CITATION: R. v. Codina #6, 2017 ONSC 7648

COURT FILE NO.: 16-9-761

DATE: 20171229

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ANGELINA MARIE CODINA

Defendant/Applicant

Lynda Trefler and Vanita Goela, for the Crown

In person

HEARD: September 11, 12, 13, 14, 15, October 10, 11, 19, 24, 25, 30, 31, November 1, 2, 3, 6, 7, 8, 9, 10, 15, 16, 17, and 20, 2017

MOLLOY J.:

REASONS FOR DECISION #6

(Interpretation of ss. 91(1) and 126 of IRPA and Motion for Directed Verdict)

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. In May, 2014, 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] A second set of charges was laid against Ms. Codina in September, 2015 relating to one further count of providing advice on an immigration matter and two counts of breaching conditions of her recognizance.

[3] 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 had 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).

[4] The matter was scheduled for trial before a jury to commence on September 11, 2017. Ms. Codina filed nine pre-trial applications and the Crown filed four. One of the Crown’s applications sought to admit the preliminary hearing transcript of Kuwant Singh Dhaliwal (the complainant in Count 6 on the preferred indictment) as his evidence at trial. I dismissed that application,[^3] as a result of which the Crown stayed Count 6. Therefore, the trial proceeded before me based only on five counts: four under s. 91(1) of the IRPA (each count involving different complainants) and one under s. 126 of the IRPA (involving the same complainant as the Count 4 charge under s. 91(1)).

[5] I dismissed all of the pre-trial motions brought by Ms. Codina.[^4] In one of Ms. Codina’s applications, she challenged the constitutional validity of ss. 91 and 126 of the IRPA. Some of her arguments were based on what she urged was the proper interpretation of those provisions. I rejected her argument that these provisions violated her rights under s. 7 of the Charter as being overly broad and vague. In my view, this was merely a matter of the correct interpretation of the language used in those provisions.[^5]

[6] Jury selection began on October 5, 2017 and evidence commenced on October 10, 2017. At various points during the trial, Ms. Codina continued to put forward her interpretation of those same provisions as she had argued previously, including with respect to the admissibility of evidence and lines of cross-examination on which I had already ruled. On November 2, 2017, after the close of the Crown’s case, Ms. Codina sought a directed verdict of acquittal, again based on those same arguments, in support of which she filed, inter alia, 186 pages of written argument which she had filed at the preliminary hearing on the issue of whether she could be committed for trial. After two days of argument (almost all of it by Ms. Codina), I dismissed that application. Ms. Codina elected to call evidence from several witnesses, but did not testify in her own defence. Finally, in pre-charge submissions and again in objections to the charge after I had delivered it to the jury, Ms. Codina repeated the same arguments with respect to the interpretation of these provisions.

[7] In these reasons, I will deal with what I consider to be the correct interpretation of the language used in ss. 91(1) and 126. These reasons apply to: the arguments Ms. Codina made with respect to the constitutional validity of ss. 91(1) and 126; Ms. Codina’s argument that the arrest warrant did not disclose reasonable and probable grounds to arrest her; various evidentiary rulings I made during the trial; the legal instructions I gave to the jury at various points during the trial and in my final charge; and the dismissal of the motion for a directed verdict.

B. UNDERLYING FACTS

[8] Before turning to the statutory provisions in question, it is helpful to set out the general factual backdrop underpinning the charges before the Court. Ms. Codina was the sole officer, director and shareholder of a corporation (“Codina International”) with business offices in Toronto and elsewhere in Canada and abroad. Codina International placed advertisements in various ethnic, foreign language newspapers circulated in Toronto and the surrounding area offering immigration services. The advertisements did not name Ms. Codina personally, but claimed to have 30 years’ experience in the field. Typically, the advertisements offered a free initial consultation.

[9] Codina International employed a number of people at its Toronto office. Some of those were regular office staff. Others, labelled as “language consultants,” were hired for their facility in various languages and served as translators and contact persons for clients. None of these individuals were licensed to provide immigration advice. However, Codina International did have some lawyers and licensed immigration consultants on staff from time to time. None of those lawyers or consultants had anything approaching 30 years’ experience in providing Canadian immigration advice.

[10] Prospective clients who contacted Codina International were given an appointment to come for a consultation. They would initially be met by a staff person. The four individuals who are the complainants in the charges before the court also met with Ms. Codina, either in person or via Skype. These prospective clients would provide background information about the person seeking to immigrate to Canada and, based on that information, they would be told about programs offered by Canada Immigration for which they might qualify. Fee schedules were provided for these various programs. Typically an initial down payment was required to start preparing the material and then a further installment payment before anything was filed with Canada Immigration. If the client decided to proceed, a retainer agreement would be signed with Codina International, specifying the program to be applied for and agreeing upon the schedule for the payment of fees.

[11] All fees were paid to Codina International and deposited to the corporate bank account of Codina International. Ms. Codina had sole control over that bank account.

[12] If an application was filed with the government, and if a “representative” or person assisting in completing the forms was named in that application, the person named would be either a lawyer or licensed immigration consultant. The client might, or might not, have ever met the lawyer or consultant named. With respect to one of the clients for whom an application was filed, the lawyer named as having assisted in completing the application was not employed by Codina International and denied having signed the form.

[13] One of the clients, Farhad Abdolvahabi, recorded almost all of his meetings with Ms. Codina and others at Codina International. Mr. Abdolvahabi retained Codina International to bring his wife’s sister and her husband to Canada from Iran. Ms. Codina was charged in Counts 4 and 5 with providing immigration advice to Mr. Abdolvahabi and his relatives in Iran, and also with counselling Mr. Abdolvahabi to make misrepresentations in an immigration application.

[14] Counts 1, 2 and 3 each relate to a different client or client group who, it is alleged, received immigration advice from Ms. Codina.

C. GENERAL PRINCIPLES OF STATUTORY INTERPRETATION

[15] The modern rule of statutory interpretation is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” The Supreme Court of Canada has consistently applied this principle and noted in BellExpressVu that “in the federal legislative context, this Court’s preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” [^6]

[16] These principles of interpretation have been applied in numerous cases arising under immigration legislation. The Supreme Court has held that context is an essential consideration in interpreting provisions of immigration laws and that it is relevant to take into account the legislative history of the particular provision in question, as well as its place in the overall scheme of the Act, the object of the legislation, and Parliament’s intention in enacting both the provision in question and the Act as a whole.[^7]

[17] The first source for the object of the legislation as a whole is the statute itself. Section 3 of the IRPA lists 11 objectives with respect to immigration and 8 objectives with respect to refugees. Among the objectives for immigration are the following:

(a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;

(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

(e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society…

[18] The objectives for refugees include the following:

(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted;

(b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement;

(c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution;

(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;

[19] Further guidance is provided in s. 4 of the IRPA which specifies that the Act is to be construed in a manner that, inter alia:

(a) furthers the domestic and international interests of Canada; and,

(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;

[20] The Supreme Court of Canada has addressed the overall purpose of IRPA in various decisions. In R. v. Appulonappa, the Chief Justice noted:

The IRPA…is a complex statute dealing with the entry into Canada of foreign nationals through two processes — the immigration process and the refugee protection process. We are here concerned primarily with the refugee protection process.[^8]

[21] In Kanthasamy v. Canada (Citizenship and Immigration), Abella J. described the general scheme as follows:

The Immigration and Refugee Protection Act governs the admissibility, eligibility and removal of non-citizens. Under the Act and its accompanying regulations, foreign nationals — individuals who are neither citizens nor permanent residents — seeking permanent resident status must apply for and obtain a visa before entering Canada.[^9]

[22] Within this context, I now turn to the interpretation of the particular provisions at issue in this case.

D. SECTION 91 OF THE IRPA

The Statutory Language

[23] The first four counts on the indictment charge Ms. Codina with breaching s. 91(1) of the IRPA. That provision states:

91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with . . . a proceeding or application under this Act.

[24] The remaining subsections of s. 91 deal with various classes of persons who do not contravene s. 91(1) if they undertake the conduct prohibited in that section, specifically licensed lawyers, registered members in good standing with the Immigration Consultants of Canada Regulatory Council (“the ICCRC” – the licensing body for immigration consultants), students-at-law in certain circumstances, and some other special situations. Suffice to say, it is common ground that none of these subsections apply to Ms. Codina. She was previously a lawyer licensed by the Law Society of Upper Canada, but had been disbarred years before the events giving rise to these charges. She was not a registered immigration consultant. In short, if (in the language of the section) she “knowingly, directly or indirectly, represented or advised a person for consideration — or offered to do so — in connection with . . . a proceeding or application under the IRPA,” she would be guilty of an offence under s. 91(1).

Legislative History

[25] Section 91 of the IRPA first came into force in 2002, providing for the regulation of who could “represent, advise or consult” with a person who is the subject of a proceeding before a decision-maker under the Act. In this first iteration, the provision did not contain any penalties.[^10]

[26] In May 2003, an Advisory Committee appointed by the Minister issued a report containing 37 recommendations, including that the Government should “ensure that counsel are regulated with respect to the widest possible range of immigration proceedings and application” and that there be clear definitions as to who could practice in the field and how they would be regulated. The Committee also recommended that penalty provisions be added to the legislation to address “unauthorized and improper” immigration practice.[^11]

[27] The Immigration and Refugee Protection Regulations (IRPR) were amended in April 2004 to add section 13.1, which stated that only persons who were authorized representatives could, for a fee, represent, advise or consult with a person who was the subject of a proceeding or application under the IRPA. The term “authorized representative” was defined in section 2 of the IRPR as “a member in good standing of a bar of a province, the Chambre des notaires du Quebec or the Canadian Society of Immigration Consultants.” The ultimate intent of this amendment was to enhance public confidence in the Government of Canada’s immigration program.

[28] The original regulation did not cover situations where an individual contacted a consultant prior to initiating a proceeding or application and it did not clarify what, if any, consequences there would be if a consultant contravened the provision. This was seen by government committees to be a weakness in the legislation. The House of Commons Standing Committee on Citizenship and Immigration made a number of recommendations in a 2008 report entitled “Regulating Immigration Consultants” including that the scope of the existing legislation and regulations should be expanded to cover work done by “phantom” or “ghost” consultants, who did pre-submission work in preparing applications and giving advice, but never appeared on the record anywhere.[^12]

[29] The current version of s. 91(1) saw its genesis in Bill C-35 which was introduced in the House of Commons on June 8, 2010 as the “Cracking Down on Crooked Consultants Act.” In the preceding Speech from the Throne on March 3, 2010, the Government signaled its intention to better protect potential immigration applicants by cracking down on dishonest or fraudulent immigration consultants. Key elements in the proposed amendments were the creation of a new offence and extending the protection to all stages of an IRPA application or proceeding, including before the filing of an application.[^13]

[30] Following Second Reading, Bill C-35 was referred to the Standing Committee on Citizenship and Immigration. The clause by clause briefing notes prepared for parliamentarians for this stage of the process stated that the intent of the new s. 91(1) was to create “a new offence by extending the prohibition against representing or advising persons for consideration – or offering to do so – to all stages in connection with a proceeding or application under that Act, including before a proceeding has been commenced or an application has been made.”[^14] The penalty provisions were deliberately set higher than the Criminal Code provisions for summary convictions in order to underline the seriousness of the offence and enhance the factors of deterrence and punishment.[^15]

[31] The proposed amendments were directed only at those who did this kind of work for financial gain and the Minister assured the House that non-profit groups and MPs could continue to assist potential immigrants without running afoul of the legislation.[^16]

[32] The words “directly and indirectly” were added to Bill C-35 with a view to getting at “ghost consultants,” representatives who act as intermediaries.[^17]

[33] Bill C-35 received Royal Assent on March 23, 2011 and s. 91(1) came into force on June 30, 2011.[^18] To assist the public’s understanding of what was covered, Canada Immigration published its Operational Bulletin 317 on its website listing examples of activities that were permitted, and those that were not. It included the following:

In general if a person is providing services which do not involve advising or representing the applicant then he or she are [sic] not required to be authorized. Examples of services falling into this category would include:

• Directing someone to the CIC website to find information on immigration programs;

• Directing someone to the CIC website to access immigration application forms;

• Directing someone to an immigration representative;

• Providing translation services;

• Providing medical services (.e. medical exams, DNA testing); and

• Making travel arrangements.

However, if a person is providing advice or representation to a client for consideration, then he or she must be authorized. Examples of such actions would include:

• Explaining and provide [sic] advice on someone’s immigration options;

• Providing guidance to a client on how to select the best immigration stream and completing the appropriate forms;

• Communicating with CIC/Canada Border Services Agency/Immigration and Refugee Board on someone’s behalf;

• Representing someone in an immigration application or proceeding;

• Representing someone in an Arranged Employment Opinion or Labour Market Opinion application; and

• Advertising that they can provide immigration advice.

Unpaid third parties, such as family members and friends, will also still be allowed to act on behalf of an applicant without being authorized.[^19]

[34] While these are merely guidelines prepared within Immigration Canada and do not have the force of law, they provide some guidance as to what was contemplated by government authorities as being prohibited by the legislation.

“no person shall”

[35] Ms. Codina argued that the words “no person shall” in s. 91(1) apply only to a natural person, not a corporation. I do not necessarily agree. However, the corporation is not charged. Only Ms. Codina is charged, and only in her personal capacity. The Crown alleged that Ms. Codina personally gave advice and that she personally counselled one client to make a material misrepresentation in an immigration application. Regardless of whether “person” in this context includes the corporate entity owned and operated by Ms. Codina, it certainly includes Ms. Codina herself. That is the focus of all counts on the indictment.

[36] Ms. Codina further argued that the Crown was attempting to hold her vicariously liable for the actions of the corporation, or alternatively, that the Crown was seeking to pierce the corporate veil so as to attribute to her the guilty acts and guilty mind of the corporation. Again, this misconceives the Crown’s case. It might well be the case that the existence of a sham corporation, created only to hide an individual from prosecution and avoid the reach of the legislation, will afford no defence to that individual. It might also be the case that the directing mind of the corporation could be held liable for all offences committed in the name of the corporation. I should not be taken to have said that the legislation cannot be interpreted this broadly. Again, however, it is not necessary for me to decide these issues. Ms. Codina’s description of the Crown’s allegations is incorrect and the evidence was not directed towards showing that the corporation was a sham. Ms. Codina is charged only with what she did personally. There is no attempt to pierce the corporate veil so as to hold Ms. Codina liable for the acts of employees of the corporation.

[37] In these circumstances, these words in s. 91(1) do not provide any defence to Ms. Codina. The fact that the retainer agreements were all with Codina International, rather than with Ms. Codina personally, is irrelevant. The Crown made no attempt to make Ms. Codina liable for advice or representation provided by other employees of Codina International. However, Ms. Codina cannot excuse her personal conduct by saying she was acting on behalf of the corporation. Regardless of what party is named on the retainer agreement, Ms. Codina is responsible for her own conduct and if that conduct constitutes a breach of this provision, she has committed an offence.

[38] This principle was the subject of a number of rulings I made during the trial, as Ms. Codina persistently tried to introduce evidence of what work was done on files by employees of Codina International other than herself. I ruled many times that work done by other people was largely irrelevant, and I instructed the jury accordingly. Likewise, I held that it was irrelevant whether a good result or bad result was obtained for any given client. There is no allegation of negligence or fraud. Whether the advice given was good, bad or indifferent does not matter. It is the giving of the advice without a license that constitutes the offence.

“directly or indirectly”

[39] Ms. Codina argued that the words “directly or indirectly” refer only to the person who is alleged to have committed the offence and was added to the legislation in order to ensure that it included so-called “ghost consultants” who worked behind the scenes as intermediaries, but never appeared on the record. I agree that Parliament sought to ensure that such consultants would be liable for breaching s. 91(1). However, that is not, in my view, the full extent and natural meaning of the words “directly or indirectly.” The words should be interpreted in the normal way. A person is liable for doing something directly, or for deliberately and knowingly doing something indirectly to accomplish the same result.

[40] However, in this case, Ms. Codina is being held responsible only for what she did directly, so nothing turns on this point.

[41] In my view, “indirectly” also extends to the person to whom the advice is given. Ms. Codina argued that if an individual in Canada retained Codina International for the purposes of obtaining advice for a relative abroad who wished to immigrate to Canada, liability would only attach if the advice was actually provided directly to the person abroad who would ultimately be the person making an immigration application. I disagree. If advice is given in Canada, knowing that the advice is for the benefit of a person abroad, and intending that the person abroad would rely upon it, the advice is given to the person abroad, even if indirectly. To hold otherwise would be to defeat the intention of the legislation, which is to prevent unlicensed individuals in Canada from providing advice to potential immigrants.

“advise”

[42] Ms. Codina argued that the actions of Codina International in respect of its clients could be divided into three time spans: (1) giving information; (2) providing advice; and (3) representing the client. She distinguished between the giving of information (which is general in nature) and the giving of advice. On her theory, giving information would be telling the clients what immigration programs were available to them. If the firm was retained, an application would be prepared, with supporting material and sent to Canada Immigration. According to Ms. Codina, this work product is the giving of “advice.” Finally, she argued that “representing” someone only applied to a formal appearance at a hearing before a tribunal of some sort in which a Use of Representative form was filed.

[43] I agree that there is a distinction between “advice” and “information,” but disagree with everything else Ms. Codina put forward on this point. As a preliminary matter, a written submission filed with the government, which the client has not even seen, is by definition not “advice” to the client. Work product, by itself, is not advice and filing the finished product with the government does not change that fact. Likewise, working on a file is not providing advice. By its very nature, advice is given ­to someone. Legal advice is given to a client. Performing work on a file, or filing a submission with the government, might fall within the term “representing” a client, but neither can constitute providing advice.

[44] As for the distinction between information and advice, Ms. Codina relied extensively on Barreau de Montréal c. Codina, a decision of a Justice of the Peace in Quebec acquitting Ms. Codina on a charge of providing legal advice without a license to practice law in Quebec.[^20] I take no issue with the general principles relied upon by the Justice of the Peace in that case. Essentially, he held that “legal advice” included a description of the law, a review of facts and issues, and personalized recommendations based on how the law applies to the specific circumstances. Legal advice, in his view, is intended to help the client decide what to do. The Justice of the Peace contrasted this with “legal information”, which is provided to help a person understand the law but is general in nature. The Justice of the Peace held that Ms. Codina’s comments to the client were restricted to explaining remedies provided for in the statute and did not constitute a legal opinion. However, he also held that the content of Ms. Codina’s opinion could not be determined as there were no recordings or notes and the client’s testimony as to what Ms. Codina said to her was unreliable. In particular, the client had testified that Mr. Eyouk-Tang (a lawyer employed by Codina International) gave her advice on what she should do, whereas Ms. Codina only gave her general information about the temporary resident permits and visas available. I agree with the general statement of the law in this decision. However, the actual result reached has no application to this case as it turned on its own particular evidence and, in any event, is not binding.

[45] That said, the general principle is a sound one. Giving legal advice involves more than passing along general information about the law. In Barreau de Montréal c. Codina, the Justice of the Peace relied on the Quebec Court of Appeal decision in Charlebois c. Barreau du Québec, 2012 QCCA 788 upholding a lower court decision that a man giving information by email to his friend in respect of a meeting of the board of directors for a condominium in which they both lived was not “legal advice”. [^21] Again, the result in the actual case has no bearing on the issues before this court. However, the distinction between advice and information is an important one and I agree with the conclusions of the Court of Appeal in that regard. In particular, the Court cited an article by Professor D.A. Rollie Thompson in the Canadian Forum on Civil Justice for the proposition that “legal information” is about giving answers about the law in general, the options available, the basic judicial processes and, more dangerously, how the law “might” apply, whereas “legal advice” is about giving personalized answers about how the law would apply to a particular case or the option a person should choose or the likely outcome they would obtain.[^22]

[46] Ms. Codina also relied on the decision of Belobaba J. of this Court in Trillium Motor World Ltd. v. Cassels Brock & Blackwell, which in fact cited the Quebec Court of Appeal decision in Charlebois in analyzing the difference between legal advice and legal information. [^23] Once again, the way in which the issue arose and the actual result in the case are quite different from the case now before me. However, the general principles applied are instructive. The case involved a class proceeding by a number of General Motors car dealers whose dealerships had been cancelled by General Motors at a time of financial crisis. The law firm of Cassels Brock had provided legal advice to the Canadian Automobile Dealers Association (“CADA”). An issue arose as to whether all communications between the law firm and CADA were protected by privilege or whether individual dealerships could obtain production of them for use in their class action. In determining which communications constituted legal advice, Belobaba J. held as follows:

. . . One must differentiate between legal information and legal advice. Legal information consists of providing answers regarding the law generally, the options available, and the relevant legal procedures that might pertain. For example, information provided by CBB to CADA about the federal bankruptcy process and the CCAA and how it would affect the dealers is legal information, not legal advice.

Legal advice, on the other hand, is advice that is given with respect to the client’s legal rights and duties and is given on the understanding that it may well be followed. It depends on the individual circumstances of the recipient and consists of a much more personalized opinion on the way the law would apply in a particular case or about the particular decision that should be made in the circumstances. Legal advice involves the interpretation of legal principles “to guide future conduct or to assess past conduct.” In short, legal advice is particularized advice that is directed to the client’s legal rights or duties and in essence says “here is what I think you should do” as opposed to “here is some information about the CCAA and the federal bankruptcy process.”[^24]

[47] It is for the jury to decide what Ms. Codina said and did with respect to each client or client group in the four counts on the indictment. My responsibility is to instruct them on the law that applies. In my view, the general principles I have referred to above set out that law in a succinct manner. I decided to use these cases to instruct the jury on the applicable law. It would then be for the jury to decide based on their factual findings whether Ms. Codina provided advice or merely information.

[48] My jury instruction on this issue is set out in Appendix A to these reasons. In my jury charge, I began my discussion of the first four counts on the indictment by providing legal instructions on the meaning of s. 91(1) of the IRPA. Thereafter, I dealt with the individual counts on the indictment, referring to the evidence on each count and how the legal principles related to that evidence, sometimes referring to those more general instructions given earlier. Appendix A includes my legal instructions on s. 91(1) generally, without relating those principles to the individual counts.

“represent”

[49] Ms. Codina took the position that the word “represent” in s. 91(1) refers only to a situation in which a standard “Use of Representative” form is filed and a person appears at a hearing before a tribunal or some decision making body to make oral or written submissions on behalf of a client. I do not agree.

[50] The interpretation Ms. Codina urges is an extremely restrictive one, and does not accord with the normal everyday meaning of the words used. The Oxford English Dictionary defines “represent” as follows:

To assume or occupy the role or function of (a person), typically in restricted and usually formal situations; to be entitled to speak or act on behalf of (a person, group, organization, etc.); (in later use esp.) to act or serve as the spokesperson or advocate of.[^25]

[51] It cannot have been the intention of Parliament to limit this term to situation in which a Use of Representative form was filed. Since only licensed individuals could file such a form, this would add nothing to the rights of vulnerable individuals this provision was designed to protect. The legislation was intended to ensure that immigration consultants acting on behalf of potential immigrants are licensed to do so. That is the intention of the legislation, and the plain and ordinary meaning of the word “represent.”

[52] Accordingly, I instructed the jury as follows on this issue:

To “represent” means to “act on behalf of.” This term does not relate only to a trial-like process, or hearing, or formal written submissions to a tribunal or government agency. Filing written forms or submissions with a tribunal or government agency on behalf of another person constitutes “representation.” Likewise, appearing on behalf of another person at a hearing or speaking on their behalf to a governmental decision maker would be “representation.” However, a person can “represent” or “act on behalf of” another person at any stage of an immigration matter. There does not need to be a formal filing or appearance.[^26]

“for consideration”

[53] Ms. Codina argued that all payments made by any client were made to Codina International and that there was therefore no consideration in respect of anything she did in relation to those clients. She also argued that the newspaper advertisements for Codina International stipulated that the initial consultation was free of charge and that even if she gave advice in that initial meeting, it was not for consideration.

[54] This is a rigid and technical interpretation of the language of the statute, which does not accord with its plain meaning or its intent. By stipulating that only those who provided services “for consideration” were required to be licensed, Parliament sought to ensure that public service organizations, or constituency offices of Members of Parliament, or friends and relatives of potential immigrants, and the like, could provide assistance to them without the requirement of being licensed. What Parliament sought to prevent was somebody providing immigration services for profit, wholly unregulated and unsupervised.

[55] The scheme proposed by Ms. Codina would thwart the intention of the legislation. She was clearly not offering her services pro bono. She was running a business. She was not licensed as a lawyer or immigration consultant. If she was providing immigration advice or offering to represent people in immigration proceedings, she was engaged in precisely the activity the legislation was designed to prevent. It cannot have been the intention of Parliament that individuals could escape the reach of the legislation merely by directing that any payment be channeled through a third party.

[56] Section 91(1) does not stipulate that the person providing the advice must have been paid directly. Rather, the offence is “providing advice to a person for consideration.” Clearly this element of consideration is an essential element of the offence. However, in my opinion, this phrase refers to the person’s motivation rather than whether that person ever received payment. Thus, if a completely unlicensed person provided advice and representation and then rendered a bill for those services, but the client failed to pay, the offence would still be made out.

[57] This approach falls squarely within the normal meaning of the word “consideration.” The term “consideration” is broader than monetary payment. It includes “some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.”[^27] Further, the benefit does not have to accrue to the person performing the service. A contracting party may choose to have a payment made to a third party. If that payment benefits the contracting party, then that party has received consideration.[^28]

[58] Applying those principles to Ms. Codina’s situation, given that she was the sole officer, director and shareholder of Codina International, any payment to Codina International would inure to her benefit. Further, if she provided services through Codina International and directed that payments be made to Codina International, she will have received consideration. Indeed, her whole purpose in carrying on business through Codina International was to obtain a benefit for herself through the services provided by Codina International.

[59] Finally, in circumstances where a client came to Codina International, met with Ms. Codina in a free-of-charge consultation and that client did not subsequently retain Codina International, I agree there would not have been any consideration provided for the services provided. However, advice given in the initial consultation is not provided as an act of charity. It is provided with the hope and expectation that the client will hire Codina International and pay Codina International to process an application. If Codina International was never retained or paid anything, it may nevertheless be the case that this initial advice was given “for consideration,” but I do not need to decide that issue as it did not arise on the facts of this case. Every client involved in this case actually retained Codina International and actually paid Codina International. In those circumstances, in my opinion, if advice is provided in the initial meeting and the client then retains and pays the company to follow through with that advice, then the advice was provided for a benefit and the consideration requirement is met.

[60] Ms. Codina also argued that the consideration was required to be paid by the person who actually would be making the immigration application. There is no such requirement. Consideration can flow from anybody. The source of the funds that clients passed on to Codina International is irrelevant.

[61] My instructions to the jury on this point are set out in Appendix A.[^29]

“in connection with a proceeding or application under the IRPA”

[62] Ms. Codina argued that there could be no offence under s. 91(1) unless an application or proceeding was actually commenced under the IRPA. There is no merit or logic to that proposition. The section is meant to apply to persons who give advice or represent or offer to represent a person “in connection with” a proceeding under the IRPA. To require that such an application actually be commenced before the offence provision is triggered, would not only be contrary to the plain meaning of the words used, it would undermine the intent of the legislation. If Ms. Codina is correct, unlicensed individuals could give advice and offer to represent people and collect substantial amounts of money for their services, and then avoid prosecution merely by not commencing the application for which they were paid. The plain meaning of these words is that the advice or representation must relate to something that could be a proceeding or application under the IRPA if it proceeded, as opposed to advice about some unrelated matter. As a factual matter, this was not a controversial question. In respect of every count on the indictment, the clients signed retainer agreements that specified the nature of the matter upon which Codina International was retained. It was agreed fact that all of the programs listed in the retainer agreements, and all of the programs discussed with the complainants, were actual programs that could be the subject of a proceeding or application under the IRPA. I instructed the jury accordingly.[^30]

“knowingly”

[63] I instructed the jury that the word “knowingly” applied to each of the essential elements of the offence.[^31] There was no objection to this portion of the instruction. However, Ms. Codina argued that in order to establish the charge, the Crown was required to prove beyond a reasonable doubt that Ms. Codina knew what she was doing was an offence under s. 91(1) of the IRPA. In that regard, she requested that the decision in Barreau de Montréal c. Codina be put before the jury.

[64] The Crown is not required to prove that Ms. Codina believed she had violated s. 91(1) and went ahead anyway. It is a well-established legal principle that people are deemed to know the law and cannot justify criminal acts by stating that they believed what they were doing was lawful (provided the other elements of mens rea are met). This principle is codified in s. 19 of the Criminal Code which states, “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.” Regardless of whether Ms. Codina believed that she had structured the activities of Codina International so as to shield herself from criminal liability, she is guilty of an offence if she actually committed that offence.

[65] Ms. Codina did not testify and indicated from the start of the trial that she would not be testifying. Therefore, in any event, there would be no evidence before the jury that Ms. Codina believed that what she was doing was lawful. The Quebec decision adds nothing to the mix and is not properly before the jury. These are the findings of a magistrate based on the evidence in the case before him and his findings as to the reliability of the main witness testifying for the prosecution. Such factual findings would be for the jury to make in this case on each of the counts before them. The conclusion reached by another trier of fact on different facts is not relevant evidence for the jury to consider in this case. Further, the mere existence of the Montreal case is not evidence of Ms. Codina’s state of mind. It will often be the case that people guilty of a crime will be acquitted of an offence because of some weakness in the evidence against them and the heavy burden on the Crown to prove its case beyond a reasonable doubt. It cannot be presumed that a person acquitted of an offence would now believe that whatever they had done was lawful. I did not permit the decision to be filed as evidence.

[66] I instructed the jury that ignorance of the law is not a defence. It was necessary to do so because Ms. Codina frequently attempted to give the jury her version of events in submissions and also told the jury what she believed the law was, although frequently admonished not to do either. My instructions on the meaning of “knowingly” in s. 91(1) are set out in Appendix A.

[67] As I noted earlier, I dismissed Ms. Codina’s Charter application in which she argued that the language of ss. 91(1) and 126 were so overly broad and vague that they violated her s. 7 Charter rights. The language used in s. 91(1) is not unfamiliar or vague. It is easily capable of an interpretation that has not violated s. 7, based on existing legal doctrine and case law and normal English usage.

E. SECTION 126 OF THE IRPA

The Relevant Statutory Provisions

[68] Section 126 of the IRPA provides as follows:

126. Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.

[69] Section 127 of the IRPA is also relevant. It states:

127. No person shall knowingly

(a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

(b) communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada; or

(c) refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act.

Purpose of s. 126

[70] It is vital to the integrity of the Canadian immigration system that immigration decisions be based on accurate information. Criteria for immigration programs are based on government policy as to who should or should not be admitted to Canada. If these programs are to operate as designed, it is imperative that applicants for admission be truthful in setting out the particulars entitling them to admission. Dishonesty cannot be tolerated. For that reason, material misrepresentations in immigration applications are treated very seriously under the Act.

[71] Section 126 is designed to get at those who entice or counsel others to make misrepresentations in immigration applications. Many applicants would not have the wherewithal to misrepresent, or know what false information might be persuasive in an application. Unscrupulous advisors with knowledge of the Canadian immigration system are in a unique position to undermine the integrity of the Canadian immigration system by counselling potential immigrant on ways in which they might lie in their applications in order to gain admission. It is this scourge that s. 126 is intended to address.

[72] In R. v. Hamilton, the Supreme Court of Canada considered the rationale for imposing secondary liability on those who counsel others to commit offences, even where those offences were not committed. Fish J. (writing for the majority) adopted the following reasoning of the Law Reform Commission of Canada:

. . . the rationale for secondary liability is the same as that for primary liability. Primary liability attaches to the commission of acts which are outlawed as being harmful, as infringing important human interests and as violating basic social values. Secondary liability attaches on the same ground to their attempted commission, to counselling their commission and to assisting their commission.

This is clear with participation. If the primary act (for example, killing) is harmful, then doing it becomes objectionable. But if doing it is objectionable, it is also objectionable to get another person to do it, or help him do it. For while killing is objectionable because it causes actual harm (namely, death), so too inducing and assisting killing are objectionable because of the potential harm: they increase the likelihood of death occurring.

The same arguments hold for inchoate crimes. Again, if the primary act (for example, killing), is harmful, society will want people not to do it. Equally, it will not want them even to try to do it, or to counsel or incite others to do it. For while the act itself causes actual harm, attempting to do it, or counselling, inciting or procuring someone else to do it, are sources of potential harm — they increase the likelihood of that particular harm’s occurrence. Accordingly, society is justified in taking certain measures in respect of them: outlawing them with sanctions, and authorizing intervention to prevent the harm from materializing. [Emphasis added in the Supreme Court of Canada judgment.][^32]

[73] Fish J. then noted:

These passages, in my view, aptly explain why Parliament has imposed criminal responsibility on those who counsel, procure, solicit or incite others to commit crimes, whether or not the crimes are in fact committed.[^33]

[74] In my view, the same reasoning applies to s. 126 of the IRPA.

“every person” and “directly or indirectly”

[75] I have dealt with the meaning of “person” and “directly or indirectly” in the preceding section dealing with s. 91(1). Those same principles apply to s. 126.

“counsel”

[76] In this case, the Crown simplified the charge against Ms. Codina and particularized it to be only that she “counselled” a misrepresentation. It is therefore not necessary for me to deal with the meaning of the words “induce” or “aid” or “abet” in this context.

[77] Ms. Codina argued that case law interpreting the word “counsel” in the Criminal Code offences is applicable here. I agree. The word “counsel” in this context must mean something more than “advise” or “suggest.”

[78] I turn again to the Supreme Court of Canada in R. v. Hamilton, which I consider to be the seminal decision on this issue. Fish J. held as follows:

In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.[^34]

[79] I also adopt the reasoning of Charron J. (in dissent, but not on this point) as follows:

This Court considered Dionne and expressly adopted this “stronger meaning of actively inducing” in R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2 at para. 56. In order for the actus reus to be proven, the words communicated by the accused, viewed objectively, must be seen as actively inducing, procuring or encouraging the commission of an offence. This restricted interpretation of the meaning of counselling is not only consonant with the definition of “counsel” under s. 22(3), it ensures that the scope of the offence remains within the justifiable limits of the criminal law. It is this concern of potential overbreadth that informed this Court’s adoption in Sharpe of a more restricted meaning of counselling.[^35]

[80] Using these principles from the Supreme Court of Canada case law and adapting portions of the Watt standard charges[^36], I instructed the jury as follows on this element:

There are several ways in which one person may counsel another to commit a crime. “Counsel” means to advise or recommend a particular course of conduct. “Counsel” also includes to procure, solicit or incite. To “advise or recommend” a course of conduct involves more than a mere comment, suggestion or expression of an idea. It requires an actual recommendation to do the thing suggested. To “procure” another person to do something means to instigate, encourage, or persuade the other person to do it. To “solicit” another person to do something means to entreat or urge the other person to do it or to repeatedly ask or suggest that person do it. To “incite” another person to do something means to urge, stimulate or stir up the other person to do it. In short, counselling is the active encouragement or active commission of the offence in question (in this case material misrepresentation). A forceful act is not a requirement in order to establish counselling. However, if force was applied, that would support a finding of counselling.[^37]

[81] Thus, I find the words used in s. 126 to be familiar ones in the criminal law. These words are readily capable of an interpretation that does not violate s. 7 Charter rights, as has been recognized by the Supreme Court of Canada.

“material facts with respect to a relevant matter”

[82] It is not every misrepresentation that is objectionable, but only those that are about a “material fact” with respect to a “relevant matter.” The Supreme Court of Canada held in Sharbern Holdings Inc. v. Vancouver Airport Centre that materiality is a question of mixed fact and law.[^38] In discussing what would be a material fact, Rothstein J. noted in that case that it is not necessary that the fact would have changed the decision, but merely “that there was a substantial likelihood it would have assumed actual significance in a reasonable [decision-maker’s] deliberations.”[^39]

[83] That same test has been applied in the immigration context. In Sayedi v. Canada (Minister of Citizenship and Immigration), Tremblay-Lamer held that:

I agree with the respondent that to be material, a misrepresentation need not be decisive or determinative. It will be material if it is important enough to affect the process. The False Document was thus clearly material because the application could not have been processed without it.

The fact that the misrepresentation was caught before the final assessment of the application does not assist the applicants. The materiality analysis is not limited to a particular point in time in the processing of the application—the fact that the principal applicant had submitted more recent language test results does not render the earlier misrepresentation immaterial. Such a result would reflect a narrow understanding of materiality that is contrary to the wording and purpose of section 40(1) (a) of the Act. The False Document was submitted and it was material.[^40]

[84] The distinction between what is a “material” fact and a “relevant” matter is less apparent. I am not aware of any case authority dealing directly on the issue. However, Immigration Canada provided a useful explanation in its Operations Manual, which was an Exhibit at trial, and which I provided to the jury in my charge as follows:

The Immigration Canada Operations Manual contains a useful summary of the difference between relevancy and materiality (Ex. 95, p. 33). It states:

• What is relevant is a broader concept than what is material.

• All material factors will be relevant. However, what is relevant may not always prove to be material:

• Information requested from applicants will be considered relevant, otherwise this information would not be requested; but,

• This relevant information will not always affect the process undertaken by an officer or the final decision. Only when it affects the process undertaken, or the final decision, does it become material. [^41]

[85] Because materiality is ultimately a question for the jury and is a mixed question of fact and law, evidence was called by both parties as to what would be material in the context of the immigration programs at issue. I then instructed the jury on what would make something “material” or “relevant” and left the ultimate question to be decided by them.

“induces or could induce an error”

[86] Ms. Codina argued that the words “induces or could induce an error” establish that it is only counselling that results in a misrepresentation being made in an application or proceeding that is caught by s. 126. On her theory, once the misrepresentation is made: (a) if it is not detected, it induced an error; and (b) if it is detected, it could have induced an error, but for the fact that it was uncovered.

[87] I do not agree. Obviously, counselling a misrepresentation may induce an actual error if that misrepresentation is made. That eventuality is covered by “induces an error.” However, I read “could have induced an error” more broadly. It is not consistent with the intent of the legislation or the plain meaning of the words that counselling a misrepresentation is only an offence if the misrepresentation is actually made. That is not a logical reading of ss. 126 and 127 taken together. Suppose an unscrupulous consultant could provide an entirely fabricated scenario for a person to present to Immigration Canada in support of a refugee application. On Ms. Codina’s reasoning, if that person goes to the police with that fabricated scenario rather than trying to pass it off to Immigration Canada, the consultant would have committed no crime. That cannot have been the intention of Parliament in enacting this provision. I would only be driven to such an interpretation by clear language requiring it. That is not the case here. If a person counselled a misrepresentation that could have induced an error if that misrepresentation was made, that is sufficient to satisfy s. 126.

[88] I so instructed the jury.

F. APPLICATION FOR DIRECTED VERDICT

The Test

[89] The test for a directed verdict was established by the Supreme Court of Canada in United States v. Shephard: “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.”[^42] The court provided further guidance in R. v. Charemski, as follows:

For there to be “evidence upon which a reasonable jury properly instructed could return a verdict of guilty” in accordance with the Shephard test…the Crown must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden.[^43]

[90] This evidence may be either direct or circumstantial.[^44] Where evidence relating to any or all of the elements of the crime is circumstantial, the trial judge must engage in limited weighing of the evidence in order to “assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.”[^45] The question is whether the evidence, if believed, could reasonably support an inference of guilt.

Questions of Law

[91] Many of Ms. Codina’s arguments on her motion for a directed verdict of acquittal were the same as arguments she had made throughout the trial as to the meaning of ss. 91(1) and 126 and the various terms within them. I have already dealt with those arguments in the previous sections on the interpretation of s. 91(1) and s. 126 and will not repeat them here.

Count One

[92] Under Count 1 on the indictment, Ms. Codina was charged that she “did knowingly … directly or indirectly, advise or represent, or offer to advise or represent … Jalil Chitizadeh and Sara Chitizadeh, for consideration, in connection with a proceeding or application under the IRPA.”

[93] Ms. Codina was unlicensed and knew she was. There was evidence of payment to Codina International and evidence that Ms. Codina knew there had been such payment. Both Jalil Chitizadeh and his daughter Sara testified. Both met directly with Ms. Codina. The matters they discussed with Ms. Codina were clearly connected to an application under the IRPA. The only real issue with respect to this count is whether Ms. Codina provided advice or represented or offered to represent these clients.

[94] Ms. Codina argued that she could not be convicted of providing advice to Jalil Chitizadeh because he would not be the subject of an immigration application. Mr. Chitizadeh was already a permanent resident of Canada. He first contacted Codina International and spoke to Ms. Codina with respect to bringing his daughter Sara and her young son to Canada. There was evidence that Sara Chitizadeh fled Iran in fear for her life using false documents. She made it to Mexico but was apprehended there and made a refugee claim. However, she did not wish to stay in Mexico, because she had family here in Canada and because she had been the victim of several crimes and attempted crimes while in Mexico. There was clear evidence that Ms. Codina knew from the outset that Mr. Chitizadeh was seeking assistance for his daughter and grandson. She knew that any legal advice or assistance provided would be for Sara and her son and that they would be the subject of any application commenced under the IRPA. Therefore, any advice she provided to Mr. Chitizadeh would have been in connection with an application under the IRPA and she knew that to be the case. There is no merit to her argument that she could not be convicted of providing advice to Mr. Chitizadeh in these circumstances. In any event, Sara Chitizadeh was also named in the count and she would have been, and indeed was, the subject of an application commenced under the IRPA. Ms. Codina argued that if two people are named in the indictment and she only provided advice to one of those people, she must be acquitted of the charge completely. I reject that argument. If two people are named, and she provided advice to only one, she is nevertheless guilty of the offence. However, in this particular situation, the advice was provided to both named complainants.

[95] Jalil Chitizadeh testified at trial that when he first called the offices of Codina International he was transferred to Yasmeen Hassan (an employee of Codina International), spoke with her in Farsi, and made an appointment for September 30, 2011. He attended the offices of Codina International on that date. He said he met first with Yasmeen for about 10-15 minutes and she then called Ms. Codina to join the meeting. He testified that he told Ms. Codina the background about his daughter and grandson and she asked him a few questions about his daughter. He described her education, her degree, and her talents as an artist. He said that Ms. Codina told him that based on this information, the best way to bring Sara to Canada was through a Temporary Residence Permit. He asked her how long that would take and she told him three months. He further testified that Ms. Codina told him that the TRP was the first stage and that after Sara was in Canada, they could apply for permanent residence here. Mr. Chitizadeh said that he told Ms. Codina that his daughter had arrived in Mexico and was found to be without a legal passport. She had to claim refugee status there or she would have been deported back to Iran. However, she was fearful about remaining in Mexico and he did not know if she could last another three months there. He said Ms. Codina told him that the TRP was the quickest way to get Sara into Canada. He told Ms. Codina that he believed Sara might come to Canada illegally and claim refugee status. He testified that Ms. Codina told him that this would not be a problem because if she arrived in Canada, they would transfer any fees he had paid for the TRP to a refugee claim for Sara.

[96] Mr. Chitizadeh’s testimony is “some evidence” that Ms. Codina provided advice, and not merely information about immigration programs. The advice was tailored to the particular circumstances of Sara Chitizadeh, rather than being general in nature. Ms. Codina also provided advice about what could be done if Sara entered Canada before the TRP was processed. Again, this was particular to the circumstances of Sara Chitizadeh and it would open for a jury to conclude that this was advice.

[97] Sara Chitizadeh left Mexico using somebody else’s passport and came to Canada. There was evidence that after her arrival she went to a Canada Immigration office where she said she wanted to claim refugee status. She was given a refugee claim number and some forms to fill out and told to return on a specific date with the completed forms. Sara and her father testified that they came to the offices of Codina International with these forms. They had completed the forms themselves, at least in part. However, somebody at Codina International then assisted in the completion of the application in typed form and, in the course of that, made changes to the information initially filled in by the clients. There was some evidence from Mr. Chitizadeh and his daughter that this was done in consultation with Ms. Codina and that she gave advice to the person filling in the forms. The completed application was given to Sara Chitizadeh to present to Canada Immigration. One of the changes that had been made to the document was to show the mailing address for the applicant as being the office address of Codina International. The previous version prepared by the clients had put Mr. Chitizadeh’s home address as the mailing address. Also, significantly, the application form completed at the Codina offices included a declaration that Sunny Vincent, a lawyer, had assisted in the preparation of the form and had been informed by Sara Chitizadeh that she completely understood its nature and effect. There is a signature purporting to be that of Sunny Vincent. Sunny Vincent testified at trial that the signature was not his, that he was never an employee of Codina International, and that he had never met or spoken to either Jalil or Sara Chitizadeh. Both Mr. Chitizadeh and Ms. Chitizadeh testified that they had never met or spoken to Sunny Vincent. They both gave similar descriptions of the person who assisted them in completing the forms and, based on their descriptions, that person could not have been Sunny Vincent.

[98] Sara Chitizadeh testified that she presented the completed forms at an Immigration Canada office and was interviewed by an immigration officer. That officer found her to be ineligible for refugee status in Canada because she had already made a refugee claim in Mexico and been granted refugee status there. Mr. Chitizadeh testified that, while still at the immigration offices, he called Ms. Codina and told her what had happened. He testified that Ms. Codina told him that the officer did not understand the law and that she wanted to speak to her directly. He said that the immigration officer was reluctant to speak to Ms. Codina, but that he begged her to talk to her and when she agreed he passed her his cell phone. They spoke for about 10 minutes on the phone. He said he could hear Ms. Codina shouting at the officer on the phone. After the call, he spoke to Ms. Codina and she asked him to return to her office. Mr. Chitizadeh testified that they returned to Ms. Codina’s office and she told them that there are other ways to stay in Canada and that they could also appeal. He said that she told them that their “case was very strong.” However, he told her they needed to think about it and ultimately they decided not to return.

[99] The testimony of Mr. Chitizadeh is “some evidence” that Ms. Codina not only provided advice but also actually spoke on behalf of Sara Chitizadeh to an immigration officer in connection with her refugee application. It would be open to the jury that in doing so Ms. Codina had “represented” Sara Chitizadeh.

[100] Accordingly, there was ample evidence to go before the jury on Count 1 and I dismissed the application for a directed verdict on this count.

Count Two

[101] Count 2 on the indictment charges Ms. Codina that she “did knowingly . . . directly or indirectly, advise or represent, or offer to advise or represent . . . Mahjub Ahmadi and Sohaila Ahmadi, for consideration, in connection with a proceeding or application under the IRPA.”

[102] The named complainants (Mahjub and Sohaila Ahmadi) are husband and wife. They sought the assistance of Codina International to bring Sohaila’s sister (Shahla Azami) to Canada, along with her husband and their children. The Ahmadis had two meetings with Ms. Codina, the first of which was on February 13, 2012. When they arrived at Codina International, they met at first with Yasmeen Hassan. Mr. Ahmadi testified that they explained to Yasmeen the circumstances of his wife’s sister’s family who were currently in Pakistan as refugees, having gone there from Afghanistan. Yasmeen then told them about the Temporary Resident Permit (“TRP”) which she said would take about three months and would cost them $11,000, after a 10% discount. Mr. Ahmadi said this was the only option mentioned by Yasmeen. After the discussion with Yasmeen, they spoke to Ms. Codina who was on Skype. Mr. Ahmadi said that Yasmeen had told them that Ms. Codina was the head of the firm and would explain more things to them. He said that when Ms. Codina joined the conversation, Yasmeen had already given the background information to her. He said that Ms. Codina first asked them if they had any questions, and then told them that the TRP was the best option and that their family would be here in three months. Thereafter Mr. Ahmadi signed a retainer agreement with respect to the TRP application. He paid the required first two installments.

[103] Mr. Ahmadi obtained required documents for the application and filled out forms, which he sent to the Codina International offices. Many months passed and he was having difficulty finding out what was happening with the application. Ultimately, he made an appointment to meet again with Ms. Codina. At the second meeting, Mr. Ahmadi testified that he was expecting Ms. Codina to explain what was happening on the file. Instead, she told him that he had to pay the final of the three installments before the application would be submitted to the government and before he would be given a copy of it. When he pressed, she showed him four typed pages of submissions to be sent with the forms, in support of an application for admission on humanitarian and compassionate grounds. Mr. Ahmadi noted significant errors on the submissions, including that some of the names were completely wrong.[^46] He listed several documents that Ms. Codina told him were missing, including passports, photos, a resume for both his sister-in-law and her husband and a copy of their diplomas, in writing on the back of the submissions. Mr. Ahmadi testified that Ms. Codina told him that any errors on the submissions would be corrected. However, Mr. Ahmadi testified that they had lost confidence in Ms. Codina and decided not to proceed any further.

[104] The above evidence represents “some evidence” that Ms. Codina gave advice tailored to the particular circumstances of the clients involved. She recommended the TRP program as the best option. It is clear this would be an application under IRPA. This constitutes some evidence capable of supporting a conclusion that Ms. Codina provided advice and not merely information.

[105] I reject Ms. Codina’s argument that the failure to name Shahla Azami in the count is fatal. There was clear evidence that Ms. Codina had full knowledge the advice was being given to the Ahmadis for their relatives in Pakistan, who would be the applicants in the IRPA application.

[106] However, I concluded that there was no evidence from which the jury could conclude that Ms. Codina had personally done anything that would constitute acting on behalf of the Ahmadis or Ms. Azami, nor was there any evidence that she offered to do so in her personal capacity. This count went to the jury based only on the allegation that Ms. Codina provided advice and I instructed the jury to disregard any reference to representation in the formal count.

Count Three

[107] Under Count 3, Ms. Codina is charged that she “did knowingly . . . directly or indirectly advise or represent, or offer to advise or represent … Nikolaos Mouzos, Elizavet Mourtzis and Ioanna Mourtzis, for consideration, in connection with an application under the IRPA. The actual client in this case was Nikolaos Mouzos, a Greek citizen who was in Canada on a visitor’s visa visiting family and was interested in immigrating. The addition of Elizavet Mourtzis and Ioanna Mourtzis, who are relatives of Mr. Mouzos and who were with him for some of his meetings with Ms. Codina adds nothing to the indictment, but neither does it mandate a complete dismissal of the charge, as urged by Ms. Codina. It simply does not matter one way or the other.

[108] There was no evidence that Ms. Codina ever did anything on behalf of Mr. Mouzos and I therefore instructed the jury that they should consider only whether she provided advice or offered to represent him.

[109] Mr. Mouzos testified that in his initial appointment at Codina International, he met with Eleni (Ms. Codina’s assistant, who spoke Greek) and also with Ms. Codina herself. Three potential options were described to him and he said he would think about them and return. At his second meeting, he again met with Ms. Codina and he testified that before he signed the retainer agreement and paid any money, Ms. Codina told him she was 100% certain that the outcome would be positive and he would be able to stay in Canada. She also told him that the process would take about a year. He signed the retainer agreement at that meeting and provided a cheque for $5000. The agreement called for a first installment of $7500. Mr. Mourtzis provided the remaining $2500 three weeks later. Mr. Mouzos testified that Ms. Codina herself assured him that all the papers go through her hands before they go to their final destination; that she reviews everything. He denied ever meeting another lawyer at Codina International.

[110] Based on this testimony alone, there is some evidence that Ms. Codina provided individualized advice based on the particulars of the client and gave him an opinion as to his likelihood of success. That is sufficient to go to the jury on the issue of whether she provided advice as opposed to only information.

[111] It is not necessary for me to detail the other evidence that could constitute providing advice. However, there was a significant meeting with Ms. Codina, which was attended by Mr. Mouzos and his two nieces Ioanna and Vassiliki Mourtzis. This was an extremely confrontational meeting as the nieces had done some online research about Ms. Codina and found some information about her past history of criminal conduct. Ioanna Mourtzis audio recorded their meeting on her cell phone and later downloaded it, transferred it to a disc, and provided it to CBSA officers. In my view, it was open to the jury to conclude that Ms. Codina not only gave advice in this meeting, but also offered to personally represent Mr. Mouzos.

[112] Initially, the Mourtzis sisters were demanding that Ms. Codina refund to him everything he had paid up to that point. Ms. Codina was attempting to persuade them to proceed with the application and agreed that she would not insist on the payment of the final installment until after his application had been filed and accepted. She also agreed to refund the money if his application was rejected. In those discussions, Ms. Codina made the following statements:

I will tell you, first of all, he will be approved.[^47]

Trust me, he will not get denied. He will not get denied.[^48]

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[^49]

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.[^50]

[113] These statements provide further evidence which the jury could consider constitute Ms. Codina providing advice about his immigration application.

[114] After Ms. Codina made these and other statements, the family met privately and then returned. Ioanna stipulated that if they were going to proceed, Ms. Codina would need to confirm all of this in writing, which she agreed to do. Ioanna then stated:

“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).[^51]

[115] Ms. 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.[^52]

And trust me, I have over 30 years’ experience, okay in this.[^53]

I know everything okay, okay.[^54]

[116] I find that these statements constitute some evidence that Ms. Codina personally offered to represent Mr. Mouzos in his immigration proceeding. It does not matter that this would be done through Codina International, nor that other people (including, potentially, licensed lawyers or consultants) might also do work on the file. If the jury considered this to be an offer by Ms. Codina to personally act on behalf of Mr. Mouzos in this matter, that could support a finding that she offered to represent him.

[117] As I have already noted, there was no evidence that Ms. Codina actually did anything on the file other than meet with Mr. Mouzos from time to time. Accordingly, I instructed the jury that they must consider only if Ms. Codina gave advice or offered to represent him. In all other respects the motion for a directed verdict on this count was dismissed.

Count Four

[118] Under Count 4, Ms. Codina was charged that she “did knowingly . . . directly or indirectly, advise or represent, or offer to advise or represent . . . Farhad Abdolvahabi, Sarasadat Hosseini, and Behzad Mahmoudi, for consideration, in connection with a proceeding or application under the IRPA.” Although it was Mr. Abdolvahabi who retained Codina International and met on numerous occasions with Ms. Codina, it was always clear that he was acting on behalf of his sister’s wife, Sarasadat Hosseini (who was a civil engineer in Iran) and her husband, Behzad Mahmoudi (who was a psychiatrist in Iran). Mr. Abdolvahabi testified that he audio-recorded his meetings with Ms. Codina so that he would have an accurate record of the advice provided as he would be relaying this to his in-laws and did not want to make any errors. Consequently, there are actual audio recordings of everything Ms. Codina said, which were evidence at trial.

[119] All of the parties are named so there is no issue as to whether advice was given directly to the applicants or indirectly through their relative in Canada who actually met with Ms. Codina. It is clear that payments were made by Mr. Abdolvahabi on behalf of his relatives abroad. He makes many references to taking advice back to his relatives and getting their instructions, so there is clear evidence that Ms. Codina knew of their involvement and the nature of that involvement.

[120] The evidence that Ms. Codina provided advice to Mr. Abdolvahabi is overwhelming, including what Ms. Codina herself said in the following excerpts from the transcripts of the audio recordings:

Let’s go for that” (referring to a skilled worker application for Behzad Mahoudi). She then suggests Behzad Mahmoudi should study English to increase his points; “because of the education we should be able to get him through as a skilled worker;” “he will be the main applicant”[^55]

I wouldn’t bother with Saskatchewan right now because these people are professionals.[^56]

This is my recommendation to you.[^57]

And let me tell you, the work permit [referring to the intra company transferee program], there’s nothing for them to lose. We try it, we- it’s gonna be in a few months they’ll know, and you know what, if it’s refused they have no-, they, they haven’t lost anything. Then we go ahead with the self-employed. That’s it. We have nothing to lose. I mean, in my opinion, it’s worth a shot.”[^58]

I personally think we should use you to sponsor her, okay?[^59]

So let’s do both” [referring to the federal skilled worker program and a work permit], but the work permit is quick so my question is, in my opinion, I think we should do an LMO through your company for her, no problem at all.[^60]

My recommendation to you, and listen to me very carefully, I’m happy to try to help any way I can. The point is this, to do something to try to bring them quick. We have nothing to lose with the intercompany transferee really, because we could do it immediately. Now, at the same time we can proceed with the trade as well, you know combined like we could do both in, uh, simultaneously.[^61]

I really feel that we shouldn’t be wasting our time this or even asking them or anything. You said it’s your decision. That’s my decision. I’m telling you this right now, okay? That’s it. And we need to go forward, Mr. Farhad, okay? Trust me on this. As I said, if you’ve got the company to do this we’re good. We’re good okay? We don’t have to worry about anything. It’s just paperwork here.[^62]

[121] I have selected only a few of the statements made by Ms. Codina that provide evidence upon which the jury could conclude she was giving legal advice, and not merely information. There are many others, but these will suffice. Ms. Codina’s motion for a directed verdict on this issue is dismissed.

[122] There is also evidence from these transcripts which, in my view, constitute some evidence upon which a jury could conclude that Ms. Codina was offering to represent Mr. Abdolvahabi. The following excerpts are examples:

(referring to bringing the sister-in-law in as a skilled worker) “Mr. Qasem is gonna have to email me her resume, and I will look to see what I think might be the best classification.”[^63]

Forget Eshita. I’m taking control here. [Eshita was a staff member Mr. Abdolvahabi occasionally dealt with, often by email or on the phone][^64]

Listen, this can be resolved right away, but I’ll tell you one thing, don’t wait around for the staff. They’re well-intentioned and to say, you know, if someone had grabbed me, this could have been done in two days.[^65]

I’ll get it ready for you. I’ll give it top priority, okay?[^66]

Stop listening to Eshita, okay? Eshita is a staff member. She’s not a professional. [after Mr. Abdolvahabi mentioned what he had previously been told by Eshita with respect to the intercompany transfer].[^67]

[123] Accordingly, I dismissed Ms. Codina’s motion for a directed verdict in respect of Count 4.

Count Five

[124] Count 5 also relates to Mr. Abdolvahabi, but is a charge under s. 126 of the IRPA rather than s. 91(1), as was the case with respect to the other four counts. Under Count 5, Ms. Codina is charged that she “did knowingly. . . induce, counsel, aid or abet, or attempt to induce, counsel aid or abet, directly or indirectly, Farhad Abdolvahabi, to misrepresent or withhold material facts relating to a relevant matter that induced or could have induced an error in the administration of the IRPA.” Although this is the wording of the indictment, during the course of preparing the jury charge I raised with the Crown how cumbersome it would be to charge the jury with respect to each aspect of this (induce, counsel, aid, abet, attempt) and whether all of this verbiage was necessary. The Crown agreed to pare the count down to a simple allegation that Ms. Codina “counselled” Mr. Abdolvahabi to misrepresent or withhold material facts.

[125] Ms. Codina argued that I should direct a verdict of acquittal based on three fatal flaws in the evidence before the court.

(1) Mr. Abdolvahabi was the only person named in the indictment and since he would not be the one making an IRPA application, he could not himself make any misrepresentation.

(2) There was no evidence that she “counselled” a misrepresentation as that term is legally defined. All she did was make suggestions or raise possibilities.

(3) There cannot be a charge of counselling unless the offence of misrepresentation is actually committed. Attempted counselling had also not been shown as there were no steps taken towards committing the offence and mere preparation is not enough.

[126] It is clear that all of Ms. Codina’s efforts were directed towards Mr. Abdolvahabi. Various methods of bringing his sister-in-law and brother-in-law to Canada were discussed. The applicant in any these applications would be the sister-in-law, or perhaps the brother-in-law. It would not be Mr. Abdolvahabi. However, Ms. Codina was fully aware that Mr. Abdolvahabi was representing his relatives in this regard and passing along all of the information she provided. Ultimately, when Mr. Abdolvahabi told her that his relatives did not want to proceed with the plan she had proposed, Ms. Codina tried to persuade him to let her talk directly to his sister-in-law. When he refused to do that, she urged him to proceed himself, without their consent, stating as follows:

I really feel that we shouldn’t be wasting our time on this or even asking them or anything. You said it’s your decision. That’s my decision. I’m telling you this right now, okay? That’s it. And we need to go forward Mr. Farhad, okay, and don’t even ask for their opinion or whatever. They don’t know. They’re relying on you anyways, okay? Trust me on this.[^68]

[127] Ms. Codina proposed three ways of bringing Mr. Abdolvahabi’s relatives to Canada. Each of these scenarios anticipated Mr. Abdolvahabi’s involvement in some way, and in each instance would implicate Mr. Abdolvahabi in the misrepresentations. I summarized these options and the evidence on them for the jury in my charge. That portion of the charge is attached as Appendix B (paras. 2-15).[^69]

[128] For present purposes, suffice to say that the failure of the indictment to name the sister-in-law in Iran is not a basis for a directed verdict of acquittal. Ms. Codina knew Mr. Abdolvahabi was acting for his relatives and in any event many of the misrepresentations would involve Mr. Abdolvahabi personally.

[129] I also reject Ms. Codina’s argument that she merely made suggestions and that her words and actions could not constitute “counselling” within the meaning of s. 126. First of all, it is for the jury to determine whether the words spoken amounted to counselling, after taking into account the legal instructions as to what that word means. Also, the jury had the advantage of actually hearing the conversations, many of which involved Ms. Codina using an extremely forceful tone of voice as she urged Mr. Abdolvahabi to follow through with her plan. There was ample evidence before the jury from which they could find that Ms. Codina had counselled Mr. Abdolvahabi. Rather than list it all here, I have included my instruction to the jury on what they might take into account in determining whether there had been counselling in Appendix B.[^70]

[130] Ms. Codina’s argument about counselling not being complete unless the offence is committed finds its root in cases dealing with the offence of counselling under the Criminal Code and is inapplicable to s. 126 of the IRPA. The Criminal Code has two different offences involving counselling - s. 22 and s. 464. Ms. Codina relied upon case law about s. 22 of the Criminal Code, which states:

22(1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled. [emphasis added]

[131] It is an essential element of an offence under s. 22 of the Criminal Code that the offence counselled be committed. However, Ms. Codina was not charged under s. 22; she was charged under s. 126 of the IRPA. The general case law on the meaning of the word “counsel” may be applicable to an offence under s. 126, but that does not mean that the constituent elements of the two offences are the same. In fact, they are not.

[132] In any event, the more comparable provision in the Criminal Code is s. 464, which involves counselling where the offence is not committed. Again, as I discussed under Heading E above, case law dealing with this criminal offence is useful in determining the meaning of the word “counsel” in s. 126. However, the offences themselves are quite distinct.

[133] The case law cited by Ms. Codina with respect to attempts have no application here. She is not charged with an attempt. She is charged with counselling a misrepresentation. It is clear from the language used in s. 126 that it is meant to include situations where no misrepresentation is actually made.

Conclusion

[134] In the result, I dismissed the application for a directed verdict of acquittal in its entirety. Ms. Codina called some evidence, but did not testify on her own behalf. Ultimately, the jury returned guilty verdicts on all five counts.

MOLLOY J.

Released: December 29, 2017

APPENDIX A

ESSENTIAL ELEMENTS OF COUNTS ONE TO FOUR

(SECTION 91 of the IRPA)

[1] For you to find Ms. Codina guilty of the offence charged, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Ms. Codina was not licensed lawyer or paralegal or a registered immigration consultant at the times in question;

ii. that Ms. Codina provided advice to, or represented, or offered to represent a complainant named in the indictment;

iii. that the advice or representation was in connection with a proceeding or application under the IRPA;

iv. that she did so knowingly; and,

v. that Ms. Codina received “consideration” for the advice or representation she provided.

[2] If Crown counsel has not satisfied you beyond a reasonable doubt of each of these essential elements, you must find Ms. Codina not guilty of the offence. If Crown counsel has satisfied you beyond a reasonable doubt of each of these essential elements, you must find Ms. Codina guilty of the offence.

[3] Each essential element may be made into a question for you to consider carefully and answer.

Question One: Was Ms. Codina a licensed lawyer or paralegal or a registered immigration consultant at the times in question?

[4] There is no issue as to this element. It is an admitted fact that Ms. Codina was not a licensed lawyer or paralegal and not an immigration consultant registered with the Immigration Consultants of Canada Regulatory Council (“ICCRC”) (see Exhibit 1). The answer to this question is “No” for all of Counts 1 to 4.

Question Two: Did Ms. Codina, directly or indirectly, provide advice to, or represent, or offer to represent, a complainant named in the indictment?

(a) Advice

[5] In determining whether Ms. Codina provided “advice” it is important to distinguish between what is “information” and what is “advice.” It is only the giving of “advice” that attracts liability, not merely providing “information.” In this context, the word “advice” has a technical meaning that is more restrictive than its ordinary dictionary definition. Legal “information” may describe the law so as to help a person understand it, but it is general in nature. Anybody can provide general information about immigration law, the government programs offered to people seeking to immigrate to Canada, and the options and immigration procedures generally available. On the other hand, legal “advice” involves a review of the facts and issues raised in a particular case and personalized recommendations based on how the law applies in specific circumstances. It is typically given on the understanding that it may well be followed and depends on the individual circumstances of the person to whom it is directed. It is particularized advice directed to a person’s legal rights or duties, including recommendations as to how the law may apply to them. “Here is what I think you should do” is legal advice. “Here is some information about Canadian immigration law and the immigration programs offered by our government” is legal information.

[6] By its very nature, advice is something that is given to somebody. The work product of a lawyer, such as a letter of argument or submissions sent on behalf of a client to a government agency cannot be “advice” if it is not given to the client. If a lawyer’s work product is provided to the client in the course of giving them advice, such as for the purpose of explaining their rights, options, duties, or what they should or should not do, then that document may be considered to be advice, like an opinion letter. A document filed with the Immigration Canada is not advice to Immigration Canada, and it is not advice to the client unless provided in circumstances such as I have explained, which do not arise on the facts of any of the cases before you.

[7] In this case, the Crown does not allege that Ms. Codina is criminally responsible for advice provided by Codina International through any of its agents or employees other than Ms. Codina. A corporation cannot be licensed as a lawyer, nor can it be registered as a licensed immigration consultant under the ICCRC. There is also no legal requirement that a corporation whose employees provide immigration representation and advice must be owned by a person who is licensed. A corporation is a separate legal entity, but it cannot itself give advice. The advice is given by human beings, and those human beings are individually responsible for such advice. Thus, the conduct subject to this charge is the conduct of Ms. Codina herself. The issue is whether she personally provided advice. The fact that other employees gave advice is irrelevant. Likewise, it is not relevant that there may have been lawyers or licensed immigration consultants involved in the firm, or even performing work on a particular file. More than one person can provide advice on a matter. Further, one person could give advice even if another person in the firm is designated as a “representative” on documents filed with Canada Immigration. The issue for you to decide is whether Ms. Codina personally gave advice, not whether anyone else at Codina International did.

(b) Represent

[8] To “represent” means to “act on behalf of.” This term does not relate only to a trial-like process, or hearing, or formal written submissions to a tribunal or government agency. Filing written forms or submissions with a tribunal or government agency on behalf of another person constitutes “representation.” Likewise, appearing on behalf of another person at a hearing or speaking on their behalf to a governmental decision maker would be “representation.” However, a person can “represent” or “act on behalf of” another person at any stage of an immigration matter. There does not need to be a formal filing or appearance.

[9] I repeat that the Crown does not allege that Ms. Codina is vicariously liable if Codina International represented or offered to represent individuals in connection with an application under IRPA. Ms. Codina was the sole owner of Codina International. The firm itself is not required to be licensed, and indeed, cannot be licensed with the ICCRP. There is also nothing prohibiting an unlicensed individual from owning a corporation that provides immigration representation. However, unlicensed individuals are not permitted to represent anyone in an immigration matter, regardless of whether they are sole practitioners or employees of a firm. A corporation providing immigration services can, and almost certainly will, employ unlicensed individuals (e.g. receptionists, office staff and the like). However, that does not change the fact that only licensed individuals employed or associated with the firm are permitted to provide advice or representation. Ms. Codina was the Executive Director of Codina International. You must be careful to differentiate between her role as such and her personal role in terms of whether she was personally offering to represent, or did personally represent, anyone. If Ms. Codina personally did something that would constitute representation, or if she told a client that she would personally act on their behalf, then it is no defence for her to say that it was the firm that was providing representation, rather than her. However, if she was merely taking care of the business side of the operation and not actually personally providing representation, or offering to do so, then she would not be liable to prosecution under s. 91 of the IRPA.

(c) To a person

[10] If you find that Ms. Codina gave advice or represented or offered to represent another person, that other person must be named in the indictment. However, the advice or representation may be provided directly or indirectly. For example, advice may have been given to a relative in Canada with the knowledge that it would actually be passed along to, and was for the benefit of, a person outside Canada, who would be the actual applicant in any immigration proceeding that was commenced. Likewise, there can be an offer to represent a person abroad by making that offer through the relative here in Canada. It is not necessary that the advice be given directly to the person who would be the applicant in any application that would be commenced, nor is it necessary to show the communications between the person in Canada receiving the advice and the relative abroad for who that advice is ultimately intended. The Crown is not required to show reliance on any advice provided.

Question Three: Was the advice or representation in connection with a proceeding or application under the IRPA?

[11] It is not an essential element of this offence that an application or proceeding was actually commenced under the IRPA. If advice was given in relation to a potential application under the IRPA, then this element of the offence is met. To answer this question, in addition to the evidence of the witnesses, you should have regard to the retainer agreements they signed. It is an agreed fact that all of the programs listed in the retainer agreements, and all of the programs discussed with the complainants, were actual programs that could be the subject of a proceeding or application under the IRPA. (See also the affidavit of Val Sulemani, Exhibit 93)

Question Four: Did Ms. Codina provide the advice or representation for consideration?

[12] This legislation does not seek to prohibit family members, friends, relatives or the like to assist someone with an immigration matter free of charge. It is not an offence for someone who is unlicensed to provide assistance, advice and representation to another person if those services are provided without compensation of any kind. Sometimes, people offer advice or representation for purely charitable reasons, receiving no benefit. Those people are not required to be licensed. However, where persons provide advice or representation in order to obtain a benefit, or as part of their business for profit, they are required to be licensed and they commit an offence if they are not. The question here is whether Ms. Codina provided the advice or representation to the complainants on an immigration matter “for consideration.”

[12] “Consideration” is a word that has a particular legal meaning. It is a benefit provided by one party to another in exchange for something else. Often the “consideration” for a contract or retainer between parties is that one party provides monetary payment in exchange for a benefit to be provided by, or at the direction, of the other. It is not necessary that the payment flow directly to the person providing the service. If the Person A is providing the service to Person B and directs that payment be made to Person C, the person providing the service (Person A) is still receiving consideration for the service provided. Likewise, it does not matter who provides the consideration for the service rendered. Person A might give advice to Person B expecting to receive payment for it and Person D might pay be the one who actually makes the payment. That still means that Person A received consideration. It is not necessary that the consideration flow directly from the person to whom the advice was given.

[13] A payment does not have to be a direct payment to an accused to constitute consideration within the meaning of this offence. It is an agreed fact that Ms. Codina was the sole owner and director of Codina International Group Inc. and CIC International Group Canada Inc. (either or both are referred to throughout these instructions as “Codina International”) and had control over the bank accounts of those companies. It is clear that Codina International was carrying on the business of providing immigration advice and representation. If Ms. Codina was personally providing advice and/or representation to clients, was she doing so as an act of charity, or rather, for the financial betterment of the corporation owned solely by her? If the latter, she received a benefit when the corporation received payment. You may consider whether it is a reasonable and logical inference that if a complainant made a payment to Codina International in respect of advice or an offer to represent made by Ms. Codina, that means that her actions were “for consideration.”

[14] You have heard evidence that Codina International charged no fee for the initial consultation with a prospective client. If Ms. Codina met with a prospective client and gave detailed advice, but that client never retained Codina International and never paid anything to the company or to Ms. Codina, there would be no offence committed under s. 91 of the IRPA. However, if advice is given, as a result of which a retainer is signed and monies paid to Codina International in respect of an application that will be ongoing, as a question of law, Ms. Codina has received consideration for that advice.

Question Five: Did Ms. Codina provide such advice or representation knowingly?

[15] “Knowingly” in this context means: that Ms. Codina knowingly provided advice or representation to at least one of the named complainants when she was not licensed to do so; that she knew such advice was for the benefit of a person inquiring about immigrating to Canada; that she knew the advice or representation was in connection with an application under IRPA; and that she knew consideration was being provided in exchange for such advice or representation. “Knowledge” relates to a state of mind. It is not easy to know what is in another person’s mind. However, knowledge can be inferred from what a person says and how she says it, what she does and what she doesn’t do, and sometimes what she says or does not say about it. It is reasonable to infer that a sane and sober person means or intends to do what she actually does and knows the natural consequences of her actions.

[16] Canada’s Criminal Code provides that ignorance of the law by a person who commits an offence is not an excuse for committing the offence. In other words, a person is presumed to know the law. It does not matter whether Ms. Codina believed that she had structured things with Codina International in such a way so that she would not be guilty of any offence. Neither does it matter what Ms. Codina may or may not have believed about what, in law, constitutes the giving of advice or the receipt of consideration. “Knowledge” in this context has absolutely nothing to do with what Ms. Codina’s state of knowledge or belief may have been about the law.

APPENDIX B

Question 1: Did Ms. Codina counsel Mr. Abdolvahabi to make a misrepresentation or withhold facts?

[1] This question has two components: (1) whether Ms. Codina “counselled” Mr. Abdolvohabi; and,(2) whether what she counselled would be a misrepresentation or withholding of facts. I will deal first with whether the subject matter of what Ms. Codina proposed would be a misrepresentation or withholding of facts and then with whether the manner in which she communicated this to Mr. Abdolvahabi constituted “counselling.”

“Misrepresentation”

[2] The Crown alleges that Ms. Codina counselled Mr. Abdolvahabi to make misrepresentations and withhold information in relation to a proposed application to bring his sister-in-law to Canada through the intra-company transferee program. This is the only ground relied upon by the Crown to establish the charge. It is common ground between the parties that this program would be the subject of an application under the IRPA and that this element of the charge is proven. You may, or may not, be of the view that other possible misrepresentations about other programs are referred to in the various conversations Mr. Abdolvahabi had with Ms. Codina. Those conversations provide a context and background for you to determine what was actually happening between these individuals and to provide meaning to the discussions subject to the charge. However, they do not form a basis for a finding of guilt on this count and you must not use them in that way. It is only the statements made by Ms. Codina in respect of the intra-company transferee plan that are the subject of this count.

[3] You heard evidence from Val Sulemani, an immigration supervisor with Immigration Canada, as to the nature of the intra-company transferee program. The central feature is that a person from abroad is brought to Canada on a temporary work permit. Family members may also be admitted with the subject person. Applicants for temporary work permits are required to obtain a Labour Market Opinion (“LMO”) (or LMIA as it was subsequently renamed) unless they fall within an established exemption. If an LMO is required, the employer must advertise the existing job in order to demonstrate to the government that it was not possible to hire anyone from inside Canada and that it is therefore necessary to bring in an employee from overseas. One of the exemptions from this requirement is the intra-company transferee.

[4] According to the evidence of Ms. Sulemani, and the exhibits filed, the intra-company transfer requires that there be two connected companies – one abroad and one in Canada. There must be an ownership connection between them, with one company being the parent, subsidiary, branch or affiliate of the other. The employee who is being transferred must have a relationship with the foreign company, must be currently employed with that company, and must have worked with the company for at least one year full-time within the three years before the application (see Exhibit 94B, p.4). There must be an existing job in Canada that the Canadian employer needs to fill and for which the foreign employee is uniquely qualified, either because of a high managerial or executive position, or specialized knowledge about the company or its processes that nobody in Canada would have. That person’s job description in the foreign company must be similar to the job in Canada and the salary in Canada must be similar to what a Canadian would be paid in a similar level position. It could be possible for the Canadian branch company to be a start-up business, but if so the immigration authorities would expect to see a detailed business plan, including the premises upon which the business is located, the number of employees, and which employees were to be placed in which positions. They would typically expect there to have been a number of exploratory visits from the representatives of the foreign company to check out the situation here before starting up the Canadian branch.

[5] Mr. Abdolvahabi told Ms. Codina that his sister was a civil engineer and that she was working in Mashad, Iran doing site supervision on construction projects. Previously, she had worked for a large construction company in Iran, but was not currently employed there and did not live in the same city where that company was located. That company was owned by another brother-in-law and was called Mahbod (see Exhibit 50A, Tab 3 p.10, line 21). Mr. Abdolvahabi had been a director of the company in Iran thirty years earlier, but left the company when he came to Canada. (see Exhibit 50A, Tab 3, p. 11, line 17)

[6] Mr. Abdolvahabi also told Ms. Codina that he had been the vice-president of a Canadian company related to the construction company in Iran starting in 2008 and had invested $700,000 in that business. However, he left the business in March 2011 and it was now owned by an entrepreneur. (see Tab 2, pp. 18-24)

[7] In addition, Mr. Abovahabi told Ms. Codina that he now owned his own architectural firm in Toronto, but had been in that business for less than a year. He was the only employee, apart from a couple of part-time people.

[8] Ms. Codina discussed with Mr. Abdolvahabi various options for bringing his sister-in-law and her family to Canada. One of those options was for her to obtain a work permit through the intra-company transferee program. There were two options discussed with respect to the company in Iran. The first one discussed was the company in Iran that was a large construction company owned (in part) by her brother-in-law, where she had worked in the past (Mahbod). This is the company that Mr. Abdolvohabi had an interest in 30 years earlier. The second option was a large construction company in Iran named Pad Pay Pasargad. There were three options for the company in Canada – (1) a company that had been affiliated in the past with the brother-in-law’s company in Iran and had at one time been owned in part by Mr. Abdolvahabi; (2) the architectural firm solely owned by Mr. Abdolvohabi; and (3) a company that would be incorporated in Canada (either in Quebec with the same owners and directors as the company in Iran or in Ontario with Mr. Abdolvahabi as a 25% director).

[9] The first option (brother-in-law’s company in Iran and existing company in Canada) was discussed on August 8, 2012 (Exhibit 50A, Tab 2) and July 23, 2013 (Exhibit 50 A, Tab 3). The Crown relies on the following statements by Ms. Codina as counselling Mr. Abdolvahabi to make a misrepresentation about this option:

• Mr. Abdolvahabi talked about the company in Canada that was formed in 2008 and was related to the construction company in Iran. He said he sold that company to an entrepreneur in March 2011. Ms. Codina stated (at Tab 2, p. 24, line 8): “I don’t really care. Bottom line is I don’t need you. I need the company. I need to show an affiliation. I don’t care who owns it or who has it. I don’t even care if it’s that active now. If you’ve got some records to show me up to a certain point, we could use that.”

• Mr. Abdolvohabi had previously been a 40% owner and a director of the construction company in Iran. He told Ms. Codina that he had left that company 30 years ago. In response, Ms. Codina stated (at Tab 3, p. 11, line 24): “So what we’re gonna do is we’re gonna say that you are still a director there. They don’t have to know that you’re out. That you and your brother basically have that company. You come here, you set up a branch, and now you want your sister or this lady to come here, to basically come here because she has specialized knowledge.

• It is a requirement of the program that the work permit applicant have been employed by the company in Iran for one year within the last three years. Mr. Abdolvahabi said that his sister-in-law no longer worked there. Ms. Codina responded (Tab 3, p. 10, line 16): “Well, it doesn’t matter, we could put it, nobody has to know, that’s fine. We’re going to go ahead.”

• Ms. Codina was told that the sister-in-law was self-employed as a site supervisor on construction projects. With respect to the position occupied by the sister-in-law within the Iranian construction company, Ms. Codina stated (at Tab 3, p. 10 line 27): “…we will say that your sister, for example, this lady, that she was managing, that she was working in an executive or specialized knowledge.” On that same issue, she stated (at Tab 3, p. 15-16): “We wanna say that she has the knowledge….She knows the (inaudible) policies and the structures of the company…And that’s what’s necessary, because the two companies are really sort of like a continuation …okay? I mean, it’s a question of presenting it, you know.

[10] The second option (Mr. Abdolhabi’s architectural firm in Toronto) was discussed at the July 23, 2013 meeting (at page 10 line 19 to page14). This would involve giving the brother-in-law in Iran a percentage ownership in Mr. Abdolvahabi’s company in Toronto so that the two companies would appear to have common ownership.

[11] The third option (incorporating a new Canadian company) was discussed in more detail at a meeting with Ms. Codina on January 9, 2014 (Exhibit 50 B, Tab 7). Mr. Abdolvohabi advised that there was a company in Iran that his sister-in-law used to work for and they were willing to register their company here in Canada -- Tab 7, page 42, line 5. He said he had sent all the papers to Eshita (see Exhibit 62---documents relating to Pad Pay Pasargad) and Ms. Codina told him, “So forget Eshita. I’m taking control here.” (Tab 7, p. 43, line 18). Ms. Codina stated that a Canadian subsidiary would have 51% ownership by the owners of the Iranian company. She indicated they would not go that way because a branch company, with all the same owners, would be an easier structure---Tab 7, line 8-18. Ms. Codina told Mr. Abolvohabi that it was a requirement that the sister-in-law have worked with this company for one year in the past three years. She asked him if that requirement was met and he stated (at p. 65, line 1), “I don’t know. I have to ask.” Ms. Codina then relied, “We could say that, who cares right? We could say…been with them three years.” (p. 65---lines 4-9). Ms. Codina reiterated that the sister-in-law could come in on a management level and under specialized knowledge (Tab 7, p. 66). Ms. Codina asked Mr. Abdolvohabi how he wanted to pay the balance that would be owing. Mr. Abdolvahabi then said that he wanted to discuss the matter with his sister-in-law.

[12] The final meeting between Mr. Abdolvohabi and Ms. Codina was on January 25, 2014 (Exhibit 50B, Tab 9). Mr. Abdolvahabi stated that his sister-in-law was displeased at all of the changing plans and recommendations and wanted to go with the skilled worker program (Tab 9, pages 28-38). Ms. Codina offered her belief that the sister-in-law was simply misunderstanding the situation and suggested that she speak to the sister-in-law directly. Mr. Abdolvohabi stated that this would not matter. (Tab 9, p. 37, lines 2-13). Ms. Codina explained that there could be a problem with the federal skilled worker depending on her language facility (Tab 9, p. 40, line 4). Various options were discussed and she again returned to the intra-company transferee plan. The Crown relies on the following statements by Ms. Codina as counselling Mr. Abdolvahabi to make a misrepresentation about this option:

• Ms. Codina stated (at Tab 9, p. 45): “She’s an engineer, okay? And there’s a company here, okay, and we, basically say that they’ll be working with your company, for example, okay, whatever, they have an affiliation, uh, there’s something concrete there. You could, basically, give them a sub-lease, let’s say, from your premises to say that they’re renting from you. It’s already set up, okay, we do the incorp – that’s what I told you. I need to incorporate right now. We’re gonna put together a lease agreement between you and them, tell them that you’re renting to them, okay, that’s it on paper, that’s all okay? And we’re gonna say here’s the office setup and we need her to come there to manage. Period. We get the permit right away, and the family accompanies her as dependents, okay?

• Ms. Codina stated (at Tab 9, p. 53, line 25-p. 54, line 25): “As I said, if you’ve got the company to do this, we’re good. We’re good, okay? We don’t have to worry about anything. It’s just paperwork here. Incorporation, we do a lease agreement with you, with your company renting out space, and that’s it. Okay? And we’ll say that you have a joint venture agreement. We could even prepare a joint venture agreement between you as the design people and them as the construction… And that she will be the engineer supervising, like, she could do like, I don’t know, does she do project management as an engineer? … So there will be like, uh, an association between your company and their company. It will be like a joint venture. So we prepare the joint venture agreement, we prepare the lease…I am positive it will go.”

• With respect to the ownership of the Ontario company to be incorporated, Ms. Codina said that there could be the same owners as the company in Iran, but that they for the directors they would “need to show Canadian, but just on paper.” She proposed Mr. Abdolvahabi would be shown on paper as having being a 25% director in the company to satisfy this requirement. (Tab 9, p. 63)

• “The point is this, that if we’re gonna say that your design company is collaborating with them, that’s perfect…You have 25 percent interest in the company too …or a share, and then you can show that you have this arrangement between the two companies, okay?” (Tab 9, p. 64 line 3)

[13] In determining whether the Crown has established beyond a reasonable doubt the essential element of counselling a misrepresentation, you must consider: first, whether these statements by Ms. Codina, if put into an application for an intra-company transfer work permit, would constitute a misrepresentation; and second, whether the words spoken meet the test for counselling, as I have explained it to you, as opposed to merely being suggestions.

[14] You may wish to consider this from the perspective of individual factual issues listed above, or from the perspective of the overall scheme proposed. With respect to the former, issues are raised about: the ownership of the company in Iran; the timing of Ms. Husseini’s employment with the company; the nature of her employment with the company in Iran; Mr. Abdolvohabi’s interest in the Iranian company and the 2008 Canadian company; and the connection between the Iranian company and the company to be incorporated in Canada. With respect to the overall proposed scheme, you may wish to consider whether there is a legitimate intra-company transfer proposal at all, having a view to: whether there was an existing job in Canada for Ms. Hussein; whether the company in Iran required her to go to Canada to take a job with the Canadian company because of her management position or specialized knowledge gained from the company in Iran; whether the company to be incorporated in Canada would be a legitimate branch operation of the company in Iran.

[15] I have listed some of the evidence to assist you. In doing so, I may have included things you do not find to be important, or I may have overlooked things that you do find to be important. Remember that it is your view of the evidence that governs, not mine. You should also consider the individual statements within the context of the whole of the evidence to ascertain their true meaning. Each of you must be satisfied beyond a reasonable doubt that there was a proposed misrepresentation by Ms. Codina, but you may come to that conclusion by different routes and based on different aspects of the evidence. The only point upon which you must be unanimous is that there was a proposed misrepresentation, not the substance of that misrepresentation. I remind you that it is only misrepresentations with respect to the intra-company transfer proposals that are to be considered.

“Counsel”

[16] There are several ways in which one person may counsel another to commit a crime. “Counsel” means to advise or recommend a particular course of conduct. “Counsel” also includes to procure, solicit or incite. To “advise or recommend” a course of conduct involves more than a mere comment, suggestion or expression of an idea. It requires an actual recommendation to do the thing suggested. To “procure” another person to do something means to instigate, encourage, or persuade the other person to do it. To “solicit” another person to do something means to entreat or urge the other person to do it or to repeatedly ask or suggest that person do it. To “incite” another person to do something means to urge, stimulate or stir up the other person to do it. In short, counselling is the active encouragement or active commission of the offence in question (in this case material misrepresentation). A forceful act is not a requirement in order to establish counselling. However, if force was applied, that would support a finding of counselling.

[17] Counselling may involve a lengthy course of persuasion, or it may be brief. There may be many discussions, some bargaining back and forth, or few contacts. It does not matter whether Mr. Abdolvahabi agreed or did not agree to the proposal, nor does it matter if he ever had an intention of carrying out the proposal. Counselling is complete when Ms. Codina recommends, procures, solicits or incites Mr. Abdolvahabi to make a misrepresentation or withhold information, but only if she does so in one of the ways I have described for you. All of you do not have to agree on the same way, but everyone must be sure that, in one way or another, Ms. Codina counselled Mr. Abdolvahabi to make a misrepresentation or withhold information before she may be found guilty of the offence charged.

[18] In determining whether any misrepresentations proposed by Ms. Codina amounted to “counselling” you should have regard to:

• what she said;

• the context in which she said it; and,

• the manner in which she said it.

[19] You may wish to consider the evidence I referred to in the preceding section and also the following words spoken by Ms. Codina:

• The key thing right now is we start with the work permit because it’s quick, we bring them in. (Tab 3, p. 25, line 3)

• All we need to do is prepare the package and send it to the consulate directly. So once it goes there, within six to eight weeks we should have a response. (Tab 3, p. 26, line 12)

• My recommendation to you, and listen to me very carefully. I’m happy to try to help any way I can. The point is this, to do something to try to bring them quick. We have nothing to lose, nothing to lose with the intercompany transferee really, because we could do it immediately (Tab 9, p. 36, line 11)

• So we’re gonna go this way. Listen, we have nothing to lose. We’ve got everything ready, it’s been sitting around for too long. Let’s get it out and in a few months we will know.(Tab 7, p.69, line 23

• I’m trying to explain to you that there is some risk, maybe a 20 percent, but there’s 80 percent that they’ll let everybody in, okay? So we have to take it if you want her quickly, instead of dragging it on, and on, and on. (Tab 9, page 45)

• They have nothing to lose. We’re gonna go right away, to try to bring them in…” (Tab 9, p. 46, line 21)

• What I want to tell you right now is this, we offered you the intercompany transferee to bring them in quick. I think you should go for that if you’ve got the company. Let’s just do that.

• I wanted to do something concrete, and I suggested the intercompany from the beginning. (Tab 9, p.53,line 7)

• I really feel that we shouldn’t be wasting our time on this or even asking them or anything. You said it’s your decision. That’s my decision. I’m telling you this right now, okay? That’s it. And we need to go forward Mr. Farhad, okay, and don’t even ask for their opinion or whatever. They don’t know. They’re relying on you anyways, okay? Trust me on this. Tab 9, p.53, line 18

• I am positive it will go, and I will tell you why, because we have a concrete company here like yours that we can put together some kind of an association, so it shows a concrete, like, uh, an actual, um, you know what I mean, uh, a project. It’s not like a plan for the future. It’s an actual project. (Tab 9, p. 54, line 25)

• I really think, Mr. Farhad, don’t waste a single moment, trust me on this. Let’s do it. (Tab 9, p. 55, line 23

• I do feel absolutely confident about this, and it’s good to go, all right? (Tab 9, p. 56)

• I’m sick and tired of discussing it 10,000 times. Let’s just do it. (Tab 9, p. 69, line 1)

• Let’s not discuss over, and over, and over and waste everybody’s time, your time and my time.” (Tab 9, p. 69, line 23)

[20] Mr. Abdolvahabi testified to a certain degree of reluctance in proceeding with these options proposed by Ms. Codina. After the recording of the July 23, 2013 meeting (Tab 3) was played in court, Mr. Abdolvahabi testified that he “didn’t prefer this route” because it would be “hiding behind a lie.” He said he told his sister-in-law in Iran that he was not happy using Mahbod in Iran and Far Architecture in Canada because he had no connection with Mahbad since moving to Canada. He said his sister-in-law told him she would see if there was another Iranian company that would be interested. At his next meeting with Ms. Codina on November 8, 2013 after expressing his preference for the federal skilled trade program over the intra-company transfer, Mr. Abdolvahabi stated, “’Cause I wanna be honest, you know …with you, with government here with Canada. With, you know, what I’m thinking it’s just not trustworthy.” (Tab 4 p. 35, lines 4-11). Mr. Abdolvahabi testified that he went to the final meeting in January, 2014 intending to tell Ms. Codina that his in-laws were not interested in the intra-company transfer and instead wanted to proceed with the skilled workers program. You should review the recording of that January 25, 2014 meeting and consider whether Ms. Codina is pushing or encouraging him to go ahead with the intra-company transfer, notwithstanding his reluctance.

[21] As with all of my references to the evidence, you are free to consider other parts of the evidence and disregard the aspects I have mentioned. You should attach no significance to the fact that I mentioned something, or that I did not mention something else. It is entirely for you to decide.

[22] In determining whether what was said constituted counselling, you should consider the overall context in which the words were spoken. It is important that you consider the words spoken against the backdrop of the whole of the evidence, rather than focusing only on certain words. You should look at the timing of when the words were spoken and determine whether words that look to be encouragement of some sort actually relate to a misrepresentation. This is particularly important where there is a gap in time between various statements and options discussed at different meetings. You may consider, as well, the nature of the language used (“you could” as opposed to “you must” or “you should”). Also, the intra-company transfer was only one of a number of programs discussed with Mr. Abdolvahabi. This may also give you some context in determining whether this was counselling, as opposed to a discussion of possible options.

[23] The manner in which the words were spoken may also give you some assistance in determining whether the words spoken were mere suggestions, or whether they amounted to counselling. Words printed on a page do not tell the whole story. In this regard, you may wish to listen to at least some of the actual recording of these spoken words.

[24] You must all be satisfied beyond a reasonable doubt that Ms. Codina “counselled” Mr. Abdolvahabi to make a misrepresentation or withhold facts, although you may reach that conclusion by different routes. If you are satisfied beyond a reasonable doubt that the words spoken to Mr. Abdolvahabi amount to counselling and that what was being proposed constituted a misrepresentation, that is sufficient to answer “Yes” on this question. The fact that Mr. Abdolvahabi would not be the named applicant on the intra-company transferee application, if it was brought, has no bearing on your decision. If you are not satisfied beyond a reasonable doubt on this element, you must find Ms. Codina Not Guilty. Enter your verdict on the verdict sheet. If you are satisfied beyond a reasonable doubt, you will proceed to the second question.

CITATION: R. v. Codina #6, 2017 ONSC 7648

COURT FILE NO.: 16-9-761

DATE: 20171229

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

ANGELINA MARIE CODINA

Defendant/Applicant

REASONS FOR DECISON

MOLLOY J.

Released: December 29, 2017

[^1]: For a more detailed background, see R. v. Codina #1, 2017 ONSC 7162. [^2]: Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). [^3]: R. v. Codina # 5, 2017 ONSC 7323. [^4]: R. v. Codina # 1; R. v. Codina #2, 2017 ONSC 7236; R. v. Codina #3, 2017 ONSC 7561; R. v. Codina #4, 2017 ONSC 7315. [^5]: R. v. Codina #1, at paras. 53-56. [^6]: E. A. Driedger in Construction of Statutes (2nd ed. 1983), at p. 87; R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014); Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, 2002 SCC 559, [2002] 2 S.C.R. 559 at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. [^7]: Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at paras. 29-32. See also, B010 v. Canada (Citizenship and Immigration), [2015] 3 S.C.R. 704, 2015 SCC 58; Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539. [^8]: R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 17. [^9]: Kanthasamy v. Canada (Citizenship and Immigration, 2015 SCC 61 at para. 9. [^10]: Immigration and Refugee Protection Act, S.C. 2001, c. 27, prior to amendment by Bill C-35, An Act to amend the Immigration and Refugee Protection Act, 3rd session, 40th Parl, 2011 (assented to 23 March 2011). [^11]: “Report of the Advisory Committee on Regulating Immigration Consultants”, May 2003. Available online: http://www.crrffcrr.ca/images/stories/Report_of_the_Advisory_Committee_on_Regulating_Immigration_Consultants-new.pdf. [^12]: “Regulating Immigration Consultants: Report of the Standing Committee on Citizenship and Immigration”, June 2008, 39th Parliament, 2nd session. Available online: http://www.ourcommons.ca/Content/Committee/392/CIMM/Reports/RP3560686/cimmrp10/cimmrp10-e.pdf. [^13]: Affidavit of Michelle Naughton, Vol. 1 at para. 26. See also Canada, Bill C-35, An Act to amend the Immigration and Refugee Protection Act, 3rd Sess, 40th Parl, 2010 (first reading 8 June 2010). [^14]: Affidavit of Michelle Naughton, Vol. 1, at para. 26. Clause by clause analysis was filed as Exhibit M., at p. 409 of Michelle Naughton’s affidavit. [^15]: Affidavit of Michelle Naughton, Vol. 1, at para. 29. See also “Legislative Summary of Bill C-35: An Act to amend the Immigration and Refugee Protection Act”, Library of Parliament Research Publications, Publication No. 40-3-C35E, 19 January 2011., s. 2.3.2 “Penalty”. Available online at https://lop.parl.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?source=library_prb&ls=C35&Parl=40&Ses=3&Language=E. [^16]: House of Commons Debates, 40th Parl, 3rd Sess, No 67 (21 Sep 2010) at 1604. [^17]: House of Commons, Standing Committee on Citizenship and Immigration, “Evidence: Monday, November 15, 2010”, No. 032, 40th Parl, 3rd Sess, (15 November 2010) at 1545. [^18]: Bill C-35, An Act to amend the Immigration and Refugee Protection Act, 3rd Sess, 40th Parl, 2011 (assented to 23 March 2011). [^19]: Affidavit of Michelle Naughton, Vol. 1 at para. 36. The Operation Bulletin is available online at https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/bulletins-2011/317-june-30-2011.html. [^20]: Barreau de Montréal c. Codina, 2015 QCCQ 5833, 2015 CarswellQue 6458. [^21]: Charlebois c. Barreau du Québec, 2012 QCCA 788, 223 A.C.W.S. (3d) 532. [^22]: Ibid, at para. 32. [^23]: Trillium v. Cassels Brock & Blackwell, 2013 ONSC 1789, 228 A.C.W.s. (3d) 450 at paras. 11-12. [^24]: Ibid. (Citations omitted). [^25]: Oxford English Dictionary online: www.oed.com [^26]: Jury Charge, at page 53. The full instruction on this point (pp. 53-54 of the Jury Charge) is provided in Appendix A. [^27]: Currie v. Misa, (1875) [1875] L.R. 10 Ex. 153 at 162. [^28]: Dunlop Pneumatic Tyre Company Limited v. Selfridge and Company Limited, (1915 (A.C. 847, at p. 853; Royal Bank v. Kiska (1967) 1967 CanLII 154 (ON CA), 63 D.L.R. (2d) 582 (Ont. C.A.) at para. 23; see also Chitty on Contracts, 27th ed., vol. 1, (London: Sweet & Maxwell, 1994) at para. 3-034. [^29]: Jury Charge at pp. 56-58.See Appendix A. [^30]: Jury Charge at pp. 55-56. See Appendix A. [^31]: Jury Charge at pp. 58-59. See Appendix A for the full instruction on “knowingly.” [^32]: R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432 at para. 25, quoting from the Law Reform Commission of Canada, “Working Paper 45: Secondary Liability: Participation in Crime and Inchoate Offences” (1985) at p. 5. [^33]: Ibid, at para. 26. [^34]: Ibid, at para. 29 [^35]: Ibid, at para. 72. [^36]: David Watt, “Watt’s Manual of Criminal Jury Instructions”, 2nd ed. (Carswell: Toronto, 2015) at p. 467. [^37]: Jury Charge, Appendix B, p. 132, para 16. [^38]: Sharbern Holdings Inc. v. Vancouver Airport Centre, 2011 SCC 23, [2011] 2 S.C.R. 175, at para. 61. [^39]: Ibid. [^40]: Sayedi v. Canada (Minister of Citizenship and Immigration), 2012 FC 420, [2012] F.C.J. No. 469, at paras. 26-27. [^41]: Jury Charge, p. 138. [^42]: United States v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067 at para. 8. [^43]: R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679 at para. 3. [^44]: R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154 at para. 9. [^45]: R. v. Arcuri, [2001] 2 S.C.R. 838 at para. 23. [^46]: See Exhibit 39. [^47]: Transcript of February 22, 2013 meeting, Exhibit 92A at trial, page 43, line 14 [^48]: Ibid, page 44, line 10 [^49]: Ibid, page 46, line 22 [^50]: Ibid, page 72, line 24 [^51]: Ibid, page 81 [^52]: Ibid, page 81, line 11 [^53]: Ibid, page 81, line 18 [^54]: Ibid, page 81, line 20 [^55]: Transcripts of meetings, Exhibit 50A at trial, May 12, 2012 meeting,Tab 1, at pages 4, line 19-22 and 5, line 1. [^56]: Ibid, May 12, 2012 meeting, Tab 1, at page 6, line 6. [^57]: Ibid, August 8, 2012 meeting, Tab 2, page 10, line 15. [^58]: Ibid, August 12, 2012 meeting, Tab 2, page 21, line 1. [^59]: Ibid, November 8, 2013 meeting, Tab 4, page 20, line 22. [^60]: Ibid, November 8, 2013 meeting, Tab 4, page 23, line 20. [^61]: Transcripts of meetings, Exhibit 50B at trial, January 25, 2014 meeting, Tab 9, page 36, lines 11-18. [^62]: Ibid, January 25, 2014 meeting, Tab 9, page 53, lines 18-27. [^63]: Transcripts of meetings, Exhibit 50A at trial, July 23, 2013 meeting, Tab 3, page 7, line 18. [^64]: Transcripts of meetings, Exhibit 50B at trial, January 9, 2014 meeting, Tab 7, page 43, line 21. [^65]: Ibid, January 9, 2014 meeting, Tab 7, page 58, lines 18-24. [^66]: Ibid, January 9, 2014 meeting, Tab 7, page 85, line 20. [^67]: Ibid, January 25, 2014 meeting, Tab 9, page 65, lines 16-19. [^68]: Ibid, January 25, 2014 meeting, Tab 9, p. 53, line 18. [^69]: Jury Charge, pp.123-132, paras. 2-15. [^70]: Jury Charge, pp. 132- 137, paras. 16-24.