Superior Court of Justice
CITATION: R. v. Codina #3, 2017 ONSC 7561
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
Lynda Trefler and Vanita Goela, for the Crown
In person
HEARD: September 18, 19, 20, 22, 25 and 26, 2017
MOLLOY J.:
REASONS FOR DECISION #3
(Charter Challenges: arrest, search and seizure, disclosure)
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 eventually 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] Ms. Codina was arrested by Canada Border Services Agency ("CBSA") officers on May 8, 2014 pursuant to an arrest warrant issued by a Justice of the Peace on May 7, 2014. Ms. Codina was 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 contrary 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 applications under sections 7, 8, 9 and 24 of the Charter challenging the legality of her arrests, the legality of searches and seizures by the CBSA and alleged breaches by the Crown of its duty to make full and fair disclosure.
[7] After hearing some viva voce evidence, as well as reviewing the relevant documentary evidence filed, and hearing submissions, I ruled that the arrests were valid, as was the search warrant and the related searches and seizures. Further, I ruled that the Crown had made full and proper disclosure. Accordingly, I advised that Ms. Codina's Applications #5 and 6 were dismissed, with written reasons to follow. Those reasons are set out below.
[8] Some of Ms. Codina's arguments on the search and seizure flowed from her position that the CBSA officers who arrested her and conducted the search had no jurisdiction to do so. I dealt with the issues relating to the powers and jurisdiction of the CBSA officers in R. v. Codina #1. In that decision, I held that the CBSA officers who investigated the IRPA offences and arrested and charged Ms. Codina, as well as those who obtained and executed the search warrant were acting within their jurisdiction.[^3]
B. THE MAY 7, 2014 ARREST WARRANT
[9] The May 7, 2014 warrant for Ms. Codina's arrest was obtained by CBSA officer Steven Bean. Officer Bean attended before a Justice of the Peace in Toronto to obtain the arrest warrant, based on four charges under s. 91(1) of the IRPA and one charge under s. 126 of the IRPA. Officer Bean attended in person to obtain the warrant and did not file an affidavit. However, there was an audio recording of the appointment with the Justice of the Peace, which was an exhibit before me on the voir dire. Four CBSA officers testified at the voir dire, including Officer Bean.
[10] Ms. Codina conceded that Officer Bean subjectively believed he had reasonable and probable grounds to lay these five charges. However, she argued that there was no objective basis for that belief. Ms. Codina's argument in that regard is primarily based on her understanding of the law and how it applies to her defence. In particular, she argued as follows:
(i) She supplied only information to the complainants, not advice.
(ii) She received no payment, as all of the fees were paid to the company she owned and controlled.
(iii) Anything that happened at the initial consultation was free of charge and therefore not advice for consideration.
(iv) It was the company that was retained by the complainants, and not her personally, and the company employed licensed lawyers and registered immigration consultants.
(v) The charges were defective because of the parties who were named as complainants.
(vi) Charges could only be filed in respect of immigration applications that were actually filed with the government.
(vii) With respect to the counselling charge, the complainant must have been persuaded to make the misrepresentation and some steps in furtherance of the misrepresentation had to have been taken before there was a basis for the charge.
[11] I do not accept any of these interpretations of the law advanced by Ms. Codina. These legal issues were recurring themes throughout the trial and were the subject of numerous rulings by me as to the relevance of evidence, as well as rulings I made in relation to the content of my final charge to the jury. Also, all of these points were the subject of a motion by Ms. Codina at the close of the Crown's case for a directed verdict of acquittal, which I dismissed. My reasons for the dismissal of the directed verdict motion include my analysis of the law on these points (see R. v. Codina #6 2017 ONSC 7648) and I will not repeat that here.
[12] Officer Bean assumed carriage of the investigation of Ms. Codina on April 14, 2014. Prior to that, the lead investigator was OBSA Officer Darrell Morrissey, who had carriage of the file from its inception in September 2011. Officer Morrissey also testified on the voir dire, having been produced by the Crown at the request of Ms. Codina for cross-examination.
[13] After taking over the file, Officer Bean conducted a complete review of it, consisting of witness interviews, video-taped KGB statements of witnesses (including complainants in respect of all five charges that were laid on May 7, 2014) and documents obtained. He then recommended to his supervisors that the charges be laid, and he personally attended to that as well as obtaining the arrest warrant. Ms. Codina was critical of the fact that this was the first time Officer Bean had ever laid a charge under this provision and that he did no investigation of his own before doing so. I see no merit in that argument. The level of experience of the officer is immaterial. The only question is whether he carried out his duties appropriately. There is no requirement that he undertake his own independent investigation. There was more than adequate information already in the CBSA investigation file. By familiarizing himself with the evidence gathered already, Officer Bean was able to satisfy himself as to whether he had reasonable and probable grounds to arrest and charge Ms. Codina. Further, on an objective basis there was ample evidence to support those charges, including:
(i) witness statements and documentation from at least one complainant in respect of each of the first four counts indicating that they met with Ms. Codina and received immigration advice directly from her;
(ii) evidence that substantial sums were paid to the corporation in respect of immigration services provided or promised in relation to all of the s. 91(1) counts;
(iii) evidence that Ms. Codina was the sole officer, director and shareholder of the corporation involved and had exclusive control over its bank accounts; and,
(iv) an audio recording of Ms. Codina meeting with Mr. Mouzos (the complainant on Count 3) in which she gave direct advice to him about his immigration application as well as an opinion as to its likely success and agreed to take personal charge of his file;
(v) audio recordings of several meetings between Ms. Codina and Mr. Abolvahabi (the complainant on the s. 126 charge) in which she can be heard to counsel numerous misrepresentations in immigration applications she was recommending.
[14] Ms. Codina also argued that Officer Bean failed to provide relevant information to the Justice of the Peace, including any mention of the involvement of the corporation and the fact that the corporation had employees who were licensed lawyers and registered immigration consultants. I do not agree that any of the omissions she pointed to were relevant. The officer is not obliged to recount every scrap of evidence contained in the extensive CBSA file. In any event, even if the evidence she urged should have been disclosed had actually been disclosed, the charges would still have been filed and the arrest warrant would still have been issued.
[15] Ms. Codina also alleged misrepresentations by Officer Bean to the Justice of the Peace, most notably his statement that substantial amounts of money were paid by the clients and then nothing happened. There was some evidence in respect of some counts that some work was done by somebody. If I were to correct the record by detailing all of the work that was known to be done by anyone on any of the files involved, it would have no impact whatsoever on the charges against Ms. Codina. Neither she nor the firm was charged with fraud or overbilling or failing to perform services for which they were contracted. It is irrelevant to any of the counts that work could have been done by someone else, whether that person was licensed or not. Ms. Codina was charged only with what she personally did, not with respect to what other people did, and not with respect to anything that was not done. The statement that money gets paid and "nothing happens" might have been an overstatement, but it could not have had any effect on the result.
[16] I am satisfied that there were reasonable and probable grounds with respect to all of the charges.
[17] I am also satisfied that there was accurate information before the Justice of the Peace as to the advisability of issuing a warrant for Ms. Codina's arrest rather than merely a summons to appear. The CBSA had complaints from numerous individuals (not just the named complainants) about Ms. Codina providing immigration advice. They conducted surveillance on Ms. Codina and interviewed the manager of her office space. Based on the information obtained by the CBSA, Officer Bean advised the Justice of the Peace that Ms. Codina was continuing to carry on business and lots more people would be victimized. He pointed out that the website advertising the services offered was also continuing to operate. He advised that a number of people were suing Ms. Codina in Small Claims Court and that there had been two warrants issued with respect to her failure to appear in civil court. He told the Justice of the Peace that Ms. Codina had already received substantial sums of money, had property overseas and travelled frequently. He also advised that Ms. Codina had a prior conviction in the United States for giving immigration advice without a license, for which she had been sentenced to 5-15 years and that she was still on parole in relation to that offence. Officer Bean testified that he was concerned that a mere summons to appear would not be sufficient because conditions could not be attached to it. He argued before the Justice of the Peace that it was in the public interest to issue a warrant for Ms. Codina's arrest.
[18] I am satisfied that the officer had reasonable and probable grounds to seek the arrest warrant. There was ample information before the Justice of the Peace to support his conclusion that it was in the public interest to issue a warrant for Ms. Codina's arrest. It was validly issued.
[19] Accordingly, I find no breach of Ms. Codina's Charter rights in relation to the May 7, 2014 arrest warrant.
C. THE SEPTEMBER 17, 2015 WARRANTLESS ARREST
[20] Ms. Codina was released on bail with conditions that included that she reside with her mother at an address in Hamilton and that she not be out of that residence unless in the company of one of her two sureties (her mother and her sister Renee). There were also exceptions to the house arrest provision for attending court, meeting with her lawyer or "for purposes of complying with this or any other court Order." Another condition of her bail was that she "not counsel, advice [sic] or represent any person for immigration issues."
[21] In mid-September 2015, process servers made several attempts to serve documents on Ms. Codina at her residence in Hamilton but found nobody at home. They were advised by a neighbor that Ms. Codina was living in Toronto and visiting her mother in Hamilton on weekends. On September 17, 2015, CBSA officers Bean and Morrell followed up this information. They spoke to Ms. Codina's mother at her home in Hamilton and were told that Ms. Codina was in Toronto and that her other daughter, Renee, was in the United States. From this, the officers were concerned that Ms. Codina might be in breach of the house arrest condition in her bail order. In my view, that was a reasonable concern.
[22] Next, the officers went to the address of a condominium where Ms. Codina previously resided in Toronto. The concierge for that building told them that Ms. Codina was residing there and that he had last seen her the day before. The officers then tracked down a business office on King Street where they discovered that Ms. Codina, through another corporation, had been renting office space on the 56th floor for the prior 10 months. The 56th floor itself was rented by a corporation named Regus International, which in turn rented office space to various short term tenants. The Regus receptionist told the officers that Ms. Codina was renting space there and that he understood the business was providing legal services. He said that she was in her office at that moment meeting with clients. This information was confirmed by the office manager of Regus. He went to advise Ms. Codina that the officers were there and gave them permission to enter the common hallways of the office space. The manager also told the officers that the clients had just left Ms. Codina's office and were now in the kitchen area.
[23] Officers Bean and Morrell met Ms. Codina in the hallway outside her personal office. Officer Morrell testified that he then left Ms. Codina with Officer Bean and went to the kitchen, where he spoke with a man and a woman who had just before that been meeting with Ms. Codina.
[24] Officer Morrell testified that the man identified himself as Kulwant Singh Dhaliwal. Officer Morrell asked Mr. Dhaliwal if he had just been meeting with Ms. Codina, but Mr. Dhaliwal appeared not to be familiar with the name, repeating it back as "Colina." However, upon further questioning with respect to the person he had been meeting, Mr. Dhaliwal provided information, including a physical description, from which Officer Morrell was satisfied that the person the Dhaliwals had met with was Ms. Codina. Mr. Dhaliwal told the officer that they had met with Ms. Codina, that the reason they were there was to see about extending a visa and that they had just met with Ms. Codina for about 20 minutes. He also told the officer that they had paid Ms. Codina about $40,000 so far, and showed him a retainer agreement dated December 3, 2014 indicating an initial payment of $5000.00 had been made at that time.
[25] Officer Morrell testified that based on this information he formed the view that Ms. Codina had been providing immigration advice to Mr. Dhaliwal without being licensed in breach of s. 91(1) of the IRPA and that this was also a breach of one of the conditions of her bail which stipulated that she not provide immigration advice. Officer Morrell returned to the hallway where Ms. Codina was being detained by Officer Bean and immediately placed her under arrest for breaching the conditions of her bail.
[26] Meanwhile, Officer Bean had been speaking with Ms. Codina in the hallway. He testified that Ms. Codina told him that she was there to get some documents printed for a Small Claims Court proceeding and also that her lawyer was coming "later." He agreed on cross-examination that he did not ask to see the documents. He also agreed that he did not ask Ms. Codina if she had been meeting with Mr. Dhaliwal, explaining that it would not be appropriate to do so while she was being detained and before she had been given her rights to counsel, which is correct. Ms. Codina called Mr. Freeman on her cell phone and Officer Bean spoke to him. Officer Bean testified that his recollection was that Mr. Freeman (who was a lawyer, but whose license was suspended) told him something like that he was coming at the end of the day. On cross-examination, Ms. Codina asked him if it was possible that Mr. Freeman said he was "on his way" and he accepted that this was possible. At that point, Officer Morrell arrived and placed Ms. Codina under arrest for breaching a condition of her bail by providing immigration advice.
[27] I am satisfied that Officer Morrell subjectively formed the view that Ms. Codina had been giving immigration advice to Mr. Dhaliwal, in breach of the IRPA and in breach of the terms of her bail. Ms. Codina sought to challenge his testimony by arguing that it was inconsistent with the KGB statement and preliminary inquiry testimony given by Mr. Dhaliwal. She did not file either of these in her material, but the Crown filed the preliminary hearing transcripts on the motion to have the transcripts admitted as Mr. Dhaliwal's evidence at trial.[^4] In her factum, Ms. Codina asserted at para. 23 that:
Mr. Dhaliwal also stated in his KGB statement and at the preliminary inquiry that he had been at the office premises that day for only 5 or 10 minutes and that he had not discussed anything as the Applicant [Ms. Codina] was busy looking after some other matter, and the officers showed up within 5 to 10 minutes after his arrival at the office.
[28] Contrary to the assertions in Ms. Codina's factum, Mr. Dhaliwal's evidence at the preliminary was consistent with the testimony of Officer Morrell. Mr. Dhaliwal testified that he spoke to the immigration officer in the kitchen. Prior to that he said he and his wife had been meeting with Ms. Codina in her office and that she asked them to go to the kitchen because an emergency had come up. Mr. Dhaliwal testified that he told the officer they were there for immigration purposes, that they had paid approximately $40,000 at that point, and that he showed the officer some receipts. He said he had been in the meeting with Ms. Codina for "maybe 10, 20 minutes, 15, 20 minutes."[^5] Mr. Dhaliwal also testified that he had met many times before with Ms. Codina. Although she had identified herself as "Renee" (actually her sister's name), he was absolutely clear that it was Ms. Codina he had been meeting with.
[29] In any event, regardless of the subsequent testimony of Mr. Dhaliwal, on September 17, 2015, Officer Morrell clearly believed that Ms. Codina had been providing immigration advice to Mr. Dhaliwal. The subjective aspect of reasonable and probable grounds to arrest is met. I am also satisfied based on the whole of the evidence before the officers that day that there were objective reasonable and probable grounds to arrest Ms. Codina that day, both for breaching s. 91(1) of the IRPA and for breaching the house arrest bail condition and the condition that she not provide immigration advice while on bail.
[30] Ms. Codina argued that there were no objective grounds for arresting her because the officers failed to make a proper identification that she was the one who had met with Mr. Dhaliwal. There is no merit whatsoever to that argument.
[31] Ms. Codina also argued that she was not in breach of the terms of her bail condition because she was complying with a court order, which is an exception to the house arrest provision. Essentially, she was required to file certain documents by a particular date and she was having them photocopied in the print shop in the concourse level of the office tower. None of that was required in order to comply with a court order. An order to file documents by a certain date could have been complied with in any number of ways that would not require Ms. Codina to violate a condition of her bail. That argument is also wholly without merit.
[32] Further, Ms. Codina argued that she was not in breach because she was meeting with her lawyer. On the face of it, Ms. Codina was not meeting with her lawyer. She was in her own office meeting with a client about an immigration matter. Her "lawyer" was not even in the building. Furthermore, Mr. Freedman did not have a license to practice law at the time.
[33] None of these arguments undercut the strong evidence that was before the officers. They had evidence that Ms. Codina was repeatedly not abiding by the terms of her bail, was not living in Hamilton with her mother, and was carrying on business giving immigration advice. They found her engaged in the very act of giving immigration advice, with her sureties not present, with her lawyer not present, and with no court order compelling her to be there. There were ample objective grounds to arrest her.
[34] I have dealt in another decision with the jurisdiction of CBSA officers as peace officers under the Criminal Code, which would include the power to arrest someone in connection with an immigration matter, and in particular the power to arrest for breach of a bail condition relating to an immigration offence. [^6] However, even if there was no power to arrest for breaching the bail condition, the condition itself was the same as the requirements of s. 91(1) of IRPA and the officers would clearly have the power to arrest her on that ground. Ultimately, she was charged with breaching s. 91(1) as well as two counts of breaching conditions of her bail.
[35] Accordingly, I find that the arrest on September 17, 2015 was lawful and that there was no breach of Ms. Codina's Charter rights.
D. VALIDITY OF THE SEPTEMBER 18, 2015 SEARCH WARRANT
[36] On September 18, 2015, Officer Morrell swore and filed an Information to Obtain ("ITO") a search warrant for the offices leased by Ms. Codina through her company Ronson Professional Group, the office where she had been arrested the previous day. Officer Morrell included in the ITO all of the evidence he had acquired prior to and leading up to the arrest of Ms. Codina the day before. He also provided information given to him by the manager of Regus that Ms. Codina had rented three units at 100 King St. West (#56-051, #56-052 and #56-048) under three business names: Ronson Professional Group; Argus; and CIC Group. The lease on #56-048 went into default and Ms. Codina was removed from that unit, but continued to occupy the other two. The manager told Officer Morrell that he believed Ronson Professional Group was Codina's main business and that her main activities in that office were immigration consulting. The manager also said that he believed Ms. Codina worked closely with a lawyer named James McGuire.
[37] Officer Morrell did a computer search on the database maintained by the CBSA and Citizenship and Immigration Canada ("CIC") for information on Kulwant Singh Dhaliwal. He learned, and set out in the ITO, that applications had been filed with the CIC for Mr. Dhaliwal seeking, inter alia, a work permit and Ronson Professional Group at 100 King St. W., Suite 5600 was designated as his representative for these matters. Officer Morrell also did a Law Society of Upper Canada search to determine whether there was a registration for a lawyer named James McGuire. There was not, although a person named Michael James McGuire had previously been registered and had his license suspended administratively.[^7]
[38] In his ITO, Officer Morrell stated that he believed Ms. Codina was continuing to carry on an immigration consulting business at 100 King St. West and that there would be evidence of such in those offices, which was in danger of being lost if not seized by the CBSA.
[39] I have no doubt whatsoever that this was Officer Morrell's subjective belief. I also find that the ITO sets out objective reasonable and probable grounds for believing that IRPA offences had been committed in those offices and that evidence of such offences, including evidence with respect to Mr. Dhaliwal, would be in the files stored there.
[40] That said, it would have been preferable if there had been some protection included in the search warrant for material that might have been protected by solicitor and client privilege. Ms. Codina was not the only person working there. There could have been other lawyers or immigration consultants employed there and there could have been numerous other clients of Ronson who did not deal with Ms. Codina whose personal information was deserving of protection.
[41] However, as a practical matter, there was no such breach of privacy in the execution of the search warrant. The files were seized and catalogued. The files relating to Mr. Dhaliwal were retained, with his permission. Any privilege in the files belonged to him. Ms. Codina can have no solicitor and client privilege in such files (even assuming that could arise given that she is not a licensed lawyer).
[42] Officer Morrell subsequently sought a search warrant to search cell phones and computers that were seized. That request was refused by Shoniker J. for written reasons that raised concerns about confidentiality as I have noted above. No attempt was made thereafter to search the computer or phones. The files that did not relate to Mr. Dhaliwal were returned to Ms. Codina.
[43] Accordingly, in my view there was reliable evidence before the Justice of the Peace who issued the search warrant to justify its issuance. Indeed, I would have done the same thing, although with some provision for a neutral third party to review the material prior to giving it to the CBSA so as to protect privacy and confidentiality interests of others. In the result, however, there was no breach of such interests. Finally, neither the search warrant itself, nor the seizure of materials pursuant to that search warrant, breached any Charter rights of Ms. Codina.
E. OTHER SECTION 8 VIOLATIONS ASSERTED
[44] Ms. Codina argued that the CBSA violated her s. 8 rights by obtaining from the Law Society of Upper Canada information about the parties named in the counts on the indictment, in breach of privacy legislation and in circumstances where the Law Society was providing information for a purpose not consistent with the purpose for which it had been provided to the Law Society. There is no merit to this argument and it can be disposed of by one simple fact – all of those individuals consented to the release of their information to the CBSA. In addition, the privacy legislation cited expressly provides for the release of information for the purposes of law enforcement. In any event, any privacy interest that attached was not that of Ms. Codina.
[45] Ms. Codina also argued that her s. 8 rights were breached by the CBSA accessing immigration files held by the CIC. She maintained that such files were protected by privacy legislation and also by solicitor and client privilege because they contained the opinion of legal counsel.
[46] Dealing with the latter point first, solicitor and client privilege is subject to waiver by the client, which all of the clients in this case did. Secondly, the privilege belongs to the client, not Ms. Codina. Thirdly, no solicitor and client privilege can possibly attach to a document filed with a third party, in this case CIC. These were not the opinions of a lawyer, they were applications to the CIC seeking various things, such as visas, work permits and the like.
[47] In any event, the CBSA is the enforcement arm of the CIC. There is no breach of any right in Ms. Codina if CIC shares information with the CBSA for law enforcement purposes.
F. DISCLOSURE
[48] Ms. Codina alleged that her rights under s. 7 of the Charter were breached by the failure of the Crown to make full and proper disclosure. She relied upon three categories of material: (1) pre-charge communications between Crown counsel and CBSA officers during the investigation; (2) recommendations and communications between Crown counsel and the Offices of the Director of Public Prosecutions and the Deputy Attorney General of Canada with respect to seeking a direct indictment under s. 577 of the Criminal Code; and (3) post-indictment disclosure of an ongoing nature with respect to the involvement of CBSA officers in preparation for trial.
[49] I will deal with these in reverse order. Ms. Codina presented no evidence whatsoever that there are communications or documents of any kind since the date of the indictment that have not been provided to her. The Crown is fully aware of the duty to make ongoing disclosure and has assured the Court that full disclosure has been made. There is no evidence to the contrary, and no reason to believe that anything at all has been kept from Ms. Codina. Any time during the trial that Ms. Codina asserted she had not received a particular piece of disclosure, she was proven to be wrong. This is a baseless accusation by Ms. Codina. It is dismissed.
[50] In the pre-trial motions, Ms. Codina took the position that the preferred indictment was invalid. I rejected that argument in R. v. Codina #2.[^8] Some of her argument on the disclosure motion is caught up with the positions she took on that application. I will not repeat here what I have already ruled in the other application, save to say that I found s. 577 of the Criminal Code to be constitutional and the preferred indictment to be valid.
[51] Ms. Codina seeks disclosure of communications between Crown counsel and the person who preferred the indictment. First, I see no relevance in anything that passed between Crown counsel and the Director of Public Prosecutions prior to the indictment being signed. Second, any such communications would clearly be protected by solicitor and client privilege.
[52] The same applies to the communications between Crown counsel and the CBSA officers at various stages of the investigation. Communications between Crown counsel and their clients are privileged. Ms. Codina is simply not entitled to know the nature of the advice given by the Crown to the officers. The case law she has cited with respect to the innocence at stake exception has no application to these circumstances. Likewise, there has been no waiver of the privilege. The case law she cited relating to clients seeking to defend themselves by saying they relied on legal advice is completely unrelated. Nothing like that happened in this case.
[53] To the extent there are issues about disclosure that are relevant to the abuse of process argument, those issues are deferred to be dealt with at that time.
[54] However, in all other respects, I find no breach of the Crown's disclosure obligations and no breach of Ms. Codina's s. 7 Charter rights in that regard.
G. CONCLUSIONS
[55] Some of the arguments in Ms. Codina's materials on Applications #7 (disclosure) 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.
[56] In all other respects, Ms. Codina's Applications #5, #6; and #7 are dismissed.
MOLLOY J.
Released: December 22, 2017
CITATION: R. v. Codina #3, 2017 ONSC 7561
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, at paras. 15-34. [^4]: R. v. Codina #5, 2017 ONSC 7323. [^5]: Preliminary Inquiry transcript dated September 9, 2016 (Applicant's Materials, Vol. 2, Tab 3), p. 59-60. [^6]: R. v. Codina #1, 2017 ONSC 7162. [^7]: Nothing turns on this, but later information showed James McGuire to be a New York lawyer, with no license to practice in Ontario. [^8]: R. v. Codina #2, 2017 ONSC 7236.