally. The Crown objected that what the officer said to Mr. Dhaliwal was irrelevant. Initially, the preliminary hearing judge ruled that this was relevant to motive and allowed the question, which was correct. However, as things progressed, there were more objections by the Crown and further rulings that were not correct. Mr. Dhaliwal testified that someone from Mississauga Immigration called him and told him that Ms. Codina did not have permission to give “immigration advice.” Ms. Codina then asked Mr. Dhaliwal if the CBSA officer told him what the term “advice” meant. The Crown objected and the judge ruled that the witness could not answer the question because what constituted advice was for the court to determine. Ms. Codina, however, was attempting to determine what had been said to Mr. Dhaliwal to support her argument that he tailored his evidence accordingly. She was not permitted to pursue that point, which I find to be unfair. Ms. Codina then took Mr. Dhaliwal to the point in the transcript of his interview with the CBSA where he asked the CBSA if Ms. Codina was a “total fraud” and the officer answered, “That’s our conclusion, but that has not been proven in court.” She asked Mr. Dhaliwal if this exchange occurred during a discussion in which Mr. Dhaliwal was asking if the officer could assist in getting his money back. The Crown objected. Ms. Codina explained that she was attempting to get at the motivation of Mr. Dhaliwal to testify against her in the manner that he had. The judge ruled that the officer’s motivation was irrelevant, apparently misunderstanding Ms. Codina’s position. She required Ms. Codina to move on to a different point. Thus, Ms. Codina’s questioning on this point was interrupted by repeated Crown objections and limited by the court. She started this line of inquiry at page 26 and was directed to move on at the end of page 45. During those 20 pages of the transcript, there are only 4 ½ pages of transcript that could go to the jury, and the bulk of that is simply reading portions of the statement to the CBSA in order to set the stage for the questions that followed. This is a common problem throughout the three cross-examination transcripts.

57Many of the objections made by the Crown, particularly in the first two days of cross-examination, were without any foundation. Some examples follow:

October 31, 2016

Page 92 (regarding where Timur Khaliullin sat):

A. It was only one office where Renee used to sit, and then there’s a separate place where used to be a printer, and this person used to be there helping and filling out the form.

Q. You’re saying that there was a separate officer where he used to sit, there was a computer and he used to fill in these forms?

Crown: Your Honour, I don’t think Ms. Codina should be rewording the witness’ answer.

Page 93:

Q. I’m asking you, sir about Mr. Timur, his office. He occupied a separate office from Ms. Renee, is that correct?

Crown: Your Honour, Ms. Codina cannot give evidence.

Page 110 (regarding a lawyer in the office who Ms. Codina alleged was assisting Mr. Dhaliwal):

Q. I’m asking what interaction you had with her, you yourself.

A. I didn’t have any interaction with her. She had interaction with Renee.

Q. Okay. And you saw her having interaction with Renee on your case, is that correct?

Crown: Your Honour, that isn’t what he said.

Page 139 (regarding a work permit application made in Quebec in March 2015):

Ms. Codina asked the witness (at line 20) about receipts introduced by the Crown in chief and whether two payments of $8750 related to a particular application.

The Crown objected that Ms. Codina should be specific about which payments were being referred to and the Court directed (at p. 140, line 28) that they be broken down one payment at a time.

Ms. Codina proceeded to ask about specific payments (p. 141).

The Crown then objected that it was not possible for Mr. Dhaliwal to differentiate between payments.

Page 150:

Q. Well sir. . . did you not understand that there were two ways that you can file with a consulate----(Crown interrupts)

Crown: His understanding of didn’t you understand there were different ways to file, that’s an outrageous question to ask this witness. He goes to Miss Codina for immigration advice, and then she puts the responsibility on him?

Page 150-151:

Q. Were you informed, sir,…that you might be required to attend an interview at the consulate, and that if you filled it in online, that a decision could be rendered quicker, within two weeks?

Crown: Your Honour, this is an outrageous question … I don’t know how he could possibly answer this question, did you understand, were you told.

Page 180:

Q. Did you ever meet this gentleman at the offices of Ronson Professional?

A. No.

Q. But, so you’re telling the court then that you never went ---(Crown interrupts)

Crown: Your Honour, that’s an outrageous way to put the question.

November 7, 2016

Page 38:

Q. Sir, your wife was present with you, was she not, at that interview?

A. What’s that?

Q. Your wife, your wife was present with you?

Q. Yes. Sure.

Q. And your wife has a better command of the English language than yourself, is that true?

Crown: Well, your Honour, we can’t now start asking questions about Mrs. Dhaliwal’s understanding or her participation. She’s not before the court, so if that’s where Ms. Codina is going …

Page 65:

Q. And now, when you went to the border in Lacolle in February, did the officer . . .advise you, on a visitor record that you can’t work and your children going to school?

Crown: I don’t know where Ms. Codina is getting this from, but if it’s her evidence, that’s not permitted….it’s hearsay from Miss Codina’s mouth, asking the witness to comment on hearsay.

Page 85 (regarding Paul Eyouck, who Ms. Codina alleged to be Mr. Dhaliwal’s counsel):

Q. Did you get a business card with Mr. Paul’s name and address and telephone from him?

Crown: Your Honour, this question was asked last time. [an incorrect assertion]

Page 86-87:

Q. Sir, is it not true that you called Mr. Eyouck to inquire about the appeal that he had filed on your case in Montreal?

Crown: Your, Honour, this appeal has nothing to do with anything before the court.

The Court: I know what your opinion is about this appeal. I’ve made a ruling that it relates to her defence to the charge [referring to an earlier ruling on the same issue]

58Most of these objections by the Crown were overruled by the preliminary hearing judge. Nevertheless, the objections disrupted the flow of the cross-examination and considerable time was spent dealing with them.

59Another concern I have about the cross-examination is the extent to which the preliminary hearing judge intervened and completely took over the cross-examination herself – not always in the same direction or manner as the accused herself might have done.²⁴

60Finally, there is an over-arching concern about the failure to exclude the witness when objections were made about questions asked. As I have noted, many of the objections by the Crown were not appropriate. Some, but not all, of those objections were upheld by the preliminary hearing judge. In all cases, submissions were heard about the purpose of the question and why it was proper or improper. Ms. Codina made the request that the witness not be permitted to hear those discussions. The preliminary hearing judge directed that the interpreter simply not translate what was being said. I realize that Mr. Dhaliwal’s mother tongue is not English. However, he does understand some English. Many of the things discussed were matters of routine, and there would be no prejudice to the witness knowing what was said. Other areas were considerably more sensitive and it would have been preferable if the witness could not hear them.

61I went through all 191 pages of transcripts and drew a line through all the portions that related to questions Ms. Codina was not permitted to pursue, objections by the Crown, submissions by Ms. Codina and the Crown and statements and rulings by the preliminary hearing judge, as well as irrelevant interjections about details like timing, difficulties with the equipment and issues with the interpreter. My rough tally is that there were approximately 86 pages of cross-examination transcript that could be put before the jury.

62I recognize that the role of the preliminary hearing judge is quite different than that of a trial judge and that many of her rulings about the evidence were influenced by that. The preliminary hearing judge advised at the outset that credibility, and therefore the motivation of the witness to lie, were not relevant issues for the preliminary hearing. However, she also stated that one of the purposes of the preliminary hearing was to provide a limited type of discovery for the accused and that she would therefore be permitting some questions of this type in order to reflect that. She cautioned, however, that because discovery was only a secondary purpose of the preliminary hearing, this latitude in cross-examination would not be limitless.²⁵

Conclusion

63As I indicated at the outset, there were already a number of weaknesses in using this transcript instead of having Mr. Dhaliwal testify in person, including that there would only be a paper transcript, making it difficult to draw conclusions about credibility without seeing or hearing the witness, the separation in time between the examination-in-chief and the three separate cross-examination dates, and the fact that the evidence was taken by video-link through an interpreter. On top of these problems inherent in the nature of the process itself, the manner in which the cross-examination was conducted is problematic. The transcript is chopped up by interventions by the Crown, many of them inappropriate. The preliminary hearing judge also made rulings that seriously restricted Ms. Codina’s right to a full cross-examination. Taking all of these factors cumulatively into account, I am not satisfied that the cross-examination Ms. Codina was able to conduct at the time was an adequate substitute for cross-examination of a live witness in front of the jury at trial. In my view, this impacts the accused’s right to a fair trial on this particular charge.

64Accordingly, I dismissed the Crown’s application to introduce at trial the transcript of Mr. Dhaliwal’s testimony at the preliminary hearing.

Footnotes

1. 1For a more detailed background, see R. v. Codina #1, 2017 ONSC 7162.
2. 2Immigration and Refugee Protection Act, S.C. 2001, c. 27.
3. 3See R. v. Codina #1, ONSC 7162; R. v. Codina #2, 2017 ONSC 7236; R. v. Codina #3, 2017 ONSC 7561; R. v. Codina #4, 2017 ONSC 7315.
4. 4R. v. Andalib-Goortani, 2014 ONSC 4690, [2014] O.J. No. 4499.
5. 5R. v. Shayesteh, 1996 CanLII 882 (ON CA), 31 O.R. (3d) 161 (Ont. C.A.).
6. 6Transcript of Conversations February 22, 2013 (Applicant’s Materials, Transcripts of Conversations Recorded by Ioanna Mourtzis, Tab 1), pp. 18-19.
7. 7Ibid, p. 43.
8. 8Ibid, p. 44.
9. 9Ibid, p. 46.
10. 10Ibid, p. 72.
11. 11Ibid, p. 80.
12. 12Ibid, p. 80.
13. 13Ibid, line 18.
14. 14Ibid, line 20.
15. 15R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525 at para. 28.
16. 16Ibid at paras. 29-30.
17. 17Ibid, citing Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, at pp. 392-93.
18. 18R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043.
19. 19R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at para. 63.
20. 20Preliminary Inquiry transcript dated September 8, 2016 (Applicant’s Materials, Application Record Vol. 2, Tab 2), p. 90.
21. 21Preliminary Inquiry transcript dated October 31, 2016 (Applicant’s Materials, Application Record Vol. 3, Tab 4), p. 170.
22. 22Preliminary Inquiry transcript dated November 7, 2016 (Applicant’s Materials, Application Record Vol. 3, Tab 5), p. 5.
23. 23Preliminary Inquiry transcript dated September 7, 2016 (Applicant’s Materials, Application Record Vol. 2, Tab 1), p. 81.
24. 24Preliminary Inquiry transcript dated October 31, 2016, pp. 75-78, 111, 113, and 176, and Preliminary Inquiry transcript dated November 7, 2016, pp. 63 and 97).
25. 25Preliminary Inquiry transcript dated October 31, 2016 (Applicant’s Materials, Application Record Vol. 3, Tab 4), pp. 14-15.