COURT FILE NO.: CR-21-101361
DATE: 2021-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angelina Codina, Applicant
– and –
Grand Valley Institution for Women, Respondent
Angelina Codina, self-represented Applicant on Application
James Stuckey and Shain Widdifield, Counsel for Respondent
HEARD: September 16, 2021
DECISION ON APPLICATION FOR WRIT OF HABEAS CORPUS
M.R. GIBSON J.:
[1] Angelina Codina ("the Applicant") is currently incarcerated at the Grand Valley Institution for Women ("GVI") in Kitchener, Ontario, pursuant to a warrant of committal issued May 29, 2018 by Molloy J., following the Applicant's conviction and sentence. The Applicant's appeal of conviction was dismissed by the Court of Appeal for Ontario in R. v. Codina, 2020 ONCA 848, and her appeal of sentence in R. v. Codina, 2019 ONCA 986.
[2] Ms. Codina has now made application for a writ of habeas corpus, challenging the validity of the warrant of committal.
[3] By letter of its counsel Mr. Stuckey, dated July 30, 2021, the Respondent GVI requested that this application by Ms. Codina be dismissed as frivolous, vexatious or an abuse of the court's process.
[4] When the matter came before me on the Trial Scheduling Court held by Zoom on August 24, 2021, I directed that there should be a hearing on the preliminary issue of whether the matter should be dismissed as frivolous, vexatious or an abuse of process, with an opportunity to make oral submissions. I specified timelines for written submissions by the parties.
[5] I have read the written submissions of the Respondent GVI dated September 3, 2021, and those of the Applicant Ms. Codina dated September 10, 2021. The parties were afforded the opportunity to make oral submissions on September 16, 2021.
[6] The Respondent seeks an Order dismissing Ms. Codina's application for a writ of habeas corpus as being frivolous, vexatious or an abuse of the Court's process. It submits that the issues raised in the application have already been determined by this Court and/or the Court of Appeal, with the exception of the assertion that the warrant of committal needs to refer to the penalty provision of the Immigration and Refugee Protection Act pursuant to which Ms. Codina was convicted and is now incarcerated. It submits that there is no such requirement.
[7] The Applicant contends that the warrant of committal issued by Molloy J. of the Superior Court of Justice of Ontario is not enforceable because there is no court order in the record issued by a judge of the Court authorizing this prosecution in accordance with s. 577(b) of the Criminal Code.
[8] There are two stages in determining whether a habeas corpus application should be granted. First, the court must determine whether reasonable and probable grounds exist for the complaint. Second, if the court is satisfied that the grounds exist, then the application is heard on its merits: R. v. Olson, 1989 120 (SCC), [1989] 1 S.C.R. 296, at p. 298; R. v. Codina, 2021 ONCA 317 at para. 2.
[9] In considering this matter, I have had particular regard to the following previous decisions relating to the Applicant: the decision of Molloy J. in R. v. Codina # 2, 2017 ONSC 7236; R. v. Codina, 2017 ONCA 93; the decision of Akhtar J. in the Applicant's previous habeas corpus application in R. v. Codina, 2021 ONSC 765; the decision of the Court of Appeal for Ontario dismissing her appeal from that decision in R. v. Codina, 2021 ONCA 317; and, R. v. Codina, 2021 ONCA 109.
[10] Upon reading the written submissions of the Applicant and Respondent, and hearing oral submissions, I am satisfied that the Applicant Ms. Codina has not satisfied the first limb of the test. Her application is frivolous, vexatious and an abuse of the Court's process. I will explain briefly how I come to this conclusion.
[11] The Respondent contends that both civil (that is, Rule 2.1.01 of the Rules of Civil Procedure) and criminal (that is, Rule 6.11 of the Criminal Proceedings Rules of the Superior Court of Justice of Ontario) rules may have application here.
[12] Rule 2.1.01 of the Rules of Civil Procedure provide:
The Court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of process of the Court.
[13] Rule 6.11(2) of the Criminal Proceedings Rules provides:
Upon application by the respondent that a notice of application does not show a substantial ground for the order sought, a judge of the court may, if he or she considers that the matter is frivolous or vexatious and can be determined without a full hearing, dismiss the application summarily and cause the applicant to be advised accordingly.
[14] I accept the submission of the Respondent that while habeas corpus matters are typically conducted procedurally under the Criminal Proceedings Rules, certain types of habeas corpus matters may be civil in nature. In this regard, I have considered the following cases: Severin v. Bath Institution, 2018 ONSC 6096; Thompson v. Canada (Attorney-General), 2018 ONSC 6484; Sivasubramaniam v. Canada, 2020 ONSC 6004; and Forster v. Canada (Correctional Service), 2019 ONCA 91.
[15] However, I am satisfied that in the present case, the application challenging the validity of the warrant of committal is criminal in nature, as it arises directly from the imposition of a penal sanction under the Criminal Code. It is thus the Criminal Proceedings Rules that should apply.
[16] The Applicant contends that the applicable procedural rule is Rule 43, to the exclusion of Rule 6.11. I do not accept this argument. Rule 6.11 may be applicable to all applications for extraordinary relief: Severin v. Bath Institution, 2018 ONSC 6096 at para. 5.
[17] I am buttressed in this conclusion by the observations of Trotter J.A. at para. 16 in Forster v. Canada (Correctional Service), 2019 ONCA 91, that, in the context of the habeas corpus matter at issue in that case, that the criminal rule most applicable to the proceedings was Rule 6.11(2).
[18] In any event, it is patent that the Court has inherent jurisdiction independent of either the civil or criminal rules to control its own processes and ensure those processes are not abused: Jayaraj v. H.M.Q., 2014 ONSC 6367.
[19] The claim of the Applicant is sufficiently lacking in legal basis or merit that it is frivolous. It is also an abuse of the Court's process, as litigation that would "violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice": per Arbour J. in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63 at para. 37.
[20] Ms. Codina has unsuccessfully tried the arguments in her present application multiple times before this Court and the Court of Appeal. The basis for her arguments is identical or essentially the same. In this application, she has sought to recast them in a slightly different guise. She submits that the distinctive feature of the present application is the jurisdictional challenge to the enforceability of the warrant of committal and the scope of application of s. 577 of the Criminal Code in that regard. I do not agree. I agree with the observation of Molloy J. in the December 2017 pre-trial application decision that Ms. Codina is simply trying to re-litigate an issue already decided against her, and that the Court of Appeal's ruling was a final determination on the validity of the preferred indictment, based on the nature of the endorsement of the Attorney-General's consent.
[21] I agree with the submission of the Respondent that in the present habeas corpus application, Ms. Codina offers only the veneer of new argument. The underlying faults or defects she alleges in respect of the warrant of committal are simply the same matters that have been determined and dismissed during the trial and related proceedings.
[22] Ms. Codina's assertion that the warrant of committal is defective for making no reference to s.128 of the IRPA is lacking in any legal basis or merit. There is no requirement for the warrant of committal to make the specific reference that the Applicant complains of.
[23] Section 782 of the Criminal Code provides:
- No warrant of committal shall, on certiorari or habeas corpus, be held to be void by reason only of any defect therein, where
(a) it is alleged in the warrant that the defendant was convicted; and
(b) there is a valid conviction to sustain the warrant.
[24] Simple defects in form in a warrant of committal are not a basis for habeas corpus. As the Ontario High Court of Justice noted in Ross, ex parte, 1968 259 (ON SC), [1969] 1 O.R. 271 at para. 12, habeas corpus should not be used as an appeal. The object of the writ is to keep courts within their jurisdiction, not to correct their errors.
[25] In accordance with s.782, Ms. Codina's warrant of committal alleges that she was convicted, and there is a valid conviction to sustain the warrant, as has been determined by the Court of Appeal.
[26] I am satisfied that the application does not show a substantial ground for the order sought, that the application is frivolous, vexatious and constitutes an abuse of the court's process, and that it can be determined without a full hearing.
[27] The remaining issue for determination relates to the Respondent's request for costs on this proceeding.
[28] The authority to award costs in habeas corpus proceedings depends on whether the matter is characterized as civil or criminal in nature: Canada v. Samuel, 2019 ONCA 555 at para. 14. The Respondent may not request a costs award in this case because, as I have found, the Applicant's habeas corpus application is criminal in nature: Canada v. Samuel, 2019 ONCA 555, at para. 26. As the Court held in Little v. Canada (Attorney General), 2020 ONSC 3239, at para. 5, there is no jurisdiction to award costs in habeas corpus applications where the nature of the habeas corpus application is criminal in nature.
Order
[29] The Application is dismissed. There will be no award of costs.
M. Gibson. J.
Dated: September 17, 2021