



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2019 ONCA 986

DATE: 20191216

DOCKET: C65015

Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Codina

Appellant

Alan D. Gold and Laura J. Metcalfe, for the appellant

Kevin R. Wilson and Vanita Goela, for the respondent

Heard: December 10, 2019

On appeal from the sentence imposed by Justice Anne M.
    Molloy of the Superior Court of Justice, on May 29, 2018, with reasons reported
    at 2018 ONSC 2180.

REASONS FOR DECISION

[1]

Angelina Codina appeals the sentence of seven years (before credit for
    pre-sentence custody) imposed on her by the trial judge. She was convicted by a
    jury on 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
, S.C. 2001, c. 27, (
IRPA
), and one
    count of counselling a person to make a misrepresentation in an immigration
    application, contrary to s. 126 of the
IRPA
.
[1]

[2]

In accordance with the principles laid down in
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11: [E]xcept where a sentencing
    judge makes an error of law or an error in principle that has an impact on the
    sentence, an appellate court may not vary the sentence unless it is
    demonstrably unfit.

[3]

With respect to that test, the appellant advances five errors that she
    says the trial judge committed in determining the sentence. First, the
    appellant asserts that the trial judge erred in relying on delay in the
    proceedings, arising from various pre-trial steps that the appellant took, to
    deny her enhanced credit for pre-sentence custody. We do not agree. Delay
    caused by an accused person is a proper basis to deny enhanced credit for the
    time spent in pre-sentence custody or on stringent bail terms. It constitutes
    wrongful conduct (para. 48) or bad conduct (para. 71) which was identified,
    in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, as a basis for
    limiting enhanced credit for pre-sentence custody. The trial judge had
    available to her the many motions that the appellant had brought in advance of
    the trial, the vast majority of which were dismissed as being without merit.
    Further, the question of what credit to allow for pre-sentence custody was a
    matter entirely within the discretion of the trial judge.

[4]

Second, the appellant contends that the trial judge relied on victim
    impact statements to improperly increase the sentence. Again, we do not agree.
    A trial judge is entitled to factor the impact of the offenders conduct on the
    victim into her determination of an appropriate sentence. That is one of the
    purposes behind receiving victim impact statements. It only becomes an error if
    the trial judge relies on a victim impact statement to impose an unfit
    sentence:
R. v. A.G.,
2015 ONCA 159, 124 O.R. (3d) 758, at para. 72.
    That did not happen in this case.

[5]

Third, the appellant says that the trial judge improperly relied on a
    portion of one sentence in the pre-sentence report as an aggravating factor. On
    this point, the trial judge was concerned, on her own, about the potential for
    the appellant to commit future offences and, in doing so, to cause harm to a
    new victim pool. The trial judge noted that the author of the pre-sentence
    report had expressed the same concern. This was an entirely appropriate point
    for the trial judge to make, given the appellants past conduct and expressed
    future plans. It was not driven by the contents of the pre-sentence report and
    there was no improper reliance on this reference from it.

[6]

Fourth, the appellant complains both that the maximum sentence was
    imposed on the four counts of providing advice and that those counts were made
    consecutive as opposed to concurrent to each other. Given the criminal record
    of the appellant, including her convictions in the United States for
    essentially the same type of conduct, and the fact that the maximum sentence
    was only two years, we do not see any error in the trial judge concluding that
    a two-year sentence was appropriate. As the court said in
R. v. L.M.,
2008 SCC 31, [2008] 2 S.C.R. 163, at para. 20, [I]f the circumstances warrant
    imposing the maximum sentence, the judge must impose it.

[7]

We also do not agree that the trial judge erred in imposing consecutive
    sentences on the four counts of providing advice. Each of those counts
    represented a separate act involving different individuals at different times
    over a four-year period. It was appropriate to impose consecutive sentences in those
    circumstances, subject to the totality principle, which the trial judge also
    applied. Indeed, a court is directed by the sentencing provisions of the
Criminal
    Code
to consider imposing consecutive sentences when sentencing a person
    for more than one offence that do not arise out of the same event or series of
    events: R.S.C. 1985, c. C-46, s. 718.3(4)(b)(i).

[8]

Fifth, the appellant says that the trial judge erred in failing to avert
    to, and give credit for, the period of time that she spent on bail pending her
    trial, in accordance with the principles set out in
R. v. Downes
(2006),
    79 O.R. (3d) 321 (C.A.). We cannot fault the trial judge for not mentioning
    this issue when trial counsel did not raise it in his sentencing submissions.
    Further, there was no evidence before the trial judge that the bail conditions prejudiced
    or imposed undue hardship on the appellant:
Downes
, at para. 37. Given
    that fact, and the failure of counsel to raise the issue, it cannot be said
    that the trial judge erred in principle in failing to address the terms of the
    appellant's pre-sentence release as a potential mitigating factor:
R. v.
    Pomanti
, 2017 ONCA 48, at para. 34. We would also observe that any credit
    that the trial judge might have given on this basis would have been more than
    compensated for by the sentence reduction that the trial judge granted based on
    the totality principle.

[9]

Lastly, we note that the appellant did not press the ground that the
    trial judge relied on aggravating facts that were not raised by the parties
    during the sentencing hearing. Consequently, we do not need to address that
    issue.

[10]

The trial judge gave detailed and careful reasons for imposing the
    sentences that she did. The appellant has failed to establish any error on the
    part of the trial judge, either in her analysis or in her conclusions. The
    appellant has also failed to establish that the sentences are demonstrably
    unfit.

[11]

While leave to appeal sentence is granted, the appeal is dismissed.

Alexandra Hoy
    A.C.J.O.
P. Lauwers J.A.
I.V.B. Nordheimer J.A.





[1]

A separate conviction appeal is outstanding.


