



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2017 ONCA 527

DATE: 20170623

DOCKET: C63259 & C63260

Tulloch, Lauwers and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Marie Codina

Appellant

Angelina Marie Codina, in person

Jason A. Morische, for the respondent

Heard: June 6, 2017

On appeal from the judgments of Justice Michael Code of
    the Superior Court of Justice, both dated November 24, 2016, dismissing the appellants
    applications, with reasons reported at 2016 ONSC 7305 and 2016 ONSC 7335,
    respectively.

By the Court:

A.

background

(1)

Introduction

[1]

The appellant, Angelina Codina, is presently charged with six counts
    under the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27
    (the 
IRPA
) pursuant to a direct indictment preferred under s. 577 of
    the
Criminal Code
, R.S.C. 1985, c. C-46, dated December 8, 2016, and
    filed with the Superior Court of Justice on December 19, 2016. Previously, Ms.
    Codina had been the subject of two preliminary inquiries, but on January 5,
    2017, the Crown stayed these proceedings pursuant to s. 579 of the
Criminal
    Code
.

[2]

The first set of charges was laid on May 8, 2014, at the initiation of
    an investigator for the Canada Border Services Agency (CBSA), alleging that Ms.
    Codina was providing advice to various individuals concerning immigration
    matters in return for payment of fees, and that she was neither a lawyer nor a
    member of the Immigration Consultants of Canada Regulatory Council during the
    relevant periods; during that time, Ms. Codina was a disbarred lawyer. These
    alleged actions would contravene s. 91 of the
IRPA
. On the same day, Ms.
    Codina was brought before a justice of the peace, who granted bail pursuant to
    s. 515(2) of the
Criminal Code
, with the CBSA as the agency assigned
    to execute the bail.

[3]

The second set of charges was laid on September 18, 2015, alleging
    breach of recognizance (
Criminal Code
, s. 145) as well as fresh
    violations of s. 91 of the
IRPA
. Ms. Codinas bail was revoked
    pursuant to s. 524 of the
Criminal Code
and she was detained on
    December 8, 2015 on both sets of charges.

[4]

Ms. Codina brought a bail review in the Superior Court, which Himel J.
    denied on May 20, 2016. She then brought a two-part
habeas corpus
application
    before Goodman J., who denied the application on July 6 and July 21, 2016.
    Clark J. denied a second bail review on October 19, 2016. Ms. Codina appealed
    Goodman J.s decision to the Court of Appeal, and also brought several
    applications before Code J. of the Superior Court (the applications judge),
    described below. As explained below, Ms. Codina was granted bail.

[5]

There is an eight day trial set to start in September 2017, with
    pre-trial motions set to convene on June 22, and 23, 2017.

(2)

The Applications on Appeal

(a)

Applications for prerogative relief

[6]

In three applications with various dates, Ms. Codina asserted that the
    judge who presided at one of her preliminary inquiries (the PI judge) had
    lost jurisdiction.

[7]

In her first application, Ms. Codina contended that the PI judge had
    committed various jurisdictional errors in rulings made on August 17, 2016,
    during the focus hearing prior to the scheduled preliminary inquiry. The PI
    judge dismissed Ms. Codinas application to quash the Informations against her
    and the judge ruled that she had no discretion to hear the constitutional
    issues that Ms. Codina had raised. With respect to Ms. Codinas other issues,
    the PI judge held that, if the matter were to go to trial, the trial judge
    would have the power to address them.

[8]

In her second application, Ms. Codina contended that the PI judge made
    jurisdictional errors in proceeding with the preliminary inquiry in the face of
    r. 43.03(5) of the
Criminal Proceedings Rules
and in the absence of an
    order pursuant to r. 43.03(6) of the
Criminal Proceedings Rules
.

[9]

In her third application, Ms. Codina contended that the PI judge
    committed a jurisdictional error in having her arraigned on the second of three
    Informations before the court. Ms. Codina argued that this second Information
    charged different offences from those charged in the first Information and that
    s. 523 of the
Criminal Code
did not apply. The PI judge disagreed and
    arraigned Ms. Codina on the second Information.

(b)

The
Charter
application

[10]

Ms. Codina also brought a constitutional challenge with respect to
    various provisions of the
Criminal Code
and the
IRPA
, seeking
    the following declarations: (i) that ss. 145(3) and 524(8) of the
Criminal
    Code
violate ss. 7 and 11(
d
) of the
Charter
because they
    include reverse onus clauses; (ii) that ss. 523 of the
Criminal Code
,
    as applied in Ms. Codinas case, violates a number of
Charter
provisions,
    including s. 7, because of overbreadth, vagueness and arbitrariness; (iii) that
    the core provisions of Part 18 of the
Criminal Code
, which sets out
    the powers and jurisdiction of a judge presiding at a preliminary inquiry,
    violate a number of
Charter
provisions, including s. 7, because of
    overbreadth, vagueness and arbitrariness; and that ss. 91(1), 126 and 138(1) of
    the
IRPA
violate a number of
Charter
provisions, including s.
    7, because of overbreadth, vagueness and arbitrariness.

(c)

The applications judges decisions on the applications

[11]

In two sets of reasons, both released on November 24, 2016, the
    applications judge dismissed all of Ms. Codinas applications for prerogative
    relief as well as her
Charter
application.

(3)

Subsequent Procedural History

[12]

After the applications judge had dismissed the applications before him,
    a panel of this court heard Ms. Codinas appeal from the denial of her
habeas
    corpus
application. In a decision dated February 2, 2017,
R. v. Codina
,
    2017 ONCA 93, this court set aside the lower courts decision for failure to
    provide adequate reasons and ordered a new
habeas corpus
hearing, to
    be adjourned pending the outcome of a new bail review hearing.

[13]

After the new bail review hearing, in reasons dated February 28, 2017,
    the review judge granted bail on a recognizance of $1,000 with no deposit and
    no sureties, ordering Ms. Codina to live with her mother:
R. v. Codina
,
    2017 ONSC 1384. The ground for allowing bail on review was that there was a
    serious risk that Ms. Codinas time in pre-trial custody would exceed her
    ultimate sentence if convicted (para. 26).

B.

issues on appeal

[14]

Ms. Codina raises the following grounds of appeal from the applications
    judges judgments:

(i)       Does s.
    145(3) of the
Criminal Code
violate s. 11(
d
) of the
Charter
?

(ii)      Do ss.
    524(4) & (8) of the
Criminal Code
violate s. 11(
d
) of the
Charter
?

(iii)     Does the
    jurisdictional scheme for preliminary inquiries in Part XVIII of the
Criminal
    Code
violate s. 7 of the
Charter
on the ground of vagueness?

(iv)     Does s. 91
    of the
IRPA
violate s. 7 of the
Charter
?

(v)      Does s.
    126 of the
IRPA
violate s. 7 of the
Charter
?

(vi)     Does s.
    138(1) of the
IRPA
violate s. 7 of the
Charter
?

C.

Analysis

[15]

For the following reasons, we dismiss this appeal.

[16]

Ms. Codinas only plausible argument for relief
from
    this panel
is that the applications judge erred in holding that the PI
    judge did not make a jurisdictional error in declining to quash the
    Informations on the basis of Ms. Codinas argument that the CBSA officers
    lacked any statutory authority to arrest, charge and detain her. As this court
    noted in its February 2, 2017 decision on Ms. Codinas
habeas corpus
appeal,
    the substance of this ground of appeal is similar to the argument underlying Ms.
    Codinas
habeas corpus
application:
R. v. Codina
, 2017 ONCA
    93, at para. 23.

[17]

In support of her grounds of appeal before this panel, Ms. Codina relies
    on the
obiter dictum
in 2017 ONCA 93 that we have just mentioned,
    suggesting substantial overlap between the substance of her
habeas corpus
application
    and her applications before the applications judge. This court also suggested
    at para. 24 of its February 2, 2017 decision that this case might be one in
    which the
dictum
in
R. v. Johnson
(1991), 3 O.R. (3d) 49
    (Ont. C.A.), at p. 54, should have applied to allow for
Charter
remedies
    or prerogative relief during ongoing criminal proceedings.

[18]

Ms. Codina relies on a passage in
Johnson
, at p. 54, where Doherty
    J.A. noted limits on the rule against granting
Charter
remedies or
    prerogative relief before the completion of a criminal trial:

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.

[19]

We reject the argument for application of this
dictum
to Ms.
    Codinas case because, since she has been released on bail, the analysis in
Johnson
reverts to favouring a denial of any
Charter
or prerogative remedy
    while Ms. Codinas criminal proceeding remains ongoing. The panel that decided Ms.
    Codinas
habeas corpus
appeal did so on the basis that she still was
    in pre-trial custody; the panel relied on the
dictum
in
Johnson
to
    justify ordering a bail review before a new
habeas corpus
hearing.

[20]

Instead, we believe that the immediately preceding paragraph on p. 54 of
Johnson
is apposite:

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.

[21]

The factual record for this hearing is extremely
    poor. As the applications judge noted in his reasons on the applications, the
    factual record consists essentially of Ms. Codinas affidavit, plus some
    supporting documents like warrants, informations and bail documents. Since she
    has obtained bail, we perceive no requirement of justice to grant any of her
    applications for
Charter
or prerogative relief at
    this time. Furthermore, since the panel in 2017 ONCA 93 allowed Ms. Codinas
    appeal and ordered a new
habeas corpus
hearing
    pending the outcome of the bail review, she should be able to obtain elsewhere
    any remedy to which she has a right arising from these proceedings. Lastly, the
    Crowns decision to prefer a direct indictment pursuant to s. 577 of the
Criminal
    Code
and to stay the preliminary inquiries pursuant to s.
    579 effectively renders this appeal moot.

D.

Disposition

[22]

For the reasons provided above, the appeal is dismissed.

Released: DB JUN 23 2017

M. Tulloch J.A.

P. Lauwers J.A.

David Brown J.A.


