



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2017 ONCA 93

DATE: 20170202

DOCKET: C62680

Feldman, Rouleau and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Marie Codina

Appellant

Angelina Marie Codina, acting in person

Robert Morin, for the respondent

Heard: January 11, 2017

On appeal from the orders of Justice Susanne R. Goodman
    of the Superior Court of Justice, dated July 6, 2016 and July 21, 2016.

By the Court:

[1]

The appellant is detained awaiting trial on a number of counts under the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27 (
IRPA
)
    in respect of advising on immigration matters as a non-lawyer without
    authorization to do so.
[1]
She was originally charged on May 7, 2014, and released on bail on July 15,
    2014. On September 17, 2015, she was arrested and charged with breaching her
    bail and committing further offences under the
IRPA
. Following a
    revocation hearing, her bail was cancelled on November 8, 2015. She was
    ultimately detained on all charges on December 8, 2015 after a show-cause
    hearing.

[2]

A preliminary hearing was commenced for each of the two sets of charges
    (the May 2014 charges and September 2015 charges). Before receiving a decision
    on the preliminary hearings, the Crown preferred a direct indictment on
    December 11, 2016, with respect to all the charges under the
IRPA
. The
    original charges, including the breach of bail charges, were stayed on January
    5, 2017.

[3]

While detained, the appellant has initiated a number of proceedings
    including three bail reviews, an application to remove Crown counsel from the
    record, an application before Code J. challenging the constitutionality of a
    number of relevant statutory provisions and procedures, three applications for
    prerogative relief, and a two-part
habeas corpus
application. All of
    the proceedings initiated by the appellant have been dismissed. She remains in
    custody pending trial under the new indictment.

[4]

This is the appeal of the denial of
habeas corpus
relief. The application
    judge gave two brief oral decisions for denying the two-part
habeas corpus
application on July 6 and 21, 2016, with written reasons to follow. To date, no
    written reasons have been provided. In these circumstances, the court agreed
    with the appellant that it was not in the interests of justice to delay the hearing
    of the appeal any longer.

Decision Below

[5]

The appellants
habeas corpus
application proceeded in two
    parts. The first part of the appellants argument was that the border service
    officers who arrested her did not have the statutory authority to do so. The application
    judge held that the officers had the requisite authority and in a brief oral
    statement, she dismissed the application on that ground on July 6, 2016.

[6]

The second part of the application was a challenge to the detention
    order of the Justice of the Peace dated December 8, 2015, on various
    jurisdictional and constitutional grounds. At the second hearing, the appellant
    raised two further issues  the failure to hold a 90-day bail review and an
    argument under s. 11(b) of the
Canadian Charter of Rights and Freedoms
.
    The application judge noted that the appellants argument on delay was that the
    amount of time she would spend in pre-trial custody would be close to, or could
    exceed, any sentence she would receive if convicted.

[7]

On July 21, 2016, the application judge gave brief oral reasons
    dismissing the balance of the grounds and stating that the written reasons for
    her dispositions on all grounds that could form part of a
habeas corpus
application would be provided later that week. The application judge then
    stated that there were other issues raised that did not properly form part of a
habeas corpus
application.

[8]

The application judge also noted that the appellant, being incarcerated
    and self-represented, did not fully comply with required procedures in raising
Charter
issues, but that all issues were argued in any event. The application judge was
    also aware that the appellant had had one bail review before Himel J. but the
    reasons for dismissal were not provided. In her oral endorsement the application
    judge stated that many of the grounds being raised were essentially
    re-arguments of positions taken on the detention application and that would be
    the subject of a bail review.

[9]

Although the appellant raised the issue that the duration of her
    pre-trial custody could well exceed her ultimate sentence if convicted, the application
    judge did not address that issue in her oral reasons.

Issues on this Appeal

[10]

The appellant was asked to address four issues at the appeal hearing:

1.

The validity of
    the preferred indictment;

2.

The impact of
    the stay on the continued validity of her detention;

3.

The statutory
    authority for the border officers to arrest her; and

4.

The duration of
    her pre-trial custody compared to her ultimate sentence if convicted.

[11]

The first two issues were not raised before the application judge as
    they arise from the direct indictment that was filed last month, but were
    raised by the appellant in her appeal materials. We are satisfied that it is
    appropriate for this court to deal with these new issues as the record is
    sufficient to do so. The third and fourth issues were raised before the application
    judge.

[12]

In her factum, the appellant raised two further arguments. In light of
    the short notice for scheduling this appeal, the appellant was not permitted to
    argue these issues at the hearing, with the possibility that she would return
    to argue them later. Her first additional issue relates to the constitutionality
    of a number of relevant statutory provisions and procedures. This issue was
    also raised before the application judge. The second issue is an attack on the
    evidentiary basis for her arrest and detention. It is unclear whether this
    issue was raised before the application judge.

Analysis

(1)

Preferring of Direct Indictment

[13]

The appellant submits that the direct indictment is a nullity because it
    was preferred with the consent of the Deputy Attorney General, when it is
    required that it be preferred by the Attorney General or Deputy Attorney
    General, relying on this courts decision in
R. v. Dwyer
(1978), 42
    C.C.C. (2d) 83 (Ont. C.A.), revd on other grounds [1980] 1 S.C.R. 481.

[14]

There is no merit in this submission because of an amendment to the
Criminal
    Code
since the
Dwyer
decision. In
Dwyer
, the direct
    indictment was preferred under s. 507 of the
Criminal

Code
, but only with the consent of the Attorney General
    of Ontario, not directly by him
. Subsection (3) provided:

507(3)
Notwithstanding anything in this
    section, where

(a) a preliminary inquiry has not been held, or

(b) a preliminary inquiry has been held and the
    accused has been discharged,

an indictment under subsection (1) shall not be
    preferred except with the written consent of a judge of the court, or by the
    Attorney General.

[15]

The court held that if the Attorney General does not personally sign the
    indictment, he must in a signed written direction clearly direct that the
    indictment be preferred or state that he prefers the indictment. To merely
    consent to the direct indictment being preferred would constitute an improper
    delegation of authority (pp. 100-101).

[16]

However, the direct indictment in this case was filed under the current s.
    577 of the
Criminal Code
which is differently worded and provides:

577

Despite
    section 574, an indictment may be preferred even if the accused has not been
    given the opportunity to request a preliminary inquiry, a preliminary inquiry
    has been commenced but not concluded or a preliminary inquiry has been held and
    the accused has been discharged, if

(a)
in the
    case of a prosecution conducted by the Attorney General or one in which the
    Attorney General intervenes, the personal consent in writing of the Attorney
    General or Deputy Attorney General is filed in court; or

(b)
in any
    other case, a judge of the court so orders.

[17]

This section now allows an indictment to be preferred with the consent
    in writing of the Deputy Attorney General. As a result, there is no
Dwyer
defect in the preferred indictment.

(2)

Continued Validity of Detention Order

[18]

Second, the appellant argues that because the previous informations were
    stayed as of January 5, 2017, the previous detention order is also stayed or no
    longer exists. We reject this submission.

[19]

Under s. 523(1.2), the previous detention order continues to apply in
    respect of the new indictment. That section provides:

523

(1.2)
When an accused, in respect of an offence with which
    the accused is charged, has not been taken into custody or is being detained or
    has been released from custody under or by virtue of any provision of this Part
    and after the order for interim release or detention has been made, or the
    appearance notice, promise to appear, summons, undertaking or recognizance has
    been issued, given or entered into, and an indictment is preferred under
    section 577 charging the same offence or an included offence, the order for
    interim release or detention of the accused and the appearance notice, promise
    to appear, summons, undertaking or recognizance, if any, applies in respect of
    the indictment.


[20]

The purpose and effect of s. 523(1.2) are to continue the previous detention
    order and make it apply to the new indictment. Any stay of the original charges
    therefore, has no effect on the ongoing status of the original detention order.

[21]

In conclusion, there is no basis to grant
habeas corpus
relief
    based on the two new issues raised by the appellant arising out of the direct indictment.

(3)

Remaining Grounds

[22]

This court does not have reasons from the application judge on the legal
    issues raised. Nor did the Crown assist the court by providing copies of the
    reasons of the other judicial officers who have addressed this matter, some of
    which were referred to by the application judge in her oral reasons. As a
    result, the court would in effect be deciding the remaining issues as a court
    of first instance without a proper record.

[23]

Further, it appears that there is considerable overlap
    between the constitutional issues the appellant raised on her
habeas corpus
application and those raised on the application before Code J., which was
    brought following the dismissal of the
habeas corpus
application. Justice
    Code declined to deal with most of the issues on their merits. Relying on the
    decision of this court in
R. v. Duvivier
, 64 C.C.C. (3d) 20 (Ont.
    C.A.), at pp. 23-25, he held that challenges to the jurisdiction of the court
    and the constitutionality of the underlying provisions should be determined at
    trial, on a full record. In
Duvivier
,
this court stated that:

Mr. Justice Farley also had original jurisdiction as a judge of
    the superior court to consider the application for declaratory relief brought
    under s. 24(1) of the Charter. The jurisdiction to grant that relief, either
    by way of prerogative writ or under s. 24(1) of the Charter, is
    discretionary. It is now firmly established that a court should not routinely
    exercise that jurisdiction where the application is brought in the course of
    ongoing criminal proceedings. In such cases, it is incumbent upon the applicant
    to establish that the circumstances are such that the interests of justice
    necessitate the immediate granting of the prerogative or Charter

remedy
    by the superior court.

These cases dictate that issues, including those with a
    constitutional dimension, which arise in the context of a criminal prosecution
    should routinely be raised and resolved within the confines of the established
    criminal process which provides for a preliminary inquiry (in some cases), a
    trial, and a full appeal on the record after that trial.

Those same cases identify the policy concerns which underline
    the predilection against resort to the superior court for relief during
    criminal proceedings. Such applications can result in delay, the fragmentation
    of the criminal process, the determination of issues based on an inadequate
    record, and the expenditure of judicial time and effort on issues which may not
    have arisen had the process been left to run its normal course. The effective
    and efficient operation of our criminal justice system is not served by
    interlocutory challenges to rulings made during the process or by applications
    for rulings concerning issues which it is anticipated will arise at some point
    in the process. A similar policy is evident in those cases which hold that
    interlocutory appeals are not available in criminal matters.

I stress, however, that this limitation on resort
    to Charter or extraordinary remedy relief during criminal proceedings
    has been judicially imposed and cannot be taken as the equivalent of an
    absolute privative clause barring all such applications. Where the
    circumstances are such that the interests of justice require immediate
    intervention by the superior court, that jurisdiction can and will be
    exercised.
R. v. Rahey supra
, provides
    a good example of a situation in which such intervention was warranted. [Citations
    omitted.]

[24]

However, in the last paragraph quoted from
Duvivier
, the court
    emphasized that where circumstances require the Superior Court to intervene in
    the interests of justice, the court may exercise that power on a
habeas
    corpus
application. As the Supreme Court recently stated,
h
abeas
    corpus
is a crucial remedy for those whose residual liberty has been
    taken from them by the state and should rarely be subject to restrictions:
Mission
    Institution v. Khela
, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 54.

[25]

In oral argument, the appellant acknowledged that although she may argue
    at her trial the issues she is raising that challenge the legality of a number
    of provisions of the
IRPA
and
Criminal Code
that underlie the
    charges or procedures employed, she is raising them here because she remains
    incarcerated pending trial.

[26]

The appellant also again raises the issue regarding the duration of her
    pre-trial custody in relation to the potential sentence she could receive if
    convicted. She has now spent 18 months in pre-trial custody. Over sixteen
    months have passed since her re-arrest on charges that she breached her bail, and
    while the new charges she allegedly committed while on bail are proceeding, the
    charges that she failed to comply with her bail have been stayed.

[27]

The maximum sentence for five of the counts is two years and five years
    for the sixth count. The appellant relies on case law that shows that the range
    of sentences for immigration offences is much lower than two years, and that
    there is a strong argument that she will have spent a longer period
    incarcerated in pre-trial custody than she would if she were convicted and sentenced
    for her alleged conduct. See
R. v. Dhalla
(2007), 63 Imm. L.R. (3d) 49
    (Ont. S.C.) and
R. v. Ren
, 2015 ONSC 3397, 35 Imm. L.R. (4th) 327.

[28]

At this point the appellant has been in custody for a further six months
    since the application judges dismissal of her
habeas corpus
application. She has had two further bail reviews. The court was not provided
    with the reasons on any of the three bail reviews. However, the court was able
    to obtain a copy of the oral reasons of the third one of December 29, 2016. While
    the appellant raised the issue of the duration of her pre-trial custody
    compared to her potential sentence on conviction as one of a number of grounds,
    it was not specifically addressed in the reasons.

[29]

In our view, this is now a serious liberty issue, which is why this
    court expedited the hearing of the appeal. However, it is an issue that is best
    addressed in the context of a bail review. Although the appellant has argued
    the issue before, it does not appear to have been fully considered. As well,
    more time has passed and the breach of bail charges have now been stayed. These
    are new factors that may well affect the considerations of a judge when determining
    the issues on a bail review.

Disposition

[30]

In our view, in all these circumstances, the appropriate order is to set
    aside the decision of the application judge for failure to give adequate reasons
    and order a new bail review hearing to be held forthwith. These reasons are to
    be provided by the Crown to the judge conducting the bail review.

[31]

A new
habeas corpus
hearing is adjourned pending the outcome of
    the bail review.
[2]

Released: February 2, 2017 (K.F.)

K.
    Feldman J.A.

Paul Rouleau J.A.

K. van
    Rensburg J.A.





[1]

The following facts are
based on those provided by the
    parties to this appeal.



[2]

See
R. v. Jones
(1996), 32 O.R. (3d) 365 (C.A.), where this court upheld a decision
    by a motion judge to adjourn a
habeas
    corpus

application and order a new bail hearing
    following a direct indictment.


