



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2021 ONCA 370

DATE: 20210602

DOCKET: M52317 (C65015)

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Marie Codina

Applicant

Martin Kerbel, for the applicant

Vanita Goela, for the respondent

Heard: in writing

ENDORSEMENT

OVERVIEW

[1]

Angelina Codina has applied for leave to appeal
    three decisions of this court to the Supreme Court of Canada (the Leave to
    Appeal Application). In this application in writing, she seeks bail pending her
    Leave to Appeal Application.

[2]

Ms. Codina has not met her burden of persuading me
    that her release pending the determination of her Leave to Appeal Application is
    in the public interest. The application for bail pending leave to appeal to the
    Supreme Court of Canada is therefore dismissed.

BACKGROUND & MATERIAL FACTS

[3]

Ms. Codina is a trained lawyer who was disbarred
    in Ontario after being convicted of defrauding the Ontario Legal Aid Plan. She
    was subsequently convicted in New York State of grand larceny and a fraud
    charge, where she served a 5-year sentence before being deported to Canada.

[4]

While in Canada, Ms. Codina owned and
    administered Codina International, an immigration consulting corporation. As
    the result of events that occurred between late 2011 and early 2014 relating to
    Codina International, Ms. Codina was charged with offences contrary to the
Immigration and Refugee
    Protection Act
, S.C. 2001
,
c. 27 (
IRPA
).

[5]

On November 22, 2017, after a trial by jury, Ms.
    Codina was convicted of four counts of providing advice to persons on
    immigration matters without being authorized to do so, contrary to s. 91(1) of
IRPA
. She was also
    convicted on one count of knowingly counselling a person to make a
    misrepresentation in an immigration application, contrary to
IRPA

s. 126.

[6]

On May 29, 2018, Ms. Codina received a sentence
    of seven years imprisonment, which was reduced to five years because of pre-sentence
    custody. She was also ordered to pay $30,200 in restitution. In sentencing Ms.
    Codina, the sentencing judge concluded that she is someone who preys on
    vulnerable people and who represents a threat to the community because she is
    ungovernable.

[7]

Ms. Codina appealed both her convictions and
    sentence to this court. To minimize delay, the appeals were bifurcated after a
    case management conference. Ms. Codinas sentence appeal was dismissed on
    December 16, 2019. Her conviction appeal was dismissed from the bench on
    October 26, 2020 for reasons to follow, which were released on December 30,
    2020.

[8]

Ms. Codina did not seek leave to appeal either
    decision to the Supreme Court of Canada in a timely way. Instead, she filed a
habeas

corpus

application
    in the Superior Court of Justice and a motion before this court to re-open her conviction
    and sentence appeals. The
habeas

corpus

application
    was dismissed from the bench on January 22, 2021, with reasons released on February
    1, 2021. Recently, on May 13, 2021, this court dismissed an appeal in writing from
    that dismissal. By that time, Ms. Codinas motion to re-open her appeals, which
    was also heard in writing, had already been denied on February 24, 2021.

[9]

The Leave to Appeal Application that Ms. Codina
    now brings to the Supreme Court of Canada advances grounds raised in a notice
    of application for leave to appeal and additional grounds identified in a supplementary
    notice of application for leave to appeal. In her Leave to Appeal Application, Ms.
    Codina seeks leave to appeal the decisions rendered by this court in her
    conviction appeal, her sentence appeal, and her motion to re-open those appeals.
    The Supreme Court of Canada has yet to decide whether to assign a file number
    to the Leave to Appeal Application.

MS. CODINAS
    POSITION

[10]

Ms. Codina now applies, in writing, for release
    pending the disposition of her Leave to Appeal Application. This application
    was initially set to be heard in writing on April 7, 2021 but was adjourned at
    Ms. Codinas request so that she could retain counsel and file additional
    material.

[11]

In support of this application, which is now
    ready to be heard, Ms. Codina argues that the many grounds of appeal she
    proposes in her Leave to Appeal Application are substantial and meritorious.
    Those grounds of appeal include challenges that were rejected by this court,
    most notably:

·

challenges to the constitutionality of
IRPA
,
    ss. 91(1) and 126,

·

challenges to the validity of the indictment,

·

Charter

and jurisdictional challenges
    related to her arrest and charging, and

·

challenges to the trial judges jury charge.

[12]

Ms. Codina also argues that, during her
    conviction appeal, this court misapprehended arguments she made challenging the
    indictment. She further submits that, during her motion to re-open, this court
    misapprehended her argument that
IRPA
s. 91(1) has been arrogated or assumed by s. 77(c) of the
College of Immigration and
    Citizenship Consultants Act
, S.C. 2019, c. 29, s. 292 (
CICCA
), which came
    into force in June 2019. She argues that
CICCA
necessarily rendered
IRPA
s. 91(1)
    inoperative, and that this has made unauthorized representation a regulatory,
    non-criminal matter. She argues that she should have the benefit of this change
    in the law, and that this change in the law enhances her Leave to Appeal Application.

[13]

Of note, Ms. Codina also argues that the
    decision to bifurcate her conviction and sentence appeals deprived this court
    of information it required to adjudicate the sentence appeal. This argument is
    being raised for the first time in the Leave to Appeal Application.

[14]

In further support of this application, Ms.
    Codina relies on her history of surrendering for court hearings and argues
    that, at 63 years of age, she is at heightened risk of COVID-19 infection while
    incarcerated, increasing the public interest in her release. She relies, as
    well, on proof that she would be employed while on release pending her Leave to
    Appeal Application.

THE CROWNS POSITION

[15]

The Crown opposes Ms. Codinas application for
    bail pending her Leave to Appeal Application. Although conceding that Ms.
    Codina would likely surrender herself into custody as required, the Crown
    argues that she has not met her burden of establishing on the balance of
    probabilities that her detention is not necessary in the public interest. The
    Crown submits that Ms. Codinas grounds of appeal are frivolous, that she poses
    a residual risk to public safety, and that, in the circumstances, she has not
    shown that the public interest in enforcement outweighs the public interest in
    reviewability.

ANALYSIS

[16]

I would dismiss Ms. Codinas application for
    bail pending her Leave to Appeal Application.

[17]

I do so even though I am not prepared to join
    the Crown in characterizing Ms. Codinas proposed grounds of appeal as
    frivolous. As the Supreme Court of Canada recently emphasized,

the
    not frivolous standard is a very low bar:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250,
    at para. 20.

[18]

However, in assessing the reviewability
    interest, the strength of the appeal plays a central role. Although the initial
    not frivolous hurdle is met in this case, I cannot say that Ms. Codinas proposed
    grounds of appeal 
clearly surpass
the minimal standard required to meet
    the not frivolous criterion:
Oland
, at para. 44 (emphasis added). This
    decreases the weight of the public interest in reviewability.

[19]

I also share the Crowns conclusion that there
    is a residual public safety concern. Ms. Codina is no longer presumed to be
    innocent of the offences that are the subject of her Leave to Appeal
    Application. Those offences are serious and Ms. Codina was found, on impressive
    evidence, to have committed those offences against highly vulnerable
    individuals. There is foundation on the record for the sentencing judges
    conclusion that Ms. Codina preys on the vulnerable and is ungovernable. The
    residual risk she poses increases the weight of the public interest in
    enforcement.

[20]

Even leaving aside the residual risk to public
    safety, the seriousness of the offences and the significant sentence imposed
    support the public interest in enforcement.

[21]

Importantly, Ms. Codina has no further right of
    appeal. She has had her appeals, as well as a
habeas

corpus

application and a motion for
    reconsideration. I have already noted that the grounds of appeal she proposes
    in her Leave to Appeal Application do not appear strong. I would add that the
    operation of the reviewability principle in this case is contingent upon the
    Supreme Court of Canada granting Ms. Codina leave to appeal, something which
    that court does only sparingly. At this juncture of the proceedings, the
    principle that trial judgments should be enforced is very much in play and
    should be given paramountcy in this case:
R. v. Drabinsky
, 2011 ONCA 647, 276 C.C.C. (3d)
    277, at paras. 11 and 13.

[22]

I have considered the risk that Ms. Codina could
    contract COVID-19 while incarcerated. Ms. Codina has not established with
    evidence that her risk of infection is pronounced enough to materially
    influence the outcome of this application.

[23]

In the circumstances, Ms. Codina has failed to satisfy
    me on the balance of probabilities that public confidence in the administration
    of justice would not suffer if she were released pending her Leave to Appeal Application
    instead of continuing to serve her sentence.

CONCLUSION

[24]

Ms. Codinas application for release pending leave
    to appeal to the Supreme Court of Canada is dismissed.

David M. Paciocco J.A.


