COURT FILE NO.: 16-9-761
DATE: 20180529
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANGELINA MARIE CODINA
Defendant
Lynda Trefler and Vanita Goela, for the Crown
Joseph W. Irving, for the Defendant
HEARD: February 26, 2018 and in writing
MOLLOY J.:
REASONS FOR DECISION #8
(Sentencing)
A. INTRODUCTION
[1] Angelina Codina was convicted by a jury of all five offences on the indictment before them: four counts of providing advice to persons on immigration matters without being licensed to do so, contrary to s. 91(1) of the Immigration and Refugee Protection Act (“IRPA”);[^1] and one count of counselling a person to make a misrepresentation in an immigration application, contrary to s. 126 of the IRPA. It is now my task to impose a fit sentence for these crimes.
[2] The trial began on September 11, 2017 with pre-trial applications and continued throughout most of the fall. The jury selection commenced on October 5, 2017 and the trial proper began on October 10, 2017. The jury returned its verdict on November 22, 2017. Thereafter, on January 10 and 11, 2018, I heard and dismissed Ms. Codina’s motion that the charges against her be stayed based on an alleged abuse of process by the Crown.[^2] Throughout all of these applications and the trial, Ms. Codina, who is a disbarred lawyer, represented herself. However, at the conclusion of the trial Ms. Codina retained counsel, Mr. Irving. By at least November 30, 2017, Mr. Irving was retained, with the original intention that he would argue both the abuse of process motion and the sentencing.
[3] After receiving the jury’s verdict on November 22, 2017, and with the agreement of Ms. Codina, I ordered a pre-sentence report. At that time, the expectation was that the abuse of process argument would proceed on December 7, 2017 and the sentencing hearing, if the abuse motion was unsuccessful, would follow on January 10, 2018. With the retainer of counsel who needed more time to prepare, those dates were moved. January 10, 2018 was set for the abuse of process application. Ms. Codina had a change of heart with respect to legal counsel for the abuse of process hearing and elected to represent herself. On January 11, 2018, at the conclusion and dismissal of the abuse application, I fixed February 26, 2018 for the sentencing hearing, a date agreed upon by all parties. Mr. Irving continued to be retained with respect to sentencing.
[4] The pre-sentence report was filed with the court on December 22, 2017, but was not received by Ms. Codina, her counsel, or the Crown until January 10, 2018.
[5] On Friday, February 23, 2018, Mr. Irving, on behalf of Ms. Codina, delivered a notice indicating that on February 26, 2018 (the date fixed for the sentencing hearing), he would be seeking an adjournment. I denied that request. The hearing proceeded before me on February 26, 2018. I ruled that, on an agreed upon schedule, the defence could provide evidence from the Vanier Centre for Women (“Vanier”) along with written submissions as to whether an enhanced credit for time served would be appropriate based on conditions in prison during the periods of Ms. Codina’s pre-trial custody. After one further adjournment, those materials were duly delivered.
[6] The Crown seeks a sentence of two years on each of the four counts of providing legal advice on an immigration matter without a license to do so and three years for counselling a party to make a misrepresentation in an immigration application. The Crown submits that those sentences should all be served consecutively, for a total of 11 years. In addition, the Crown seeks a fine of $20,000 on each offence (for a total of $100,000) and restitution orders in favour of the individual complainants (which would amount to a total of $30,200).
[7] Defence counsel submits that all sentences imposed should be served concurrently, and that with the proper credit for pre-trial custody, the appropriate sentence should be the equivalent of time served. Alternatively, if there is any additional time, it would be less than two years and should be a conditional sentence, to be served in the community rather than in a jail. He further submits that the combination of fines and restitution orders sought by the Crown would be crippling for the defendant.
[8] In the reasons that follow, I deal first with my reasons for refusing the sentencing adjournment sought by Ms. Codina. I then set out the general principles of sentencing that are applicable and deal with each of them in the context of this case. Finally, I provide my reasons for concluding that the application of all these principles brings me to the conclusion that the two-year sentence sought by the Crown for each of the four s. 91(1) offences (Counts 1 through 4 - providing immigration advice) is an appropriate sentence. Further, for the reasons set out, I am of the view that four years is an appropriate sentence for the s. 126 offence (Count 5), which involved counselling a client to make a misrepresentation in an immigration application. Counts 4 and 5 relate to the same parties and transactions. In my view, those sentences are appropriately served concurrently. However, the other offences are separate and distinct and should be served consecutively to Count 5 and consecutively to each other. That would result in a total sentence of ten years, which in all the circumstances I consider to be unduly harsh. Accordingly, I have made the appropriate adjustments to bring the total sentence to seven years. After applying a credit of two years for time served, the remaining sentence is five years. I am also ordering full restitution for each complainant.
[9] My detailed reasons for these conclusions are set out below.
B. THE ADJOURNMENT REQUEST
(i) Grounds Raised
[10] In the notice of application and brief affidavit filed by Ms. Codina in support of the adjournment request, the defence asserted two reasons for needing an adjournment: (1) Mr. Irving had requested documents from Vanier with respect to lock-downs and conditions of overcrowding in the institution and had not yet received them; and (2) the defence objected to portions of the pre-sentence report and requested that a new pre-sentence report be obtained. On the argument of the adjournment request, a further ground was advanced – a man who was a close family friend of Ms. Codina and her mother had died the previous Thursday and they wanted to attend his funeral that very morning, Monday, February 26.
(ii) The Funeral
[11] By the time this argument was raised, it was largely moot. The funeral was in Hamilton on Monday morning at 11:00 a.m. Although this gentleman died on Thursday, apparently Ms. Codina did not learn of it until Sunday and was unable to reach Mr. Irving whose cell phone was not operational. Therefore, by the time anyone knew that an adjournment was being requested on this basis, it was already after 10:00 a.m. in Toronto, and attending an 11:00 a.m. funeral in Hamilton was virtually impossible, notwithstanding Ms. Codina’s protestations that funerals in the Greek community are lengthy.
[12] Ms. Codina professes to have many family friends within the Greek community in Hamilton. Nevertheless, she did not arrange for her mother to attend the service with one of those close friends, but instead brought her to the courtroom. Her mother is 90 and suffers from Alzheimer’s dementia. While I consider it both presumptuous and inappropriate for Ms. Codina to have brought her mother to court, her presence there did not persuade me that I should grant an adjournment request that was otherwise without foundation.
(iii) The Pre-Sentence Report
[13] The defence objected that the pre-sentence report was delivered on December 22, 2017, prior to its author receiving a bundle of material Ms. Codina had prepared, which she wanted to be taken into consideration. Ms. Codina alleges, through her solicitor, that she delivered these documents on Christmas Eve. This material purportedly included Ms. Codina’s curriculum vitae as well as a number of letters of support and other documents demonstrating her strong connections and good work within the local Greek community.
[14] This argument does not warrant an adjournment for four reasons.
[15] First, the Probation and Parole Officer (“PPO”) who authored the report interviewed Ms. Codina first by telephone and a second time in person. Ms. Codina brought her mother with her to the personal interview. Ms. Codina reported to the PPO that she had a “strong group of personal friends and associates.” The PPO was unable to rely on Ms. Codina’s mother as a collateral source to confirm any of this information due to her medical issues. Ms. Codina refused to consent to the PPO contacting her “peer group” in order to confirm the information provided.[^3] It was after this, and at a very late date, that Ms. Codina attempted to put before the PPO letters of support from members of her community. Ms. Codina was thereby trying to control the message herself and prevent the PPO from getting an honest assessment of her character from others.
[16] Second, if Ms. Codina felt it important to provide further information to the PPO and needed to ensure that it got to her before the report was completed, she could have either delivered her material in a more timely manner, or alerted the PPO that it was coming. She did neither.
[17] Third, upon receiving the pre-sentence report on January 10, 2018 and seeing that it did not refer to the additional information, it was open to Ms. Codina to request that the PPO review the additional material and provide a supplementary or amended report. She did not do so.
[18] Fourth, although Ms. Codina provided a Record for purposes of sentencing (which was marked Exhibit 9), it did not include any of the alleged letters of reference or other documentation. She did bring a copy of her resume, which was marked as Exhibit 2 on the sentencing. It does not provide any information that would have had any effect on the pre-sentence report. If the other material was sufficiently important that it could have affected the PPO’s report, I would have expected that Ms. Codina would have provided it to the court. She did not.
[19] Accordingly, I would not order a further pre-sentence report because of the alleged impact this “mystery” material might have had on the result.
[20] The defence also objected to the pre-sentence report on the grounds that the PPO relied improperly on hearsay and media reports she found on the internet and failed to remain objective and even-handed.
[21] My primary concern about this objection is that it was made for the first time on the eve of the sentencing scheduled for February 25, 2018. The pre-sentence report had been in the hands of both Ms. Codina and her counsel since January 10, 2018. If there was a legitimate concern about bias on the part of the PPO, I would expect that to have been raised at an earlier date.
[22] In an abundance of caution, I have edited the report by deleting the three references to media reports. In sentencing Ms. Codina, I will not be relying on anything at all that was ever said about her in the media.[^4]
[23] That said, the references to media reports in the pre-sentence report are relatively innocuous and are mainly directed towards reports that Ms. Codina has been sued dozens of times in Small Claims Court by former clients and has never paid any of the judgments against her. I have deleted these references from the report, but they would not have affected my determination of a fit sentence in any event.
[24] I do not see anything in the pre-sentence report that demonstrates a lack of impartiality or any evidence of bias on the part of the PPO. Some aspects of the pre-sentence report are not favourable to Ms. Codina, but that does not make it biased. In my view, there is no basis to order a second pre-sentence report and therefore no basis to have adjourned the sentencing for that purpose.
(iv) Vanier Records
[25] Ms. Codina was convicted on November 22, 2017. At that time, she agreed to a sentencing date of January 10, 2018. That date was subsequently moved to February 26, 2018. Neither she nor her counsel took any steps to request documentation from Vanier until February 14, 2018. Given that the records go back to 2014 and 2015 and require a day-by-day review of lockdowns and cell conditions over a period of 543 days, it is hardly surprising that they were not produced within 10 days of being requested.
[26] Notwithstanding that it was defence delay that resulted in these documents not being available on February 26, 2018, I recognized their potential relevance in relation to the credit to which Ms. Codina may be entitled for her time in custody. However, they are not relevant to any other aspect of the sentencing process. Mr. Irving, with the professionalism and courtesy he has displayed throughout, agreed that this aspect of the sentencing could be addressed by filing the documents when received and making written submissions about the credit for time served. A schedule was agreed upon for that purpose.
[27] Accordingly, I rejected the request for an adjournment and the sentencing hearing proceeded before me as scheduled.
C. GENERAL PRINCIPLES
[28] Determining the appropriate sentence for any given offence and offender is a highly individualized process, but nevertheless one that is guided by established principles set out in the Criminal Code[^5] and in the case law.
[29] As a starting point, one must recognize the underlying “fundamental purpose” of sentencing, which (as stipulated in the Criminal Code) is “to protect society and to contribute along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful society by imposing just sanctions.”[^6]
[30] A just sentence must be directed to one or more of the following objectives set out in the Criminal Code:[^7]
(a) denunciation of the unlawful conduct and recognition of the harm done to the victims and/or the community;
(b) specific deterrence of the individual offender and general deterrence with respect to other persons in the community who might be tempted to commit similar offences;
(c) separation of the offender from society, where necessary;
(d) rehabilitation of the offender;
(e) reparation for the harm done to victims and/or the community; and
(f) promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victims and/or the community.
[31] In addition, the sentencing judge must be mindful of the overarching fundamental principle of proportionality. A fit sentence is one which is proportionate to the gravity of the offence and the degree of responsibility (or moral blameworthiness) of the offender.[^8] A fit sentence will not always be a term of imprisonment. Indeed, options short of imprisonment must be considered first, provided they satisfy other requirements of sentencing. The Criminal Code specifies that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”[^9] and that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offenders.”[^10]
[32] In determining an appropriate sentence, the judge must consider various factors that can be said to be either aggravating or mitigating and increase or decrease the sentence accordingly. There are some factors that are deemed by the Criminal Code to be aggravating. The deemed factors that are of potential relevance in the case before me are: the alleged relationship of trust between the offender and the victim; the significant impact on victims in vulnerable circumstances; and, the fact that the offences were committed while the offender was on parole.[^11]
[33] Where a person is being sentenced for more than one offence, the sentencing judge must take into account the principle of totality. Where the sentences imposed are directed to be served consecutively, the sentence must not be crushing, or “unduly long or harsh.”[^12]
[34] Finally, a sentence may be seen as unfair if it is significantly divergent from what other judges have imposed in similar circumstances. The parity principle requires that a sentence “should be similar to sentences imposed on similar offenders for similar offences in similar circumstances.”[^13]
D. PROPORTIONALITY
(i) Generally
[35] The principle of proportionality is of paramount importance in sentencing. This requires a consideration of the circumstances of the offence and also the circumstances of the offender. The more serious the nature of the offence, the more onerous will be the sentence. Crimes of violence that are life-threatening will be at the upper end of the gravity spectrum. The maximum or minimum sentences specified for an offence can be one indicator of the extent to which Parliament considered the offence to be a serious one. Likewise, the particular evil that the offence section is designed to address can be a relevant factor in determining the gravity of the offence. Some offences cover a wide spectrum of conduct. In all cases, and especially in cases with a wide spectrum of possible conduct, it is relevant to consider the particular conduct that constituted the offence.
[36] The circumstances of a particular offender and his or her role in the particular offence may also be a strong indicator of what the appropriate sentence should be. The sentencing judge is required to take into account the moral blameworthiness of the offender. For example, an offender who acted alone and is solely responsible for the crime will attract a higher sentence than an offender, who played a minor role compared to other participants, even though being responsible for the offence. The person’s motivation in committing the offence may also be relevant. To use a classic example, theft by an impoverished person motivated solely to feed her children would be seen as less blameworthy than theft motivated solely by greed.
(ii) The Circumstances of the Offences
[37] Ms. Codina was convicted of four charges under s. 91(1) of the IRPA, each involving a different set of complainants. The offences covered a time period from 2011 to 2014. The essence of each offence committed is that Ms. Codina provided legal advice to individuals seeking to immigrate to Canada, knowing that she was not licensed to do so. The IRPA provides that only lawyers who are licensed to practice law by a provincial licensing body or immigration consultants licensed by the Immigration Consultants of Canada Regulatory Council are permitted to provide advice or represent individuals in connection with an application under the IRPA. Ms. Codina has a law degree but she was disbarred by the Law Society of Upper Canada and is not licensed to practice law anywhere. She also was not licensed as an immigration consultant. The maximum sentence for an offence under this provision (when prosecuted by indictment as was the case here) is two years imprisonment or a fine of $100,000, or both. There is no minimum sentence.
[38] Ms. Codina was also convicted of counselling a person to make a misrepresentation in an immigration application, contrary to s. 126 of the IRPA. Again, there is no minimum sentence. The maximum sentence is five years’ imprisonment, or a fine of $100,000, or both.
[39] In an earlier decision dealing with the interpretation of sections 91(1) and 126 of the IRPA, I reviewed the history and purpose of these provisions.[^14] I will not repeat all of that analysis here. Suffice to say that penalties were added to the regulatory provisions of the legislation in an attempt to better protect vulnerable potential immigrants by cracking down on dishonest or fraudulent immigration consultants. Further, the penalties were deliberately set higher than the Criminal Code provisions for other summary conviction offences in order to underline the seriousness of these offences and enhance the factors of deterrence and punishment. The ultimate intent of the provisions is to protect the vulnerable and to enhance public confidence in Canada’s immigration program. The immigration system is greatly reliant on the honesty and accuracy of information provided in immigration applications. For the immigration system to operate as designed, the truthfulness of the information provided is imperative. Any dishonesty undermines the system. However, unscrupulous immigration consultants in Canada are in a special position to thwart the system by advising people outside Canada on what lies they can profitably tell in order to gain admission. The result is that unqualified, and often undesirable, applicants are able to successfully enter Canada by fraudulent means, taking the places of other more deserving candidates. These are the evils this legislation is meant to address.[^15]
[40] During the period of time covered by these offences, Ms. Codina was the sole shareholder of an immigration consulting company operating as “Codina International.” Codina International advertised its services in different cultural community newspapers in Ontario, claiming to have 30 years’ experience and dozens of branch offices all over the world. It was advertisements such as these which attracted the complainants to seek out and retain Codina International to advise and assist them in their immigration applications. Codina International had many employees, including some that were licensed to provide legal advice to immigration clients. However, each of the offences of which Ms. Codina was convicted involved her personally either advising or offering to represent clients of Codina International or personally counselling misrepresentation.
Count One
[41] Under Count 1, Ms. Codina was convicted of providing immigration legal advice to Jalil Chitizadeh and his daughter, Sara Chitizadeh. Initially, Mr. Chitizadeh, based on advice from Ms. Codina, retained the firm to apply for a Temporary Residence Permit for his daughter. Prior to that proceeding, Sara Chitizadeh entered Canada on a false passport and claimed refugee status. Codina International staff then completed the necessary forms for the refugee claim, which Sara Chitizadeh presented in person to Immigration Canada. The claim was rejected because Ms. Chitizadeh was claiming persecution in her home country of Iran, but had entered Canada from Mexico where she had already made a refugee claim. After the Canadian immigration officer rejected the application, Ms. Codina personally spoke to the immigration officer on behalf of Sara Chitizadeh and attempted to persuade her to change her decision. When that attempt failed, she advised Mr. Chitizadeh and his daughter to return to her office, where she provided further advice about their rights of appeal and other options. However, they opted not to continue with Codina International. A detail of interest in respect of this particular offence is that the immigration forms completed by Codina International included a declaration that a lawyer named Sunny Vincent assisted in the preparation of the forms and had been informed by Sara Chitizadeh that she completely understood its nature and effect. Mr. Vincent is a lawyer, and he testified at trial. He testified, and I accept: that he had never been employed by Codina International; that he had never met Sara Chitizadeh or her father; that he knew nothing about their case; and, that the signature on the form purporting to be his was not his signature. Sara and Jalil Chitizadeh also testified that they had never met Sunny Vincent. I am satisfied of these facts beyond a reasonable doubt, although there is no evidence as to whether Ms. Codina herself committed the forgery or whether she knew who did. Mr. Chitizadeh paid $5250.00 for these services and has not been repaid any of it.
Count Two
[42] Under Count 2, Ms. Codina was convicted of providing immigration legal advice to Mahjub and Sohaila Ahmadi. Based on the advice Ms. Codina provided, the Ahmadis retained Codina International to obtain a Temporary Residence Permit for the family of Mrs. Ahmadi who were then living in Pakistan as refugees. Ms. Codina told them their family would be in Canada within three months. The total fees would be $11,000, payable in three installments. Many months passed after the second installment was paid and Mr. Ahmadi was having considerable difficulty finding out what was happening with the application. He made an appointment to meet with Ms. Codina about the matter and was told by her that payment of the third installment was required before the application would be sent to the government and before he would be given a copy of it. Mr. Ahmadi disputed that the third installment was due (which was, in fact, an accurate interpretation of the retainer agreement). When he continued to press Ms. Codina for evidence that any progress had been made on their file, she showed him four pages of a document purporting to be an application for his in-laws to be admitted to Canada on humanitarian and compassionate grounds. There were numerous factual errors in those four pages, which Ms. Codina assured him would be corrected before the documents would be submitted. Ms. Codina then told him that they were missing some of the background materials they needed to complete the application. However, the Ahmadis testified that they had lost confidence in Ms. Codina and elected not to proceed further. They paid $6450.00, none of which has been repaid.
Count Three
[43] Under Count 3, Ms. Codina was convicted of providing immigration legal advice to, and offering to represent, Nikolaos Mouzos. Based on advice from Ms. Codina, Mr. Mouzos retained Codina International on August 16, 2012 to represent him in an application to immigrate to Canada from Greece as a self-employed entrepreneur in the field of interior design, for a fee of $15,000. He paid the first installment of $7500.00. At the time of the initial retainer, Ms. Mouzos was in Canada visiting relatives on a temporary visitor visa. In December 2012, when his visitor’s visa was about to expire, he signed a further retainer agreement and paid Codina International a further $1500 to obtain an extension of his visitor’s visa. On February 22, 2013, Mr. Mouzos attended with his cousin and two nieces at Ms. Codina’s office and demanded to see her. They were angry about the fact that nothing seemed to be happening with his immigration case and about things they had read about Ms. Codina on the internet. The purpose of the meeting was to fire the firm and demand that Ms. Codina return the $9000.00 Mr. Mouzos had already paid. One of Mr. Mouzos’ nieces recorded their interactions with Ms. Codina on her cell phone. The recording provides an invaluable insight into Ms. Codina in action. During the initial portion of the confrontation, Mr. Mouzos’ family members were extremely hostile and aggressive. Ms. Codina, however, was able to calm down the situation. She did not agree to repay any of their money. However, she did agree to proceed with his application without requiring that the final installment of the contract price be paid upfront and promised to refund the whole amount if the application was not successful. She was very persuasive in this “sales pitch,” to the extent that the family not only agreed to proceed, but insisted that they would deal only with Ms. Codina personally, rather than through one of her staff. In the course of attempts to persuade the family, Ms. Codina made the following statements:
I will tell you, first of all, he will be approved.
Trust me, he will not get denied. He will not get denied.
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.
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.
I appreciate that you have the confidence also to do - to deal directly with me. But trust me, I am a very professional person.
And trust me, I have over 30 years’ experience, okay in this.
I know everything okay, okay.[^16]
[44] The audio recording shows the extent to which Ms. Codina gave advice and the force with which she was able to persuade people to pay her for her services. Of particular interest is Ms. Codina’s reference to herself as having 30 years’ experience, which harkens back to the Codina International advertisements claiming 30 years’ experience.
[45] Although Mr. Mouzos agreed at this meeting for Ms. Codina to proceed, he changed his mind quickly thereafter and reported Ms. Codina to the authorities. He had paid a total of $9000, none of which was repaid.
[46] Under Count 3 on the indictment, it was open to the jury to find that Ms. Codina had provided advice to Mr. Mouzos and/or that she had also agreed to personally represent him on his immigration application. It is not possible to determine from the guilty verdict if the jury concluded that Ms. Codina did both. Based on the evidence at trial, I am satisfied beyond a reasonable doubt that Ms. Codina did in fact do both. She clearly provided legal advice that was specific to Mr. Mouzos and tailored to his personal circumstances. Although another lawyer’s name appeared on some of the documents in the file for Mr. Mouzos at the Codina International office, the Mouzos family were not aware of that and had never met this lawyer. Based on the audio recording of the meeting on February 22, 2013, I am satisfied beyond a reasonable doubt that Ms. Codina went one step further and assured the family that she would personally handle the matter for Mr. Mouzos. This constitutes an offer to represent him in an immigration proceeding. I find this to be an aggravating factor on sentencing.
Counts Four and Five
[47] Under Count 4, Ms. Codina was convicted of providing immigration legal advice to, and offering to represent, Farhad Abdolvahabi in connection with an immigration application. Under Count 5, Ms. Codina was convicted of counselling Mr. Abdolvahabi to make a misrepresentation in an immigration application. Mr. Abdolvahabi was acting throughout on behalf of his sister-in-law Sarasadat Housseini (who was a civil engineer in Iran) and her husband Behzad Mahmoudi (who was a psychiatrist in Iran). In order to be sure he was correctly conveying information to his in-laws, Mr. Abdolvahabi audio recorded all of his meetings with Ms. Codina. Those recordings, and transcripts thereof, were marked as exhibits at trial. There were seven meetings, ranging from May 12, 2012 to January 25, 2014.
[48] It is abundantly clear from the tape recordings, that Ms. Codina was not only directly providing legal advice, but pushing Mr. Abdolvahabi to proceed. At times, in particular during their last two meetings, she was literally shouting at him to do as she was advising him, even urging him to proceed without the instructions of his in-laws. In one of my earlier decisions dismissing Ms. Codina’s application for a directed verdict, I quoted from the transcripts to provide examples of her providing such advice. Ms. Codina’s own words demonstrate graphically the extent of her involvement and the nature of the advice provided. They include the following:[^17]
“Let’s go for that” (referring to a skilled worker application for Behzad Mahmoudi). 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”[^18]
“I wouldn’t bother with Saskatchewan right now because these people are professionals.”[^19]
“This is my recommendation to you.”[^20]
(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.”[^21]
“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.”[^22]
“I personally think we should use you to sponsor her, okay?”[^23]
“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.”[^24]
“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.”[^25]
“Forget Eshita. I’m taking control here.” [Eshita was a staff member Mr. Abdolvahabi occasionally dealt with, often by email or on the phone][^26]
“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.”[^27]
“I’ll get it ready for you. I’ll give it top priority, okay?”[^28]
“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].[^29]
“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, 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. 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.”[^30]
[49] It was in this same series of meetings that Ms. Codina proposed to Mr. Abdolvahabi various schemes to bring his in-laws into Canada, some of which included misrepresenting significant material facts in the applications. Mr. Abdolvahabi never proposed anything improper or untrue. Indeed, at various points in their meetings Mr. Abdolvahabi stated his disapproval of any dishonesty in dealing with the immigration application.
[50] The Crown particularized this charge as relating only to Ms. Codina’s advice with respect to an application for immigration based on the intra-company transfer program. This program requires two related companies – one abroad and one in Canada. One company must own, or be affiliated with the other. The employee being transferred must be currently employed with the foreign company, and must have been employed for at least one-year of the past three years. There must be an existing job in the Canadian company, which the foreign employee is uniquely qualified to fill either because of it being a high managerial or executive position or because it required specialized knowledge about the company or its processes that nobody in Canada would have. The foreign employee’s job description in the foreign company must be similar to the job in Canada.
[51] The jury had before it numerous examples of material misrepresentations counselled by Ms. Codina in connection with the intra-company transfer program. It is not possible for me to determine which of these examples were relied upon by the jury to reach their verdict. For the purposes of sentencing, I will outline those examples that I am satisfied beyond a reasonable doubt meet all the essential elements of the offence under s. 126 of the IRPA.
[52] Ms. Codina proposed three different schemes by which she suggested the intra-company transfer could be presented. I note at the outset that there was no legitimate company in Canada with the required connection with a company in Iran and no existing job in Canada for which Mr. Abdolvahabi’s sister-in-law was uniquely qualified. Further, the sister-in-law was not even a current employee of a company in Iran; she was a self-employed civil engineer. Any application under the intra-company transfer program involved misrepresenting these crucial elements.
[53] One option was proposed by Ms. Codina at meetings with Mr. Abdolvahabi on August 12, 2012 and July 23, 2013. She suggested using a company in Iran in which Mr. Abdolvahabi, along with his brother-in-law, had been a director 30 years earlier. The Canadian company she first suggested using was a company Mr. Abdolvahabi had owned in Canada previously, and which had an affiliation with the Iranian company, but which Mr. Abdolvahabi had sold in March 2011. I find Ms. Codina breached s. 126 of the IRPA by counselling Mr. Abdolvahabi to make the following misrepresentations in connection with this proposal:
- 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: “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.”[^31]
- Mr. Abdolvahabi 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: “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.”[^32]
- 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: “Well, it doesn’t matter, we could put it, nobody has to know, that’s fine. We’re going to go ahead.”[^33]
- 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: “…we will say that your sister, for example, this lady, that she was managing, that she was working in an executive or specialized knowledge.”[^34] On that same issue, she stated: “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.”[^35]
[54] At a meeting on January 9, 2014, Mr. Abdolvahabi told Ms. Codina that his sister used to work for a different construction company in Iran and that company was willing to set up a company in Canada, which would be their subsidiary and into which the sister-in-law could be transferred. Ms. Codina asked Mr. Abdolvahabi if his sister-in-law had worked for this company for one year in the past three years and he replied that he did not know and would have to ask. Ms. Codina then immediately responded, “We could say that, who cares, right? We could say… been with them three years.”[^36] I am satisfied beyond a reasonable doubt that this also would constitute counselling a material misrepresentation in breach of s. 126 of the IRPA.
[55] The final meeting between Mr. Abdolvahabi and Ms. Codina was on January 25, 2014. By then there had been various proposals by Ms. Codina as to how the intra-company transfer could be structured, all of which involved some degree of misrepresentation and none of which were the kind of international business relationship the intra-company transfer program was designed to facilitate. There had also been discussion of Mr. Abdolvahabi’s in-laws going the more straight-forward route of applying to immigrate to Canada under the skilled worker program based on their true professional qualifications. Mr. Abdolvahabi testified, and I accept, that his in-laws did not want to participate in the intra-company transfer scheme and instructed him to tell Ms. Codina to proceed only with the skilled worker application. Ms. Codina was adamant about proceeding with the intra-company transfer, even if it meant proceeding with both applications at the same time. In this discussion, she was extremely forceful in attempting to persuade Mr. Abdolvahabi to proceed with the intra-company transfer, which he refused to do.
[56] Not long after this meeting, Mr. Abdolvahabi reported Ms. Codina’s conduct to the authorities and turned over to them his recordings of their meetings.
[57] It is important to note that Ms. Codina was the driving force behind these proposals and Mr. Abdolvahabi was resistant to the whole idea. He testified to that effect and also made comments to Ms. Codina in their meetings. For example, at a meeting on November 8, 2013, he reiterated his preference for the skilled worker program over the intra-company transfer, stating “Cause I wanna be honest, you know … with you, with government here with Canada. With, you know, what I’m thinking is just not trustworthy.” [^37]
[58] Mr. Abdolvahabi paid $9500.00 to Codina International, none of which has been repaid.
The Circumstances of the Offender
[59] Angelina Codina is now 60 years old. She is single, has no children, and currently resides with her 92-year old mother. Her father died in 1990. Her mother never remarried. She has one sibling, a sister who apparently lives in the United States.
[60] Ms. Codina was born in Uruguay to a Greek mother and Spanish father. The family left Uruguay when Ms. Codina was three years old and subsequently lived for periods of time in Brazil and Greece. They immigrated to Canada in 1965/6 living first in Montreal, but eventually settling in Hamilton, Ontario when Ms. Codina was about 10 years old. Ms. Codina became a Canadian citizen in 1969.
[61] Ms. Codina graduated from university with a degree in Philosophy and Political Science. She reported to the PPO that she is fluent in English, French, Spanish, Greek and Italian and that she can read and write German, although she cannot speak it fluently. Ms. Codina completed her law degree in 1981 and was called to the Bar of Ontario in 1983. She practiced law in Ontario from 1983 through to 2002.
[62] In 1998, Ms. Codina was convicted of fraud by Humphrey J. of this Court and sentenced to six months imprisonment. She was found to have fraudulently concocted a document (Exhibit 48 at trial) in relation to services she had provided as a lawyer and billed to the Ontario Legal Aid Plan. The trial judge held that she defrauded the Legal Aid Plan of $20,000. Ms. Codina appealed her conviction and sentence to the Ontario Court of Appeal.[^38] Her appeal was dismissed. The Supreme Court of Canada denied leave to appeal. With respect to the conviction itself, the Ontario Court of Appeal held:
The appellant was the author of exhibit 48. The finding of concoction flows directly and without alternative from the trial judge’s rejection of the appellant’s evidence with respect to exhibit 48. The trial judge also found that the appellant’s evidence concerning exhibit 48 did not give rise to a reasonable doubt. We, therefore, think that the trial judge did not err in concluding that exhibit 48 was concocted.[^39]
[63] In also rejecting the appeal from sentence, the Court of Appeal held:
This was a fraud on the public purse by an officer of the court. If anything, the sentence imposed was lenient.[^40]
[64] In 2002, Ms. Codina was disbarred by the Law Society of Upper Canada for conduct unbecoming a barrister and solicitor in relation to the criminal conviction for fraud.[^41]
[65] Meanwhile, Ms. Codina was already in legal trouble before the courts in the United States, specifically in the State of New York. In 1996, Ms. Codina opened an office of Codina Partners International (CPI) in Manhattan. After a number of complaints from CPI clients about Ms. Codina to disciplinary committees and the police, the New York Attorney General commenced an investigation that lead to her being charged with 28 counts of crimes including grand larceny, scheme to defraud and the unlicensed practice of law between January 1996 and February 1999. She was convicted by a jury on all but one count of grand larceny and sentenced to an aggregate term of 9 1/3 to 28 years. Those convictions were set aside due to a technical jurisdictional irregularity in relation to the seizure of evidence pursuant to a search warrant. A new trial was ordered. At the second trial, 15 former clients of CPI testified on behalf of the State. In June, 2004, Ms. Codina was again convicted by a jury of multiple charges including one count of “scheme to defraud” (involving engaging “in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses”) and multiple counts of larceny by false pretenses (involving obtaining money by means of a false statement concerning a material fact upon which the party relied). Ms. Codina was sentenced to a prison term of an aggregate of 5 to 15 years. She appealed, but her appeal was unanimously dismissed by the Supreme Court, Appellate Division, First Department.[^42]
[66] Ms. Codina served five years of that sentence in a prison in New York State, at which point she was released and deported to Canada.
[67] Ms. Codina submits that these American convictions in 2004 should not be counted against her because she successfully obtained leave to appeal to the Court of Appeals of New York from the Appellate Division decision upholding the convictions. It is correct that Ms. Codina, through her counsel, obtained leave to appeal on October 31, 2014. However, her counsel did nothing further on her behalf and her appeal was dismissed on January 6, 2015. Ms. Codina filed correspondence from a United States attorney James McGuire (who was formerly one of her associates), in which Mr. McGuire asserts he was unable to proceed with the appeal because of Ms. Codina’s incarceration in Canada and her inability to access the necessary documents and assist in the preparation of materials for the Court. He reports Ms. Codina’s intention to seek to have the New York State conviction reopened once she is finished with the Canadian charges against her. I have no evidence as to the bona fides of Ms. Codina’s intention to appeal, nor the merits of her appeal. I do note that she was twice convicted by a jury on the merits, that her time for appeal from the second set of convictions has long since expired, and that she has already served her time and been deported. Although not a lot turns on this, I also note that leave to appeal was granted by the Court of Appeals for New York on October 31, 2014. Ms. Codina was released on bail on the Ontario charges on July 15, 2014 and did not return to custody until she was re-arrested in September 2015, eight months after the appeal had already been dismissed. For the period of time between when leave was granted and the appeal dismissed, Ms. Codina was not in custody.
[68] I am treating the New York convictions as valid and final.
[69] Upon her return to Canada from prison in New York, Ms. Codina continued to operate businesses providing immigration advice to persons seeking to immigrate to Canada. On November 20, 2009 she incorporated a company (Codina International Group, Inc.) of which she was the sole officer, director, and shareholder. She alone had control over that corporation’s bank account. On November 9, 2012 she incorporated another company (CIC International Group (Canada) Inc. Ms. Codina’s sister and her American colleague, James McGuire, are listed as directors of that company along with Ms. Codina, but both resided in the United States. Ms. Codina was the sole shareholder and had sole control over the company’s bank accounts. That company continued on the same business as the previous one. Both companies carried on business as “Codina International.” Apart from her few months in custody in 2014, from the time of deportation from the United States until the time of her second arrest in September 2015, Ms. Codina was earning her living through Codina International.
[70] Ms. Codina bears sole responsibility for the crimes of which she has been convicted. She was not held responsible for the wrongdoing of others within her control, but only for her own conduct. This was deliberate and planned conduct. Contrary to what one sometime finds in immigration cases, there was no altruistic motive here. These crimes were committed for financial gain. Also, this conduct was entirely instigated by Ms. Codina. She held her company out for hire, and then she personally provided legal advice to clients who attended.
[71] Ms. Codina told the PPO that since her release from prison on bail, she has written a romance novel for which she is seeking a publisher. She also reported that she is working on starting another company to provide arbitration and mediation services, as well as a marketing company to assist multi-level income companies by drawing in budding entrepreneurs.
[72] Ms. Codina continues to maintain her innocence, which is her right. She has therefore expressed no remorse as to the fate of the complainants. This does not count against her, as it is inextricably bound up with her plea of “not guilty.”
[73] However, it is apparent to me from Ms. Codina’s past crimes and her conduct at the heart of these most recent convictions, that she is a person who preys on vulnerable people. She is a forceful personality, vehement about the righteousness of her own cause, and a person who can rarely, if ever, admit her mistakes. She is not a person who learns from experience and she has no respect for authority. It is clear from her history, as well as these offences, that she is fundamentally dishonest. She is also a revisionist historian, by which I mean that her version of her own history is wholly unreliable. On many occasions during the trial, Ms. Codina would assert that certain evidence existed or that a witness had said a certain thing favourable to her cause. Many times this was simply wrong. I don’t think Ms. Codina was always lying or deliberately trying to deceive the court on those occasions. It would be a lie too easily exposed. Rather, Ms. Codina has the capacity to believe a thing is so, simply because she wants it to be so. This is a matter of some concern when she is interacting with and advising vulnerable people. I agree with the assessment of the PPO that Ms. Codina’s future career plans “potentially opens up access to a new victim pool.”
E. DENUNCIATION AND DETERRENCE
[74] The purpose of s. 91(1) of the IRPA is to ensure that people providing advice or representation to potential immigrants to Canada are properly qualified, licensed and subject to supervision. This safeguard provides some measure of protection for the vulnerable class of prospective immigrants who have historically been preyed upon by unscrupulous and/or incompetent immigration consultants. This, in turn, maintains the overall integrity of the Canadian immigration system. The purpose of s. 96 of the IRPA is even more directly linked to the integrity of the system as a whole, by ensuring that decisions made by Canada’s immigration authorities are based on accurate and truthful information.
[75] Crimes of this nature often have a profound impact on the potential immigrants and their families who are the victims of the criminal conduct, and this case is no exception. However, these crimes also have an impact on the integrity of the immigration system itself. That is why judges imposing sentences for these types of crimes have consistently recognized that deterrence and denunciation are of paramount importance in determining a fit sentence.
[76] In one of the early and oft-cited cases on this issue, R. v. Li,[^43] Madam Justice Stromberg-Stein of the British Columbia Supreme Court made this point eloquently, as follows (at paras. 7 and 9):
Canada is a multi-cultural, multi-racial society. Immigration is encouraged and Canada is enriched by the immigrants that it admits. Thousands of qualified immigrants are admitted every year. Canada must have the ability to protect and control its borders and screen and control the flow of migrants into this country so that only those deemed qualified are granted entrance to this country. Canada is entitled to select immigrants who reflect the values of Canadian society. Those migrants who are exploited or funded by criminal organizations, or who may owe an allegiance to or be vulnerable to unsavoury elements, are unlikely to be considered desirable or acceptable migrants to this country.
There is an adverse impact on all Canadians due to the actions of those who facilitate the entry of illegal migrants to Canada, or to Canada as a back door to the U.S.A. Law-abiding Canadians who travel to the U.S.A. are faced with tighter border security and restrictions. There is an astronomical cost, borne by the Canadian taxpayer, associated with processing the claims of illegal migrants, returning them to their country of origin and prosecuting the organizers. The abuse of the refugee process, facilitated by the migrant smugglers, undermines public confidence and support for the refugee process and fuels racial prejudice and racial tension in the community. The growing trade in people smuggling must be deterred because it adversely impacts on all aspects of Canadian society.
[77] Although the Li case involved human smuggling, it has been applied by many courts dealing with the same offences committed by Ms. Codina in the case before me.[^44]
[78] In R. v. Dhalla,[^45] Tulloch J. (as he then was). sitting on appeal from a sentence imposed by provincial court judge on summary conviction for a breach of s. 126 of the IRPA, held as follows (at para. 17):
… a number of concerns are raised in relation to offences involving misrepresentations to border authorities and people smuggling including: the adverse impact on all legitimate migrants and Canadian citizens when others jump the cue; serious national security concerns, astronomical costs, and decreased liberty for all citizens. There is no doubt that illegal smuggling and migrating with false identities encourages disrespect for the immigration system which could have disastrous consequences.
[79] The decision in Dhalla was cited by Downes J. in R. v. Li,[^46] a case in which an immigration consultant in Ontario was convicted of multiple counts of counselling misrepresentation under the IRPA and also forgery under the Criminal Code. Justice Downes held as follows (at para. 28):
While this case does not involve the smuggling of people per se, in my view the concerns expressed in R.v. Dhalla are equally palpable in cases such as this one where the government is basing its decisions about immigration status on the basis of false documentation generated for profit and submitted as true, intending the authorities to rely on it. General deterrence and denunciation have a particular resonance in these circumstances. Thousands of people wait patiently each year for their citizenship and residence applications to be processed. Many are no doubt refused. It seems to me that those who facilitate and engage in the cheating of that system for financial gain must be sentenced in a fashion that provides absolutely no incentive for others to follow suit and goes some way towards assuring genuine applicants that cheating the system will not be tolerated.
And further, at para. 63:
I have given anxious consideration to whether a jail term is required in this case. In my view, it is. The denunciatory and deterrent requirements called for by Ms. Li's conduct simply cannot be properly reflected in anything else. The public must be assured that those who compromise the integrity of such a fundamental national entity as Canada's citizenship and immigration application process and who betray the trust implicit in any such application process will be met with a meaningful consequence. In the circumstances of this case, in my view only a penitentiary sentence will suffice.
[80] In R. v. Mendez,[^47] Dambrot J. held that a conditional sentence would not adequately address the requirements of denunciation and deterrence in a case where an immigration consultant counselled two potential immigrants to make false statements in their claims for refugee status. He held as follows (at paras. 18 - 19):
. . . Ms. Mendez is knowledgeable about Canadian immigration law and has used her knowledge of and experience with the immigration system for profit on an organized and ongoing basis. Whatever the extent of her profit may be, however, it is also apparent from the advice Ms. Mendez gave in relation to the two Argentinian families and to Ms. Borelli that she is utterly disdainful of the immigration and refugee laws of Canada and somehow feels justified in counseling both dishonesty and breaches of the rules to accomplish her ends. In my view, this disdain for the law and the casualness with which Ms. Mendez broke it so seriously attacks and undermines the integrity of our beleaguered immigration and refugee system as to justify treating these offences as very serious, regardless of the extent of remuneration that she received.
In my view, having regard to the nature and circumstances of this offence, a conditional sentence is not consistent with the fundamental purpose and principles of sentencing, and, accordingly, I will not impose a conditional sentence. The offence itself strikes at the integrity of our immigration and refugee system and undermines public confidence in it.
[81] To a similar effect is the decision of Pomerance J. in R. v. Zaher.[^48] The accused in that case was an immigration lawyer practicing in Windsor. She was charged with three offences, all arising from the assistance she provided to a “client” to fabricate a refugee claim so that he could immigrate to Canada from India. The “client” was in fact an undercover police officer. In her decision on sentencing, Pomerance J. wrote (at para. 2):
The integrity of the refugee determination system depends on accurate and honest self-reporting by claimants. Those who abuse the system, by knowingly filing false claims, undermine the humanitarian objectives of the Immigration and Refugee Protection Act and erode public confidence in the administration of the Act. Public support for immigration policies has traditionally been strong, but it has waned from time to time. Distrust and skepticism can breed hostility toward persons admitted into Canada as refugees. It can fuel racial tension and discrimination. Fraudulent claims fuel these negative perceptions and attitudes to the detriment of all Canadians.
And further, at para. 57:
In this case, principles of general deterrence and denunciation are paramount. Because the system relies on self-reporting, offences involving fraudulent claims must be dealt with severely. Lawyers are gatekeepers. They have a duty to vigilantly represent their clients’ interests, but they are also obliged to prevent the system from being abused through fraud. When a lawyer breaches that obligation, by perpetuating a fraud on the system, the sentence must send a message to like-minded offenders and the community at large that the conduct will not be tolerated. This is necessary to deter others from exploiting the system, and to persuade the public that it is less likely to be exploited.
[82] Justice Pomerance concluded in Zaher that, notwithstanding the many mitigating factors (e.g. mental health issues, excellent character references, no criminal record, and no financial motivation), a conditional sentence would not adequately address the principles of denunciation and deterrence. In reaching this conclusion she relied both on Dambrot J.’s decision in Mendez and the Ontario Court of Appeal decision in R. v. Ellis.[^49] The offender in Ellis was a member of the Refugee Protection Division of the Immigration and Refugee Board. Essentially, he was the judge who would determine the eligibility of a young Korean woman for refugee status in Canada. He reserved his decision and had a number of clandestine meetings with this young woman in which he told her he would decide the case in her favour if she would have sex with him. The majority of the Court of Appeal panel upheld the decision of the trial judge (Herman J.) that a conditional sentence would not be appropriate because of the principles of general deterrence and denunciation.
[83] Both the Court of Appeal in Ellis, and Pomerance J. in Zaher referred to the breach of trust by persons in privileged positions within the justice system as an additional factor requiring denunciation and deterrence to be paramount considerations in sentencing. Ms. Codina was not in a position of trust equivalent to Ms. Zaher, and even less so Mr. Ellis. Also, Ms. Codina’s conduct was not as egregious as that of Mr. Ellis. However, in my view, the same general principles apply. By virtue of her background, training, and personality, Ms. Codina was in a position to appear very knowledgeable to clients. She presented a façade of a renowned immigration firm with 30 years’ experience and dozens of offices across the globe. The complainants in this case retained the firm because they trusted Ms. Codina and she exploited that trust. Although no longer bound by a solicitor’s oath, and although not acting in a judicial capacity, she nevertheless was in a position of trust. From that position, she completely disregarded the law and, acting entirely for personal profit, manipulated the system towards her own ends. She is precisely the evil this legislation was meant to avert. Her conduct therefore affects not merely those individuals who were the victims of her crimes, but the integrity of the system as a whole.
[84] I therefore find that general deterrence and denunciation are the paramount factors informing the imposition of sentence in this case. I am also mindful of the need for specific deterrence in this case. Ms. Codina was convicted of very similar offences in the United States, served five years in jail in New York, and then turned around and started carrying on with the very same conduct in Canada. If she learned no lessons from five years in a New York jail, I have to consider what sort of sentence is now required to specifically deter her from committing these or similar offences in the future.
[85] On a similar note, and to this limited extent, the need to separate Ms. Codina from society is also a factor in sentencing. Typically, this factor arises where the offender is violent and likely to harm people if not put in prison. Ms. Codina does not fall into that category. She does, however, represent a threat to the community because she is ungovernable. She is unscrupulous and preys on the unwary. Since she is neither a lawyer nor a registered immigration consultant, there is no governing body to monitor or supervise her conduct. She is entirely unrepentant, indeed, belligerently so. Unless there is a significant attitude shift, of which I see no evidence whatsoever, I believe she will likely commit similar wrongdoing in the future. That said, I do not see this as a factor that affects the ultimate sentence to any significant degree. As I will develop below, once denunciation, deterrence and the aggravating factors are taken into account, the appropriate sentence would already be beyond what is conscionable, resulting in the application of the totality principle to reduce the sentence that would otherwise be fit.
F. REHABILITATION, SENSE OF RESPONSIBILITY, and REPARATION[^50]
[86] I sincerely doubt Ms. Codina will ever admit that she has done anything wrong at all. She is now 60 years old. If she ever does attain some insight into her wrongdoing, rehabilitation might be possible. However, in present circumstances, I do not see any circumstances that would prompt me to change the sentence I would otherwise consider fit in order to take the prospects for rehabilitation into account.
[87] I also do not see that any sentence I impose will affect Ms. Codina’s sense of responsibility for her crimes. This is not a relevant factor on sentencing in this case.
[88] Ms. Codina has not paid any financial reparation to the complainants, nor has she offered to do so. Although I will impose restitution orders, I expect the complainants will have considerable difficulty collecting anything. A prison sentence will go some distance towards acknowledging the harm Ms. Codina has done to the individual complainants and their families as well as to the community and the reputation of Canada’s immigration system.
G. MITIGATING and AGGRAVATING FACTORS
Criminal Record of the Accused
[89] Ms. Codina’s criminal record is a seriously aggravating factor. Her 1998 conviction in Ontario for fraud related to her fabrication of a document that resulted in defrauding the Ontario Legal Aid Plan of $20,000. This involved a serious breach of trust by a lawyer and even though she had no prior criminal record she was sentenced to six months in jail, which was upheld by the Court of Appeal. The Court of Appeal noted that, if anything, the sentence was lenient.The fact that this crime also involved the legal system, as is the case in the matter now before me, is further aggravating.
[90] As a result of her criminal conduct, Ms. Codina was disbarred by the Law Society of Upper Canada.
[91] Ms. Codina’s criminal convictions in New York State are also aggravating, particularly in light of their similarity to the offences now before me.
[92] Finally, it is significant that upon being released from prison in New York, Ms. Codina immediately set out to carry on the same business in Ontario, notwithstanding what happened to her when she did that in New York. The fact that she continued to provide legal advice to clients in Ontario after she had been disbarred by the Law Society is also aggravating. It is an offence under s. 91 for any person to provide legal advice without being licensed. In my view, providing advice without being properly licensed is not as serious a breach as having been a lawyer, having one’s license revoked, and then continuing to provide legal advice in defiance of both the legislation and the Law Society.
[93] The Crown argued that it is an aggravating factor that Ms. Codina was on parole at the time she committed the offences for which she is now being sentenced. When Ms. Codina completed the first five years of her sentence in New York, she was released on parole. However, she was then deported back to Canada. It is not clear to me that she was still subject to the parole provisions from New York after her deportation. Accordingly, I am not treating this as a parole violation and a further aggravating factor. While it is aggravating that Ms. Codina started reoffending so soon after being released from prison, that is not quite as aggravating as committing further crimes while on parole.
Breach of Trust and Impact on the Complainants and Community
[94] In my discussion above on the principles of denunciation and deterrence, I referred to the breach of trust aspect of this offence. I also discussed in that section the impact of these types of crimes on the community as a whole and the integrity of Canada’s immigration system. I need say nothing further here.
[95] It is relevant, however, to discuss the very real and devastating impact these crimes had on the complainants and their families.
[96] Jalil Chitizadeh and his daughter, Sara Chitizadeh, who were the complainants on Count 1, did not file Victim Impact Statements. It was clear from their testimony at trial that the events involving Ms. Codina’s handling of their immigration matter were extremely upsetting to both of them. However, Ms. Chitizadeh had already arrived in Canada and retained a lawyer, through whose efforts she was successful in her goal of remaining in Canada with her young son. Theirs was the only “happy” result.
[97] The Crown filed a Victim Impact Statement from Mahjub Ahmadi in respect of Count 2. Mr. Ahmadi was the person who dealt directly with Ms. Codina, but he did so on behalf of his wife’s sister and their family who lived in Pakistan. He reported that this matter had a “huge impact” on his relationship with his in-laws and also with his wife. He spent considerable time and incurred expenses going back and forth from Hamilton to the Codina International offices and putting together the material for his in-laws’ application, all of which was for naught. Based on the assurances he had been given by Ms. Codina, he lead his in-laws to believe their application would be successful and they invested both their money and their hopes in the plan. When everything fell apart, Mr. Ahmadi’s in-laws blamed him. They accused him of having taken their money. Eventually, they stopped speaking to him entirely. Mr. Ahmadi also wrote that his wife has treated him differently since this happened and suffered from considerable stress herself. He said that even his children blamed him for what happened because they had warned him not to trust what had been suggested as possible, and he went ahead and trusted Ms. Codina anyway. He closed with these words:
At this point our lifestyle just started to demolish gradually because trust was broken, hearts were broken, and promises were broken that were given to a family with so much hope to get another chance to start a brand new life. This case has shattered and destroyed so many individuals emotionally, physically, financially, and will always leave a scar that will be close to impossible to heal.
[98] Ionna Mourtzis and Vassiliki Mourtzis provided Victim Witness Statements with respect to the impact on their family of the events that are subject to Count 3. Both commented on the close relationship they used to have with their cousin Niko Mouzos, who was the person seeking to enter Canada. They both also reported that since these events, they rarely speak with their cousin and believe he resents them for connecting him with Ms. Codina. Each of them also mentioned how their own trust in others has been shaken by their experience with Ms. Codina and how astounded they are that she could act so cruelly and yet feel no remorse. Vassiliki Mourtzis ended her statement by saying, “The only comfort that I have is knowing that Ms. Codina will be incarcerated and unable to harm anyone else as she did me and my family.” Her sister, Ioanna, expressed a similar view writing, “My cousin may never get his money back but, knowing that she will not have the ability to do this to anyone else comforts me.”
[99] With respect to Counts 4 and 5, Victim Impact Statements were provided by Farhad Abdolvahabi (who dealt directly with Ms. Codina on behalf of his sister-in-law, her husband and their two teenage sons living in Iran) and also by Yasamin Abdolvahabi, Farhad’s daughter who assisted him in this project. Mr. Abdolvahabi pointed out that Canada’s immigration rules have now changed in a way that disadvantages his in-laws. Due to their ages, changes in employment and financial circumstances, they have no real chance of immigrating to Canada now, whereas the rules were more in their favour at the time they initially retained Codina International. He referred to Ms. Codina as having “created a cloud of lies and false hope.” He said, “Ms. Codina gave us false options that did not exist and never filed anything for us. She created the greatest failure of my life.” He described the great pain this has caused to the family here and the family in Iran that will never be able to come here, despite the great hopes they had of doing so. He trusted Ms. Codina with his sister-in-law’s “hard-earned” money, all of which is lost. He reported that he has suffered great stress as a result of this, including ongoing heart and blood pressure issues. He stated, “I cannot even begin to describe the stress, anxiety and panic attacks that I have faced because of Ms. Codina.” As he put it, “Ms. Codina has made my family lose hope, trust and their future.”
[100] Yasamin Abdolvahabi reported similarly on the devastating impact this has had for her family and is concerned about the impact it has also had on her father. She wrote:
I still remember the night we found out Codina Intl was not a legitimate business. I remember my father’s face turning pale white and him lying on the bed because he could not breathe properly. I remember I was worried if he was going to have a heart attack. I remember the shame and disappointment in his face. The shame my parents have to go through for losing close to $10,000CAD of my aunt and uncle’s money . . . .You can never repair broken hearts, broken dreams, lost hope and lost trust. This process has put a negative impact on my families’ relationship and it is not something that we can fix. It is something that I can no longer get back.”
[101] This was not just a financial crime. It had a devastating impact on each of the complainants, which spread out through their families. Lives have been negatively changed forever.
Other Aggravating Factors
[102] It is an aggravating factor that Ms. Codina’s motivation for these crimes was financial gain.
[103] It is also aggravating that these were not isolated instances of Ms. Codina giving advice without a license. There was a clear pattern of conduct through the four s. 91 offences. Ms. Codina was running an immigration consulting business in the course of which she routinely gave legal advice directly and indirectly to the firm’s clients.
[104] With respect to the s. 126 offence, it is aggravating that this scheme of deception was driven entirely by Ms. Codina and resisted by the complainants.
Mitigating Factors
[105] Counsel for Ms. Codina filed materials on sentencing which included: (1) a letter from the Toronto Bail Program as to Ms. Codina’s conduct on bail since February, 28, 2017; and, (2) a letter from the doctor of Ms. Codina’s mother.
[106] The Toronto Bail Program confirmed that Ms. Codina reported twice weekly, maintained a stable and approved address, and incurred no new charges. I accept that as far as it goes, but note that the Toronto Bail Program does no active supervision to protect against the secondary grounds of detention. Its role is focused entirely on the primary grounds (i.e. that Ms. Codina would attend court when required), which was not the main concern in this case.
[107] I note as well that this period of bail only commenced on February 28, 2017. Ms. Codina was previously on bail from about the middle of May 2014 to September 17, 2015, at which time she was again arrested by Canada Border Services Agency (“CBSA”) officers and subsequently charged with two breaches of her bail conditions and one additional breach of s. 91 of the IRPA. Ms. Codina’s bail conditions required that she remain in her residence unless in the presence of one of her sureties, with certain exceptions, which included meeting with legal counsel or when required to comply with a court order. On September 17, 2015, CBSA officers found Ms. Codina at her office at Codina International without a surety present. Ms. Codina offered two explanations for this apparent breach. First, she said that she was having documents reproduced at the copy shop in the concourse level of her office building, which she was required to do in order to comply with a production order in a Small Claims Court action. That is nonsense. Her personal attendance without a surety is not required for such activity. She could easily have used couriers or prevailed upon one of her many employees at Codina International to carry out this administrative task. The fact that she would advance this as a basis for not complying with the house arrest provision of her bail is troubling, to say the least. Second, she claimed to be meeting with her counsel. Ms. Codina’s lawyer was not present at her office when she was arrested. However, she maintained that he was on his way there. That may or may not be true. However, as this would be an aggravating factor on sentence, I would need to be satisfied beyond a reasonable doubt that there was no pre-existing arrangement to meet with her lawyer at her own office. I am not able to make that determination on the limited evidence before me. Accordingly, I do not treat this as aggravating.
[108] The other alleged breach of bail duplicated the charge of providing legal advice in breach of s. 91 of the IRPA. Based on their observations and their interview with Kulwant Singh Dhaliwal, the CBSA officers formed the view that Ms. Codina was in the process of giving advice to Mr. Dhaliwal about his immigration application, in breach of the condition of her bail that she not do so. Mr. Dhaliwal testified to that effect at the preliminary hearing, but refused to travel to Toronto from Birmingham, England to testify at trial. I dismissed the Crown’s application to introduce the transcripts of Mr. Dhaliwal’s testimony as his evidence at trial because I was concerned that there had not been a full and fair opportunity for Ms. Codina to cross-examine him.[^51] I am therefore not able to say that this allegation of breach has been proven beyond a reasonable doubt.
[109] I therefore make no finding as to Ms. Codina having breached the conditions of her original bail. However, neither do I find that she complied with those conditions, the proof of which would be on Ms. Codina if it is to be a mitigating factor. Applying the balance of probabilities standard, I would say she was likely in breach rather than compliance. Therefore, this is simply a neutral factor. There is no breach of bail finding (which would be aggravating), nor is there a finding that she complied with the terms of that bail (which would have been mitigating).
[110] The absence of remorse is a similar matter. Ms. Codina continues to assert her innocence, which is her right, and which is fully consistent with an absence of remorse. That is not an aggravating factor. It is the absence of a mitigating factor and may serve to distinguish this case from other cases whether they were guilty pleas or other indications of remorse.
[111] The defence seeks either time served or a conditional sentence so that Ms. Codina can care for her elderly mother. In support of this they filed a letter signed from Dr. Agustin Moreno dated February 12, 2018. Dr. Moreno reports that Ms. Codina’s mother is 90, suffers from Alzheimer’s dementia, has a pacemaker, and has osteoporosis. He further asserts that “it is not recommended that this frail elderly patient live alone” and that she cannot cook or clean for herself. He also states that as her condition worsens, she is at increased risk of “accidental harm serious enough to place her health at risk and/or lead to a preventable hospitalization and/or death.” I have no difficulty accepting all of those facts.
[112] However, Dr. Morena makes two assertions that I do not accept. First, he writes that Ms. Codina’s mother “needs her daughter to feed her and to help dress and bathe her, and to give her daily medications.” I accept that Mrs. Codina might need someone to do those things, but I do not accept that the only way these services can be provided is by her daughter Angelina Codina personally doing so. I note, as well, that the trial began before me shortly after Labour Day and continued until the end of November, during which time Ms. Codina attended daily in court while her mother was presumably at her home in Hamilton. I am left to conclude that Ms. Codina either abandoned her mother to her own devices every day, or that other measures were taken to look after her. I was provided with no evidence either way.
[113] Second, Dr. Moreno writes, “Angelina Codina’s presence is required and her assistance as a caregiver is mandatory.” Again, Mrs. Codina may need a caregiver, about which I express no opinion. However, I do not accept that the only solution for this 90-year-old dementia patient is that her daughter be excused from serving the sentence she deserves, and that justice requires, in order for her to be a live-in caregiver. With the greatest of respect for Dr. Moreno, it is not his role to tell me what is “mandatory” in these circumstances.
[114] Finally, I recognize that compassion is also an important factor in sentencing. I do not wish to see Mrs. Codina suffer for her daughter’s crimes. Perhaps if the fit sentence for Ms. Codina was under two years, it might be appropriate to consider a conditional sentence with strict terms in order to accommodate her mother’s needs, although even then I would be very concerned that such a sentence would not properly take into account denunciation, deterrence and the aggravating factors. However, as I will develop more fully below, the fit sentence for these crimes is more than two years, so Ms. Codina is not eligible for a conditional sentence in any event. I am certainly not prepared to artificially squeeze the sentence to below two years in order to accomplish the purpose suggested by Mrs. Codina’s doctor, particularly in the complete absence of evidence to support its necessity.
[115] I gave Ms. Codina the opportunity to speak on her own behalf before I imposed sentence. She declined.
[116] Accordingly, apart from reporting as required to the Toronto Bail Program and not committing any new offences while on bail, I am not aware of any mitigating factors in Ms. Codina’s favour.
H. PARITY IN SENTENCING
General Principle
[117] Consistency in sentencing is a desirable goal. As a general principle, similar offenders should receive similar sentences for similar crimes committed in similar circumstances. While this is an ideal, it is far easier to state than it is to apply. The truth is that even similar crimes can be committed in a vast array of circumstances and no two offenders are ever exactly alike. The variations in all of these factors is infinite. Nevertheless it is a worthwhile and important goal and it is incumbent on the sentencing judge to survey the case law with a view to fashioning a sentence that falls within the general range of the punishment others received in similar circumstances.
Availability of Maximum Sentence for s. 91 Offences
[118] The Crown seeks the maximum sentence of two years for each of the four offences of providing advice to clients. Mr. Irving responds that the maximum penalty would be an outrageous sentence in all of the circumstances and would offend the principle of proportionality.
[119] The Supreme Court of Canada established in R. v. Cheddesingh[^52] that the maximum sentence for a crime can be imposed in appropriate circumstances and is not reserved for the “worst crimes in the worst circumstances.” Rather, an individualized approach should be taken, bearing in mind the principles of sentencing and in particular the principle of proportionality. If the maximum sentence is appropriate in all the circumstances, it should be imposed. In a brief decision upholding the trial judge’s imposition of the maximum sentence, the Chief Justice held (at para. 1):
We are all of the view that this appeal should be dismissed. The first issue is whether the trial judge erred by using the concept of “stark horror” in imposing a life sentence. We agree with the appellant’s counsel that terms such as “stark horror”, “worst offence” and “worst offender” add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code, R.S.C. 1985, c. C-46, must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely (see A. Manson, The Law of Sentencing (2001), at p. 106) and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis.
[120] In R. v. L.M.,[^53] the Supreme Court reaffirmed this general principle established in Cheddesingh and reiterated the need for an individualized approach with a focus on proportionality. LeBel J. held as follows (at paras. 18-19):
This individualized sentencing process is part of a system in which Parliament has established a very broad range of sentences that can in some cases extend from a suspended sentence to life imprisonment. The Criminal Code provides for a maximum sentence for each offence. However, it seems that the maximum sentence is not always imposed where it could or should be, as judges are influenced by an idea or viewpoint to the effect that maximum sentences should be reserved for the worst cases involving the worst circumstances and the worst criminals. As can be seen in the case at bar, the influence of this notion is such that it sometimes leads judges to write horror stories that are always worse than the cases before them. As a result, maximum sentences become almost theoretical:
In the end the difficulty with maximums is that they may be seen as almost theoretical rather than as an indication of how seriously an offence is to be treated in the “ordinary” case.
(T. W. Ferris, Sentencing: Practical Approaches (2005), at p. 292)
As Morin J.A. noted in his dissenting reasons, human nature is such that it will always be possible for a court to imagine a worse case than the one before it. Morin J.A. rightly pointed out that it is important for a judge, when deciding whether the maximum sentence can or should be imposed for a given offence, to avoid contemplating fictitious situations in this way. This approach is consistent with this Court’s recent case law.
[emphasis added]
[121] Parliament has decided that the maximum sentence for this offence is two years. In my view, taking into account the seriousness of Ms. Codina’s crimes and her degree of culpability for them, there is no reason why the maximum sentence should not be applied in this case. Ms. Codina is a 60-year-old disbarred lawyer. She has a criminal record for fraud as a lawyer in Ontario and a criminal record in New York State for providing legal advice without a license to practice law in that state, and various other related sentences. She was sentenced to six months imprisonment for her fraud conviction here and served five years for her offences in New York. She would not be eligible to be licensed as an immigration consultant in Canada in light of her criminal antecedents. Undaunted, upon being released from prison in the United States, she set up a corporation in Canada with the intention of providing immigration advice and legal representation to prospective immigrants seeking entry to Canada. Within that corporate structure, she personally provided advice and/or representation to the four complainants who were the subjects of the charges. These were not isolated instances, but rather the manner in which she conducted her business and earned her living, all of which was designed to earn a profit. This was a planned and deliberate scheme. In my view, the principle of proportionality supports the maximum sentence.
Parity: Similar Cases for Providing Advice
[122] There is very little case law on the range of sentencing for offences under s. 91(1) of the IRPA. Indeed, I am aware of only one decision that deals with sentencing under s. 91(1) and that decision provides no guidance as to how the sentencing judge arrived at the sentence he imposed. That case is R. v. Wang,[^54] a decision in the first instance of Harris J. of the Provincial Court of British Columbia, subsequently upheld on appeal by the British Columbia Court of Appeal. The accused was charged with multiple counts arising from his operation of a company providing immigration consulting services, mainly assisting clients to obtain permanent residence status and/or Canadian citizenship. The charges all related to the operation of the business as a whole, rather than focusing on individual offences as was done in the prosecution against Ms. Codina. The charges against Mr. Wang covered a period of eight years. Neither Mr. Wang nor any of his staff were lawyers or licensed immigration consultants. The charges fell into the following categories:
- providing advice without being licensed (Counts 1 and 2 — Count 1 relating to the period prior to June 2011 and Count 2 to the period after amendments to the IRPA creating the offence under s. 91(1));
- misrepresentation, forgery and fraud (Counts 3, 5, 7, and 10 – including creating a false paper trail to misrepresent the length of the client’s residency in Canada, forged passports, misrepresentations as to the clients’ addresses in Canada, and fraudulent records created to misrepresent employment in Canada);
- fraudulent tax credits (Count 13 – in the course of fabricating evidence of employment, T4 forms were issued showing income tax had been paid and 146 clients received tax credits totaling $188,000);
- income tax evasion (Count 15 – Mr. Wang failed to report income of $2.7 million, thereby evading income tax payable of $730,837).
[123] Mr. Wang entered guilty pleas to three offences under the IRPA, two offences under the Criminal Code and two offences under the Income Tax Act.[^55] Sentencing was approached on a global basis, with the Crown seeking a total of seven years and one-half years’ imprisonment, divided between five years on the immigration related charges concurrent and an additional 30 months consecutive for tax evasion. The defence argued that all counts should be concurrent and the total sentence should be 30 months. The sentencing judge imposed a global sentence of seven years, which he divided on the same basis as proposed by the Crown, except that the consecutive sentence for tax evasion was two years. In allocating the five years, the sentencing judge attributed one year to the s. 91(1) offence, but this was done without any discussion or explanation. On appeal, only two issues were raised: whether the sentencing judge applied the totality principle and whether he erred in making the sentence for tax evasion consecutive.
[124] In this context, the allocation of one year for the s. 91(1) count is not useful as a precedent for purposes of comparison to other cases. Accordingly, I am essentially approaching the case before me as a case of first impression.
Range of Sentences for Counselling Misrepresentation
[125] The parties cited numerous cases involving making or counselling misrepresentations in immigration applications. I do not propose to review each and every one of them. Suffice to say, there was no case on all fours with the one before me, or even close to it. Many of the cases involved first-time offenders or guilty pleas – mitigating factors that do not inure to Ms. Codina’s benefit. Cases in which the accused was a potential immigrant who had made a misrepresentation are also distinguishable. Those individuals tend to have other mitigating factors, and are typically also being expelled from the country for their misrepresentation. Canadian citizens within our country who counsel potential immigrants to lie to our immigration authorities are, and should be, dealt with more harshly on sentencing.
[126] It is hard to reconcile many of the cases, save to say that the individual circumstances are so divergent that it is difficult to discern a clear range of sentence.
[127] In R. v. Lazaro,[^56] the offender pleaded guilty to seven counts of counselling misrepresentation contrary to s. 126 of the IRPA. For a five-year period, Ms. Lazaro acted as an immigration consultant, although she was not licensed to do so. Each of the seven complainants sought to enter Canada as caregivers and passed on to Canada Immigration information given to them by Ms. Lazaro attesting to jobs waiting for them in Canada. This information, unbeknownst to the complainants, was fraudulent. Ms. Lazaro received approximately $23,500 in total from the seven complainants and, at the time of sentencing, her lawyer had earmarked $20,000 of funds in his trust account to make voluntary restitution. Ms. Lazaro had no criminal record. The Crown sought a sentence of 21 months. She was sentenced in the Ontario Court of Justice to 12 months in prison, plus three years’ probation. Significant distinguishing features are the guilty plea, voluntary restitution and the absence of a criminal record. On the other hand, there were seven misrepresentations, whereas Ms. Codina was convicted of only one.
[128] The offender in R. v. Al-Awaid[^57] was also an immigration consultant charged with multiple offences including eight convictions for breaching s. 126 of the IRPA by counselling clients to make misrepresentations in their applications for citizenship. The offences were more extensive than those for which Ms. Codina is now being sentenced and covered a longer period of time (9 years). However, a similar factor is that the offences were carried out within a protracted for-profit scheme, as is the case for Ms. Codina. Mr. Al-Awaid was sentenced by Derrick J. of the Nova Scotia Provincial Court to a total of two years less a day for all these offences, the same sentence as is sought here by the Crown for Ms. Codina’s single breach of s. 126. However, there were substantial mitigating factors operating in Mr. Al-Awaid’s case that do not apply to mitigate Ms. Codina’s sentence. Mr. Al-Awaid pleaded guilty at an early stage and was found by the sentencing judge to have been genuinely remorseful. There was substantial evidence of his prior good character and his commitment to his community, as well as the fact that he had suffered greatly as a result of the stigma of these offences and the loss of his esteem in the community. However, the most influential mitigating factor was Mr. Al-Awaid’s serious health issues, which the sentencing judge found could not be adequately addressed in prison with the result that there was a “real risk of [his] experiencing a life-threatening event in prison.”
[129] In El-Akhal,[^58] the offender was an immigration consultant convicted of three counts of counselling clients to make misrepresentations in breach of s. 126 of the IRPA. He was sentenced to three years concurrent on all three counts by Blacklock J. in the Ontario Court of Justice. However, that was on a joint submission and after a guilty plea. Mr. El-Akhal had no criminal record and was of previous good character. While his crime was similar to that of Ms. Codina, it was somewhat more serious. On the other hand, the mitigating circumstances substantially distinguish that case from the one before me.
[130] The mitigating circumstances in R. v. Ren[^59] also distinguishes that case from the one before me. Ms. Ren was charged with 21 counts of counselling misrepresentation contrary to s. 126 of the IRPA. All of the charges involved sham marriages arranged by Ms. Ren for clients who were lawfully in Canada and who sought to obtain permanent residence status based on a marriage to a Canadian national. Ms. Ren pleaded guilty to five counts and admitted the facts of the other 16. The Crown sought a penitentiary term of 2 ½ years, whereas the defence sought a conditional sentence. In sentencing Ms. Ren to a conditional sentence of two years less a day, MacDonnell J. commented that this was a “close case.” However, he reviewed the extensive mitigating factors, including the guilty plea, absence of any criminal record, and genuine remorse expressed by Ms. Ren, as well as her many acts of charity in the community, including hundreds of hours as a volunteer and two donations of $100,000 each to Toronto hospitals. Another substantial influencing factor was Ms. Ren’s medical condition, which included two bouts with brain cancer and a medical opinion that a lengthy period of incarceration would have devastating consequences for her health, could compromise her immune system and result in the growth or regrowth of her brain tumour. Again, these kinds of mitigating circumstances are entirely missing in the case before me.
[131] In R. v. Li,[^60] the offender was an immigration consultant who had obtained confidential citizenship tests illegally and provided them to her clients and also used forged passports and other documents to bring clients into Canada. She was charged with 89 offences, which included 60 counts of forgery, 28 counts of counselling misrepresentations in contravention of s. 126 of the IRPA, and one count of possession of stolen property (the citizenship tests). She entered a guilty plea at an early stage. The Crown sought a global sentence of three years; the defence sought a conditional sentence. Ms. Li had no prior record. The sentencing judge accepted that she was genuinely remorseful as demonstrated not just by the guilty plea but also her own statements to the court. A number of character references from her community were filed. The sentencing judge held that a non-custodial sentence would not meet the requirements of denunciation and deterrence. After a thorough review of precedents, Downes J. of the Ontario Court of Justice imposed a global sentence of 30 months, holding as follows (at para. 65):
In my view, the three year sentence proposed by the Crown is well within the range, speaking globally, for all these offences. Indeed, while the precise range is difficult to nail down in light of the unique circumstances presented in Ms. Li’s case, I am satisfied that it likely encompasses a sentence as high as four years. I simply cannot see that a sentence in the conditional sentence range would be appropriate to meet the applicable sentencing principles.
[132] The range and number of offences committed by Ms. Li are more serious than those of Ms. Codina. However, Ms. Codina does not have the benefit of the guilty plea, remorse, character references, and absence of a criminal record.
[133] In R. v. Mendez,[^61] the offender was an immigration consultant charged with two counts of counselling misrepresentation in refugee applications. She plead guilty to one count and, for the purposes of sentencing, admitted the facts of the other count. Dambrot J. accepted that Ms. Mendez was motivated by her desire to assist immigrants and had often acted without remuneration. Several witnesses testified as to her good character and charitable work in the community. She had no prior record. The defence sought a conditional sentence. The Crown took the position that a conditional sentence was not appropriate, but sought a sentence in the upper reformatory arrange. Taking the mitigating factors into account, Dambrot J. imposed a sentence of nine months. However, he held that this would be a custodial sentence in light of the requirements of denunciation and deterrence. Comparing this case to that of Ms. Codina, I note that the underlying offence is similar. However, Ms. Codina is subject to the increased maximum penalty for the offence, has a highly relevant criminal record, was motivated by greed, and did not have the other mitigating factors that resulted in Ms. Mendez getting a lower sentence than would otherwise be the case.
[134] The offender in R. v. Zaher[^62] was a lawyer. She was charged with three offences, but all arose from her interactions with one person and the steps she took in counselling that person to make misrepresentations in a refugee claim. In fact the person she believed to be a client was an undercover officer. The Crown sought a sentence of three to five years. The defence sought a conditional sentence. Pomerance J. held that the mitigating factors brought this case within the reformatory range, but that a conditional sentence would not properly reflect the principles of denunciation and deterrence. She sentenced Ms. Zaher to 12 months in prison. The crime committed by Ms. Zaher was similar to that of Ms. Codina, although the sentencing judge found that Ms. Zaher’s motivation was not financial gain, which distinguishes her situation from that of Ms. Codina. Ms. Zaher also had the additional aggravating factor that she was a lawyer and therefore in clear breach of trust. On the other hand, she had none of the other aggravating factors that are present for Ms. Codina (including her criminal record, profit fueled motive, and extensive planning and sophistication in setting up a corporate structure designed to thwart the requirements of licensing). Most importantly, however, there were extensive mitigating factors that reduced Ms. Zaher’s sentence. Pomerance J. took into account that Ms. Zaher would lose her license to practice law as a result of this conviction and that prior to this she had been a hard-working lawyer with a noble commitment to help clients in need through her practice. Ms. Zaher had experienced physical trauma as a result of a car accident that left her with a closed head injury, chronic pain, depression, poor sleep, decreased concentration and increased anxiety. She had also been a victim of violent crime many years earlier that continued to impact her life. At the time of the offence, she was suffering from serious mental health issues and although those issues were not causally linked to the commission of the offences, the sentencing judge accepted that “they speak to her fragility and the potential impact of any given penalty.”[^63] Accordingly, she reduced Ms. Zaher’s sentence on compassionate grounds. Ms. Codina does not have any of these circumstances that would operate to reduce her sentence.
H. APPROPRIATE SENTENCE IN THIS CASE
Requirement of a Custodial Sentence
[135] As I have noted above, I am not aware of, and was not referred to any case that is similar to the situation now before me, largely because of the circumstances of Ms. Codina and the absence of mitigating factors that served to substantially reduce the sentences for offenders in other cases cited to me. What is clear, however, is that deterrence and denunciation are of paramount consideration in these cases generally, and in particular, with respect to Ms. Codina. In my view, given the circumstances of the offences and the circumstances of Ms. Codina, a conditional sentence is wholly inappropriate.
[136] The circumstances of Ms. Codina’s mother are troubling, but do not warrant imposing an inadequate sentence. Further, there is no clear evidence that Ms. Codina’s mother cannot be adequately cared for through other community resources.
Counselling Misrepresentation: Count Five
[137] The sentence for this offence is primarily driven by the principles of general deterrence, specific deterrence, and denunciation. There are many aggravating factors. The following are the ones I find most troubling.
i. Ms. Codina has a criminal record for offences of dishonesty in her dealings as a lawyer in Ontario and as an unlicensed consultant in the United States.
ii. Both Ms. Codina’s previous crimes and those now before me involved breach of trust.
iii. This offence was committed along with the offence under s. 91 of providing advice to Mr. Abdolvahabi without being licensed and was part of an organized for-profit endeavour.
iv. Mr. Abdolvahabi did not solicit Ms. Codina’s assistance in deceiving Canadian immigration authorities. All of the misrepresentations she counselled were entirely her own idea and she was most insistent that Mr. Abdolvahabi take her advice, notwithstanding his protestations against doing so.
v. The counselling occurred over several meetings and an extended period of time and included many different forms of misrepresentations.
vi. The consequences of these offences for Mr. Abdolvahabi and his family have been devastating.
[138] Taking into account all of the factors I have referred to herein, in my view the appropriate sentence for this offence is four years. Such a sentence properly reflects the seriousness of the offence and Ms. Codina’s degree of blameworthiness. In my view, anything less than this would not serve as a deterrent to Ms. Codina in the future, nor would it meet the goals of general deterrence and denunciation in all of the circumstances of this case. A four-year sentence is also in keeping with the parity principle, particularly in view of the mitigating factors that were present for offenders who received a similar or slightly shorter sentence than this. For reasons set out below, I have concluded that the sentence for providing this advice without being licensed to do so should be concurrent with the sentence for counselling misrepresentation. I have therefore treated the fact that the counselling occurred within the context of overall legal advice being given without a license as an aggravating factor on the overall sentence for Count 5. In other words, the appropriate sentence for both offences related to Mr. Abdolvahabi combined is four years. The Crown had submitted that there should be a sentence of three years on the misrepresentation count and two years on the charge of providing advice to Mr. Abdolvahabi, but that they should be consecutive, for a total of five years. Although this is more than was sought by the Crown on the misrepresentation count, it is less than the overall sentence sought by the Crown. In all of these circumstances, I consider four years to be a fit and just sentence for these offences by this offender.
Advice and Representation
[139] The maximum sentence for the s. 91 offences is two years’ imprisonment, or a fine of up to $100,000, or both. The Crown seeks a sentence of two years on each of the four s. 91 counts, to be served consecutively to each other and to the misrepresentation count, in addition to fines and restitution orders.
[140] In seeking the maximum jail term, the Crown relies upon the principle that the maximum sentence should be imposed where it is fit, and that the maximum is not reserved for the worst case scenario one could imagine as fitting within the definition of the crime. In R. v. L.M.,[^64] the Supreme Court of Canada, reiterating principles already established in Cheddesingh, held as follows (at paras. 20-21):
In R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16, the Court acknowledged the exceptional nature of the maximum sentence, but firmly rejected the argument that it must be reserved for the worst crimes committed in the worst circumstances. Instead, all the relevant factors provided for in the Criminal Code must be considered on a case‑by‑case basis, and if the circumstances warrant imposing the maximum sentence, the judge must impose it and must, in so doing, avoid drawing comparisons with hypothetical cases:
. . . terms such as “stark horror”, “worst offence” and “worst offender” add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code . . . must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely . . . and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case‑by‑case basis. [para. 1]
Even where a maximum sentence is imposed, therefore, regard must be had to the trial judge’s discretion, the individualized nature of sentencing and the normative principles set out by Parliament in ss. 718, 718.1 and 718.2 Cr. C. There is still a place in criminal law for maximum sentences in appropriate circumstances.
[141] As I noted above, there is a dearth of case law as to sentencing under this provision and I am therefore approaching this case as one of first impression.
[142] The conduct of Ms. Codina in this case is the very evil that s. 91(1) of the IRPA was designed to prevent. This was an organized and sophisticated endeavour operated for profit without regard to the requirements of the law. There were four separate offences involving four sets of clients, all of whom suffered harm. That places this offence at the upper levels of seriousness for crimes under this section. Ms. Codina’s level of blameworthiness is also at the upper end of the scale. She masterminded the whole scheme. She advertised Codina International as having 30 years’ experience, a clear reference to herself, as amply demonstrated on the audiotape of her meeting with Mr. Mouzos in which she said, “And trust me, I have over 30 years’ experience, okay in this. I know everything okay, okay.”[^65] It was her sales pitch that reeled in these clients. The forcefulness of that salesmanship and the degree of persuasion she applied are also amply demonstrated on the audio tapes relating to both Mr. Mouzos and Mr. Abdolvahabi. The proportionality principle therefore warrants a sentence at, or close to, the maximum for this offence.
[143] There are no mitigating factors that would support reducing the sentence Ms. Codina should receive.
[144] There are many aggravating factors, foremost among them her prior criminal record for similarly deceitful conduct, also involving breaches of trust. I have listed those aggravating factors above and will not repeat them here.
[145] In my view, a two-year term of imprisonment is an appropriate sentence for each of these offences in all of the circumstances of this case.
Consecutive or Concurrent
[146] As a general principle, sentences should be consecutive unless there is a reason for them to run concurrently.[^66] Likewise, separate offences involving separate victims will normally attract consecutive sentences.[^67] The Criminal Code specifies that a court that sentences an accused shall consider directing that the term of imprisonment it imposes be served consecutively including when “the offences do not arise out of the same event or series of events.”[^68]
[147] I note, however, that the Criminal Code also specifies that a court imposing consecutive sentences, shall take into consideration that “the combined sentence should not be unduly long or harsh.”[^69]
[148] The sentencing judge has considerable flexibility in determining whether sentences should be served consecutively or concurrently. Often, the judge will arrive at what should be the appropriate global sentence and then divide that amount amongst multiple charges without any extensive analysis of which why they are being run consecutively or concurrently. As noted by Lamer J (as he then was) writing for the Supreme Court of Canada in Paul v. The Queen[^70] (at pp. 633-634):
Indeed, if a judge, when imposing sentences of imprisonment for many offences, is of the view that a person should in the interest of society be incarcerated for a given period of time, he will within the limits permitted by the law arrange the sentences to achieve what he considers that just and fair result. This he will do through consecutive sentencing if permitted by the law. If consecutive sentencing is not available, for what he justifiably might consider shortcomings of the law for technical reasons, he will achieve the imposition of that no less just and desirable period of incarceration through other means, all equally legal. Considering the high level at which sentences are set out in the Code all he then need do is to impose for the latter conviction a sentence, the length of which will correspond to the time he thinks the accused should serve for his offences. Not being able to fulfil what he rightly considers to be his duty through the imposition of consecutive sentences for reasons he considers purely technical (and justifiably so in my view) he will do so in that way. At the same time, however, the judge will be imposing for the latter offence, in order to achieve the desirable and just aggregate result, a sentence the severity of which is, even in his own view, much more than that required for that offence when considering that offence in isolation. This is undesirable as each offence should at the outset be punished individually and in proportion to its seriousness. If each offence is deserving of its own period of imprisonment, the proper method for achieving this when sentencing the accused is not by sentencing one of the offences out of proportion to its gravity but through the imposition of consecutive sentences.
[149] In Sentencing, Ninth Edition, the authors note that a great deal of judicial time has been utilized in assessing the rules surrounding the imposition of consecutive or concurrent sentences in particular circumstances. Nonetheless, the authors note that:
Ultimately, the tests are very flexible, and it becomes a fact specific inquiry whether the connection between two offences is sufficiently or insufficiently close to merit either consecutive or concurrent sentences.[^71]
[150] R v. Wang, as noted above, is one of few cases dealing with sentencing under s. 91(1) of the IRPA. Although, as mentioned, it provides little guidance as to how the sentencing judge arrived at the sentence he imposed, Harris J. does embark on analysis of whether, on the facts before him, the sentences imposed should be consecutive or concurrent, stating at paras 72 – 73 as follows:
In R. v. Li, 2009 BCCA 85, the court set out the test for determining whether sentences should be consecutive or concurrent. At paragraph 42, the court stated:
The test for the imposition of a consecutive or concurrent sentence is "whether the acts constituting the offence were part of a linked series of acts within a single endeavour": R. v. G.P.W. (1998), 106 B.C.A.C. 239 at para. 35.
In the circumstances of the instant case, I find, with the exception of Count 15, all of Mr. Wang's offences were linked in that they were committed with a main purpose of misleading Citizenship and Immigration Canada by creating the false impression that Mr. Wang's clients were residing in Canada.
[151] Subsequent to the decision in R. v. Li (cited by Harris J.), The British Columbia Court of Appeal held in R. v. Berry[^72] that even when offences are proximate and relate to the same legally protected interest, consecutive sentences are appropriate where the offences are committed against multiple victims.
[152] The charges against Mr. Wang were structured quite differently from the charges in the case before me. Each charge was stated in a general or global manner with evidence called to particularize those general allegations. The sentencing judge then approached sentencing in a similar global manner. The charges against Ms. Codina, however, are particularized within each count, with each count relating to advice given by Ms. Codina to a specific client or client group. I am not bound to follow the approach taken by the sentencing judge in Wang and I decline to do so. I find that the facts of the case before me, as they relate to the s. 91(1) offences, require the imposition of consecutive sentences.
[153] Counts 4 and 5 relate to the same victims. Under Count 4, Ms. Codina was convicted of providing legal advice to Mr. Abdolvahabi without being licensed to do so. Under Count 5, she was convicted of counselling Mr. Abdolvahabi to make a material misrepresentation in an immigration application. These offences took place at the same time. They involved the same retainer contract and the same meetings. They are separate offences because of the substance of the crimes is different. However, they are integrally related. The more serious of the two offences is the counselling misrepresentation charge in Count 5 and it deserves the longer sentence. Rather than make the sentence for Count 4 consecutive, in my view it is appropriately treated as an aggravating factor on the sentence for Count 5, but the sentence should then be served concurrent to Count 5.
[154] I see no basis for making Counts 1, 2 and 3 concurrent to Count 5. They are completely unrelated, other than that they were committed by the same person using a similar modus operandi. Each retainer agreement was separately entered into and each client was given individualized advice tailored to their particular circumstances. In my view, each offence is separate and distinct from each other, and also separate and distinct from the counselling misrepresentation charge in Count 5. Accordingly, the sentences for Counts 1, 2 and 3 are to be served consecutively.
Totality
[155] Having determined the appropriate sentence for each offence, the next step is to add up the offences and consider whether the totality of the sentence is overly harsh or crushing in all of the circumstances. The total of all the sentences would be as follows:
Count 5 --- 4 years
Count 4 --- 2 years concurrent (with Count 5)
Count 3 --- 2 years consecutive
Count 2 --- 2 years consecutive
Count 1 --- 2 years consecutive
Total: 10 years
[156] In my view, a ten-year sentence is out of line with other sentences for offences under IRPA and would also be crushing for this individual offender. Ms. Codina is already 60 years old. She has limited productive working years ahead of her. Her mother is 90 years old and she will therefore have limited opportunity to spend any further time with her. In my view, a further period of ten years in jail would simply be too devastating for Ms. Codina. Accordingly, I will reduce the ten-year sentence to one of seven years. That is conveniently accomplished by changing each of the two-year sentences for Counts 1, 2 and 3 to one year each. Thus, the term of imprisonment is as follows:
Count 5 --- 4 years
Count 4 --- 2 years concurrent (with Count 5)
Count 3 --- 1 year consecutive
Count 2 --- 1 year consecutive
Count 1 --- 1 year consecutive
Total: 7 years
Restitution and Fines
[157] The Crown seeks a fine of $20,000 for each of the five counts, for a total of $100,000, as well as restitution orders.
[158] I have no hesitation in making the restitution orders. The complainants have been unjustly deprived of the funds they advanced to Ms. Codina, for which they received nothing. Ms. Codina should not be permitted to profit from these crimes. Restitution shall be paid as follows:
$5,250.00 to Jalil Chitizadeh;
$6,450.00 to Mahjub Ahmadi, in trust for his family members who advanced the funds;
$9,000.00 to Nikolaos Mouzos; and
$9,500.00 to Farhad Abdolvahabi, in trust for his family members who advanced the funds.
[159] Ms. Codina called no evidence to indicate that she is financially impoverished or that a fine in addition to the jail terms would be beyond her means. In a crime of this nature, a fine is an appropriate penalty in addition to a jail term in order to ensure that the offender has not profited from her criminal behaviour. With respect to the four offences under s. 91(1), the restitution orders accomplish that purpose. Since the counselling misrepresentation offence did not result in a misrepresentation being made, Ms. Codina did not profit from that offence other than by virtue of the fees, which would already be repayable through the restitution order. I believe the jail term will serve as the most effective deterrent for Ms. Codina. It is sufficient punishment without the need of additional financial penalties. Accordingly, I am not imposing any fines, not because of Ms. Codina’s professed impecuniosity, but because I find the goals of sentencing are already met by the jail terms and restitution orders.
I. CREDIT FOR PRE-TRIAL CUSTODY
Length of Pre-Trial Custody
[160] Ms. Codina has served 542 days in pre-trial custody. Of this time, the initial 13 days run from the date of her arrest in May 2014 to the date when she was released on bail. The remaining 529 days run from the date when Ms. Codina was arrested in September 2015 and charged with two counts of breaching the conditions of her bail and ultimately with a further count of providing legal advice without being licensed to do so. That period of pre-trial custody ended upon bail being granted by Dunnet J. on February 28, 2017.[^73]
Written Submissions
[161] Initially, I had intended to impose sentence on April 25, 2018 and a schedule for written submissions was imposed that would have permitted my receiving and reviewing those submissions in time to incorporate them into my decision. However, counsel for Ms. Codina ran into some difficulties in obtaining the Vanier records and those times were varied on April 10, 2018, with defence submissions to be delivered by April 23, 2018 and the Crown’s response by May 17, 2018. The ultimate date for sentencing was fixed for May 29, 2018.
[162] Mr. Irving delivered his submissions on April 23, 2018, dealing solely with the issue of credit for pre-trial custody, as I had directed.
[163] The Crown delivered its written submissions dated May 16, 2018 providing a response to the defence submissions on pre-trial custody, and also further submissions on the issue of consecutive and concurrent sentences. I did not contemplate the parties delivering further written argument on the issue of concurrent and consecutive sentences, a point that had already been addressed at the initial hearing back in February. I consider it unfair to the defence for the crown to seek to buttress its prior submissions in this manner. However, by the time I received these submissions from the Crown, I had already decided the issue of concurrent versus consecutive sentences. There is nothing in the Crown’s submissions that causes me to change my position and I will simply disregard them.
Position of the Parties
[164] The defence filed records from Vanier indicating that during Ms. Codina’s time in pre-trial custody, the unit on which she was housed was on partial lockdown for 71 days and on full lockdown for 17 days. The defence submits that, as a starting point, Ms. Codina is entitled in the ordinary course to a credit of 1.5 days for every day served. In addition, the defence position is that she should receive a credit of 2 days for every day served during lockdown. This would result in a credit of 176 days (for the 88 days on lockdown @2:1) and 681 days (for the other 454 days @ 1.5:1)., for a total credit of 857 days (being approximately 2 and 1/3 years).
[165] The Crown submits that Ms. Codina should only be credited on a straight time basis, for a credit of 542 days (approximately 1 and 1/2 years). With respect to the issue of the 1.5 to 1 credit, the Crown argues that this additional credit should not be allowed for two reasons: (1) that Ms. Codina was detained on the secondary grounds after her breach of recognizance in September 2015 and it was therefore her own conduct that caused her to be detained; and (2) that she prolonged her own detention by repeatedly delaying the proceedings. The Crown objects to any enhanced credit for the period of lockdowns because there is no evidence as to these periods of time having had any real impact on Ms. Codina personally.
Analysis
[166] There is no automatic entitlement to a credit of 1.5 to 1 for time served. The onus is on the offender to demonstrate that she should be awarded enhanced credit.[^74]
[167] That said, a credit of 1.5 to 1 has become the de facto norm in the absence of reasons to negate it. In Summers, the Supreme Court of Canada held (at paras. 70-71):
In determining credit for pre-sentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant. While there is now a statutory maximum, the analytical approach endorsed in Wust otherwise remains unchanged. Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres.
The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. Of course, a lower rate may be appropriate when detention was a result of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole.
[emphasis added]
[168] As noted in Summers, one of the circumstances in which the enhanced credit may be denied is where the offender is unlikely to obtain parole. The Crown argues that Ms. Codina is unlikely to obtain an early release because of her poor prospects for rehabilitation. As I have already noted above, I am not optimistic about Ms. Codina changing her ways. However, I have already taken that into account in the sentence that I have imposed. I do not consider it appropriate to penalize her twice for that factor.
[169] Another situation in which an offender may be denied an enhanced credit for time served is where the offender’s own bad conduct either resulted in her detention, or prolonged that period of detention.[^75]
[170] Ms. Codina was initially held in custody for 13 days before she was released on bail. She is clearly entitled to a credit of 1.5:1 for that time. However, the remaining time spent in custody flowed from her subsequent arrest when she was found at the offices of Codina International in the absence of a surety while she was under house arrest. Further, the officers who arrested her at that time interviewed a client who had been meeting with Ms. Codina there and determined that Ms. Codina had been providing legal advice to this client while on bail. Ms. Codina was charged with two counts of breaching her recognizance and also charged with an additional offence under s. 91(1) of the IRPA for providing legal advice to Kulwant Singh Dhaliwal. From the various orders denying Ms. Codina bail and dismissing her applications for bail variations, it is clear that she was detained on the secondary grounds; that she was likely to reoffend. The reason she was in custody all of that time was because she could not be trusted to abide by the provisions of her recognizance.
[171] The difficulty I face with this, however, is that there has been no trial on any of these points. The Crown stayed the charges with respect to the breach of recognizance. The charge relating to providing legal advice to Mr. Dhaliwal proceeded to a preliminary hearing and was part of the preferred indictment in this court. Having reviewed the testimony of Mr. Dhaliwal at the preliminary hearing, it is very clear that she would have been committed to trial on that charge. However, by the time of the trial, Mr. Dhaliwal was living in England and refused to return to Toronto for trial, or to testify there by video-link. I dismissed the Crown’s application to introduce the transcript from the preliminary as Mr. Dhaliwal’s testimony at trial,[^76] as a result of which the Crown stayed that charge.
[172] As I have indicated above, one of the excuses offered by Ms. Codina for not being in her home was that she was complying with a court order. I have rejected that. However, she would still be entitled to be outside her residence if she was actually meeting with her lawyer. There has been no judicial determination on that issue. While I am satisfied that the Crown has established a strong prima facie case that Ms. Codina was providing legal advice to Mr. Dhaliwal contrary to the IRPA while on bail, I am reluctant to impose a further period of incarceration on her as a result of that, given my findings that she did not have a full opportunity to cross-examine Mr. Dhaliwal at the preliminary hearing. Accordingly, I would not reduce the credit Ms. Codina would otherwise receive based on the grounds that it was her own bad conduct that caused her bail to be revoked.
[173] I do agree with the Crown’s submission that Ms. Codina substantially delayed the proceedings by bringing numerous applications that were entirely without merit and repeatedly trying to litigate matters that had already been decided. Justice Akhtar rejected her s. 11(b) motion based, in part, on the delay having been caused by Ms. Codina, including delay during the period she was incarcerated.[^77] However, it is difficult to quantify precisely how much of the delay while in custody can be attributed to such conduct.
[174] With respect to the lockdowns and partial lockdowns, the only evidence before me is the dates and times upon which they occurred. There is no evidence whatsoever as to the impact this had on Ms. Codina personally. For some of those days, visits were cancelled. I do not know if Ms. Codina ever had visitors, or if any visits to her were cancelled because of lockdowns. Also, the lockdowns resulted in the cancellation of some programming within the institution. Again, I do not know if this affected Ms. Codina at all. I do not know, for example, if she ever took advantage of any such programs or if she was prevented from attending because of lockdowns. For at least some of this period of time, Ms. Codina was before the courts on her preliminary hearing and her many applications and appeals. Accordingly, I find that she has failed to establish any entitlement to enhanced credit as a result of lockdowns.
[175] If all of the pre-trial custody was credited at 1.5:1, Ms. Codina would receive a credit of 813 days. In all of the circumstances, I agree with the Crown’s submission that Ms. Codina should not be entitled to the full 1.5:1 credit. I would reduce the credit for time served to two years.
J. CONCLUSION
[176] For the reasons stated above, I sentence Ms. Codina to the following:
Count 5 --- 4 years (less 2 years for time served)
Count 4 --- 2 years concurrent (with Count 5)
Count 3 --- 1 year consecutive
Count 2 --- 1 year consecutive
Count 1 --- 1 year consecutive
Total: 5 years (in addition to time served credited at 2 years)
[177] In addition, I impose the following restitution orders:
$5,250.00 to Jalil Chitizadeh;
$6,450.00 to Mahjub Ahmadi, in trust for his family members who advanced the funds;
$9,000.00 to Nikolaos Mouzos; and
$9,500.00 to Farhad Abdolvahabi, in trust for his family members who advanced the funds.
________________________
MOLLOY J.
Released: May 29, 2018
COURT FILE NO.: 16-9-761
DATE: 20180529
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ANGELINA MARIE CODINA
Defendant
REASONS FOR DECISION #8
Sentencing
MOLLOY J.
Released: May 29, 2018
[^1]: Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[^2]: My written reasons on the pre-trial applications and abuse of process motions may be found as follows: R. v. Codina # 1 (Jurisdictional and Constitutional Challenges to ss. 91, 126 and 138(1) of the IRPA), 2017 ONSC 7162, [2017] O.J. No. 6765; R. v. Codina #2 (Validity of Preferred Indictment and Constitutionality of s. 577 of the Criminal Code), 2017 ONSC 7236, [2017] O.J. No. 6766; R. v. Codina #3 (Charter Challenges: arrest, search and seizure, disclosure), 2017 ONSC 7561, [2017] O.J. No. 6767; R. v. Codina #4 (Constitutional Challenge to ss. 145(3), 523, 524 and Part 18 of the Criminal Code), 2017 ONSC 7315, [2017] O.J. No. 6768; R. v. Codina #5 (Crown Applications to Admit Recordings and Transcripts), 2017 ONSC 7323, [2017] O.J. No. 6764; R. v. Codina #6 (Interpretation of ss. 91(1) and 126 of IRPA and Motion for a Directed Verdict), 2017 ONSC 7648, [2017] O.J. No. 6814; R. v. Codina #7, (Adjournment Request; Leave to Bring s. 11(b) Application; Abuse of Process) 2018 ONSC 1096, [2018] O.J. No. 964.
[^3]: Exhibit 1, Pre-Sentence Report, at p. 5.
[^4]: Ibid, at pp. 5 and 6.
[^5]: Criminal Code, R.S.C., 1985, c. C-46
[^6]: Criminal Code, s. 718.
[^7]: Criminal Code, ss. 718(a),(b),(c),(d),(e), and (f).
[^8]: Criminal Code, s. 718.1.
[^9]: Criminal Code, s. 718.2(d).
[^10]: Criminal Code, s. 718.2(e).
[^11]: Criminal Code, s. 718.2(a)(iii),(iii.1),and (vi).
[^12]: Criminal Code, s. 718.2(c).
[^13]: Criminal Code, s. 718.2(b).
[^14]: See R. v. Codina #6 (Interpretation of ss. 91(1) and 126 of IRPA and Motion for a Directed Verdict), 2017 ONSC 7648, [2017] O.J. No. 6814.
[^15]: Ibid. at paras. 25-34 and 70-74.
[^16]: R. v. Codina #6 (Interpretation of ss. 91(1) and 126 of the IRPA and Motion for a Directed Verdict), 2017 ONSC 7648 at paras. 111-115, [2017] O.J. No. 6814.
[^17]: R. v. Codina #6, supra, at paras. 118-122.
[^18]: Transcripts of meetings, Exhibit 50A at trial, May 12, 2012 meeting, Tab 1, at pages 4, line 19-22 and 5, line 1.
[^19]: Ibid, May 12, 2012 meeting, Tab 1, at page 6, line 6.
[^20]: Ibid, August 8, 2012 meeting, Tab 2, page 10, line 15.
[^21]: Ibid, July 23, 2013 meeting, Tab 3, page 7, line 18.
[^22]: Ibid, August 12, 2012 meeting, Tab 2, page 21, line 1.
[^23]: Ibid, November 8, 2013 meeting, Tab 4, page 20, line 22.
[^24]: Ibid, November 8, 2013 meeting, Tab 4, page 23, line 20.
[^25]: Transcripts of meetings, Exhibit 50B at trial, January 25, 2014 meeting, Tab 9, page 36, lines 11-18.
[^26]: Ibid, January 9, 2014 meeting, Tab 7, page 43, line 21.
[^27]: Ibid, January 9, 2014 meeting, Tab 7, page 58, lines 18-24.
[^28]: Ibid, January 9, 2014 meeting, Tab 7, page 85, line 20.
[^29]: Ibid, January 25, 2014 meeting, Tab 9, page 65, lines 16-19.
[^30]: Ibid, January 25, 2014 meeting, Tab 9, page 53, lines 18-27.
[^31]: Supra note 18, August 8, 2012 meeting, Tab 2, at page 24, line 8.
[^32]: Ibid, July 23, 2013 meeting, Tab 3, at page 11, line 24.
[^33]: Ibid, July 23, 2013 meeting, Tab 3, at page 10, line 16.
[^34]: Ibid, July 23, 2013 meeting, Tab 3, at page 10, line 27.
[^35]: Ibid, July 23, 2013 meeting, Tab 3, at pages 15-16.
[^36]: Supra note 25, January 9, 2014 meeting, Tab 7, at page 65, lines 4-9.
[^37]: Ibid, November 8, 2013 meeting, Tab 4, at page 35, lines 4-11.
[^38]: R. v. Codina, [2000] O.J. No. 4801 (Ont. C.A.).
[^39]: Ibid at para. 4.
[^40]: Ibid at para. 5.
[^41]: Re Codina, 2002 CanLII 41329 (Law Society Tribunal).
[^42]: People v. Codina, 110 A.D. 3d 401, 972 N.Y.S. 2d 247 (1st Dept. 2013).
[^43]: R. v. Li, 2001 BCSC 458, [2001] B.C.J. No. 748 [Li].
[^44]: See, for example: R. v. Wang, 2015 BCPC 302, aff’d 2016 BCCA 390; R. v. Zaher, 2017 ONSC 582, [2017] O.J. No. 396 [Zaher]; R. v. Mendez, [2004] O.J. No. 5733 (Ont S.C.) [Mendez].
[^45]: R. v. Dhalla, [2007] O.J. No. 1362 (Ont. S.C.) [Dhalla].
[^46]: R. v. Li, [2015] O.J. No. 5083.
[^47]: R. v. Mendez, supra, Note 44. [2004] O.J. No. 5733 (Ont S.C.).
[^48]: R. v. Zaher, supra, Note 44.
[^49]: R. v. Ellis, 2013 ONCA 739, [2013] O.J. No. 5583 [Ellis].
[^50]: Criminal Code, ss. 718(d)(e)(f).
[^51]: R. v. Codina #5 (Crown Applications to Admit Recordings and Transcripts), 2017 ONSC 7327, [2017] O.J. No. 6764.
[^52]: R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433 [Cheddesingh].
[^53]: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163.
[^54]: R. v. Wang, 2015 BCPC 302, [2015] B.C.J. No. 2381; aff’d 2016 BCCA 390, [2016] B.C.J. No. 2036.
[^55]: Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.).
[^56]: R. v. Lazaro, 2016 ONCJ 676, [2016] O.J. No. 6036.
[^57]: R. v. Al-Awaid, 2015 NSPC 52, [2015] N.S.J. 52.
[^58]: R. v. El-Akhal, 2011 ONCJ 826, [2011] O.J. No. 6247.
[^59]: R. v. Ren, 2015 ONSC 3397, [2015] O.J. No. 2722.
[^60]: R. v. Li, supra note 48.
[^61]: R. v. Mendez, supra note 49.
[^62]: R. v. Zaher, supra note 51.
[^63]: Ibid at para. 48.
[^64]: R. v. L.M., supra note 58.
[^65]: Supra, Note 16.
[^66]: R. v. McCarthy, 2005 NLCA 36 at para. 11, [2005] N.J. No. 195.
[^67]: See R. v. A.T.S., 2004 NLCA 1, [2004] N.J. No. 1.
[^68]: Criminal Code, s. 718.3(4)(b)(i).
[^69]: Criminal Code, s. 718.2(c).
[^70]: R. v. Paul, 1982 CanLII 179 (SCC), [1982] 1 S.C.R. 621.
[^71]: Clayton Ruby et al, Sentencing, 9th ed (Toronto: LexisNexis, 2017) at para. 14.15.
[^72]: R. v. Berry, 2014 BCCA 7 at para. 53, [2014] B.C.J. No. 18.
[^73]: R. v. Codina, 2017 ONSC 1384, [2017] O.J. No. 1000.
[^74]: R. v. Summers, 2014 SCC 26 at para. 79, [2014] S.C.R. 575 [Summers].
[^75]: Ibid, at para. 71.
[^76]: R. v. Codina #5 (Crown Applications to Admit Recordings and Transcripts), 2017 ONSC 7323 at paras. 34-64, [2017] O.J. No. 6764.
[^77]: R. v. Codina, 2017 ONSC 4886; See also R. v. Codina #7 (Adjournment Request; Leave to Bring s. 11(b) Application; Abuse of Process), 2018 ONSC 1096 at paras. 11-17, [2018] O.J. No. 964.