



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2021 ONCA 317

DATE: 20210513

DOCKET: C69153

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Codina

Appellant

Angelina Codina, acting in person

Vanita Goela, for the respondent

Heard: in writing

On appeal from
    the judgment of Justice Suhail A.Q. Akhtar of the Superior Court of Justice,
    dated February 1, 2021, with reasons reported at 2021 ONSC 765.

REASONS FOR DECISION

[1]

The appellant appeals the dismissal of her application for a writ of
habeas
    corpus
, alleging that she has been unlawfully detained and should be
    released.

[2]

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] 1 S.C.R. 296, at p. 298.

[3]

In his reasons dated February 1, 2021, for dismissing her
habeas
    corpus
application, the application judge concluded that the appellant did
    not satisfy the first limb of the test: there are no reasonable grounds for the
    complaint that the applicant is unlawfully detained.

[4]

Pursuant to the endorsement of MacPherson J.A. of March 10, 2021, this appeal
    proceeded in writing. The appellant filed both a factum and a reply factum.

[5]

The appellant argues that the application judges conclusion that the
    first limb of the test was not satisfied is tainted by legal error. For the
    following reasons, we reject that argument and dismiss this appeal.

Background

[6]

Some background is necessary to provide context for this appeal.

[7]

A jury convicted the appellant of four counts of providing advice or
    representation for consideration, contrary to s. 91(1) of the
Immigration
    and Refugee Protection Act
, S.C. 2001, c. 27 (IRPA), and one count of
    knowingly counselling a person to make a misrepresentation in relation to
    matters relevant to the administration of the IRPA, contrary to s. 126. The
    trial judge imposed a total sentence of seven years, with two years credit for
    presentence custody, yielding a net sentence of five years. The trial judge
    also ordered the appellant to pay restitution in the amount of $30,200. The
    reasons for sentence are reported at
R. v. Codina
,
    2018 ONSC 2180.


[8]

The appellant appealed conviction and sentence. This court heard and
    dismissed her sentence appeal in December 2019:
R. v. Codina
, 2019
    ONCA 986. The conviction appeal was heard on October 26, 2020. The appellant
    raised 11 grounds of appeal, including that the Canadian Border Services Agency
    did not have jurisdiction to arrest her. Her conviction appeal was dismissed
    from the bench, for reasons which followed in
R. v. Codina
, 2020 ONCA
    848 (the Conviction Appeal).

[9]

After this court dismissed the Conviction Appeal, she filed her
habeas
    corpus
application with the Superior Court on December 17, 2020. On
    January 7, 2021, this court received the appellants notice of motion to
    re-open the Conviction Appeal arguing, among other grounds, that there had been
    a change in the law.

[10]

The
    appellants
habeas corpus
application was dismissed from the bench on
    January 22, 2021, and the reasons were released on February 1, 2021:
R. v.
    Codina
, 2021 ONSC 765. The application judge wrote:

Nearly all of the grounds outlined by the applicant were
    determined at trial before Molloy J. and at the Court of Appeal. On both
    occasions, the applicants complaints were dismissed. For example, the claims
    that the Canadian Border Services Agency lacked jurisdiction to arrest the
    applicant was discussed and dealt with at paras. 47-50 of the Court of Appeals
    decision; the deficiencies in the indictment at paras. 69-73.

The applicants latest claim, regarding a change in the law, is
    a matter that she seeks to raise before the Court of Appeal for Ontario. If the
    applicant is successful in persuading the court to re-open the appeal, it would
    be open to her to apply for bail. If unsuccessful, then the question of whether
    her detention is unlawful on that basis is resolved.

[11]

The
    appellant brought a motion to re-open her appeal in this court in January 2021.
    On February 3, 2021, this court received the appellants motion for bail
    pending determination of the motion to re-open her appeal.

[12]

On
    February 24, 2021, this court dismissed the appellants motion to re-open the Conviction
    Appeal and her sentence appeal and accordingly dismissed the application for
    bail as moot:
R. v. Codina
, 2021 ONCA 109. The court concluded that
    all the appellants points, save one, were dealt with in the courts
    comprehensive reasons for dismissing the Conviction Appeal and there was no
    basis to assert a miscarriage of justice. On the motion, the appellant argued
    that a new independent federal body has been created to regulate and govern
    immigration consultants, and because of the creation of this new regulatory
    body, s. 91(1) of the IRPA is null and void. As to this new argument, the court
    wrote, at para. 6:

The applicant also asserts that the appeals should be reopened
    because a new independent federal body has been created to regulate and govern
    immigration consultants. That, however, is irrelevant to the charges against
    the applicant, who in any event was never an authorized immigration consultant.

[13]

The
    appellant has sought leave to appeal her Conviction Appeal and sentence appeal to
    the Supreme Court of Canada and bail pending that appeal. Her bail application
    has been adjourned, pending the decision on her application for leave to appeal
    to the Supreme Court of Canada.

Analysis

[14]

The
    appellant advances what we would characterize as two main arguments. The first
    is that the application judge erred in his approach by considering
    determinations, or anticipated determinations, in her criminal proceedings in
    determining her
habeas
application. The second
    is that the application judges reasons were insufficient.

(1)

Consideration of determinations in her criminal proceedings

[15]

We
    understand the appellant to argue that the purpose of the criminal proceedings
    against her  her Conviction Appeal, her motion to re-open, and her bail
    application  on the one hand, and her
habeas
application, on the other, differs, so that the determinations of the trial
    judge and this courts determinations or anticipated determinations on the Conviction
    Appeal, the motion to re-open and bail application were irrelevant, and should
    have had no bearing on her
habeas
application.
    She argues that the application judge erred in relying on those determinations
    and anticipated determinations.

[16]

By
    way of example, the appellant submits that the application judge should himself
    have addressed her change in law argument and not left it to this court to
    determine on her motion to re-open. In brief, that argument, as now framed,  is
    that: as a result of the enactment of the
College of Immigration and
    Citizenship Consultants Act
, S.C. 2019, c. 29, s. 292, in 2019, s. 91(9)
    of the IRPA is deemed to have been repealed; because she was convicted under s.
    91(9), it is a change in law in her favour and, as she was still in the judicial
    system at the time of the change, she is entitled to the benefit of that
    change; and, as s. 91(9) is deemed to have been repealed, her detention as a
    result of being convicted under that section is unlawful. We understand her to
    argue that since the application judge erred by failing to address her change
    in law argument on the
habeas
application, the court should consider
    the change in law issue afresh on this appeal, and is not bound by the
    determination of the court on the change of law issue on the motion to re-open.
    She says that this court did not fully address her change in law arguments on
    the motion to re-open.

[17]

On the
habeas
application, the appellant filed an affidavit
    and a reply factum in which she briefly addresses the change of law issue. In
    these materials, she frames her argument in a manner similar to on her motion
    to re-open
.

[18]

The
    appellant devoted approximately three paragraphs of her hand-written factum on
    the motion to re-open to her change of law argument and this court addressed
    the argument she made in its reasons on her motion to re-open.  On this appeal,
    the appellant frames her change of law argument much more broadly than she did
    in her affidavit and reply factum on the
habeas
application and in her factum before this court on her motion re-open.

[19]

In
    our view, the application judge did not err in his approach. The appellant was
    seeking to re-litigate issues that were comprehensively addressed by the trial judge
    and this court or to litigate the key basis for the motion to re-open that was
    pending in this court.

(2)

Sufficiency of reasons

[20]

The
    appellant argues that the application judges reasons were insufficient because
    he did not address what she says was her argument that the trial court lacked
    jurisdiction to try the offences because Public Prosecution Services Canada
    (PPSC), which conducted the prosecution in this case, does not have statutory
    authority to proceed by way of direct indictment. She argues only the
    Department of Justice of Canada may do so and the PPSC is not part of the
    Department of Justice. The application judges reliance on this courts reasons
    on the Conviction Appeal was insufficient as this court did not address this
    jurisdictional argument in the portion of its reasons about the alleged
    deficiencies in the indictment.

[21]

The
    appellant makes this jurisdictional argument without reference to any
    authorities or supporting materials.

[22]

The
    application judge provided sufficient reasons. He outlined the applicable test for
    a
habeas
application and explained why the
    application was dismissed. Reasons need not address every argument advanced:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at paras.
    35, 57. We are satisfied that his reasons addressed the critical issues and have
    provided the appellant with the grounds for meaningful review.

Disposition

[23]

Accordingly, the appeal is dismissed.

Alexandra
    Hoy J.A.

C.W.
    Hourigan J.A.

B.
    Zarnett J.A.


