COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2020 ONCA 848

DATE: 20201230

DOCKET: C65015

Doherty, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Marie Codina

Appellant

Alan D. Gold and Laura Metcalfe, for the appellant

Kevin Wilson and Vanita Goela, for the respondent

Heard: October 26, 2020 by video conference

On appeal from the convictions entered by Justice Anne M.
    Molloy of the Superior Court of Justice, on November 22, 2017, after a trial by
    judge and jury.

Doherty
    J.A.:

I

overview

[1]

The appellant was convicted by a jury of four counts of providing advice
    or representation for consideration, contrary to s. 91(1) of the
Immigration
    and Refugee Protection Act, 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 7 years, with 2 years credit for
    presentence custody, yielding a net sentence of 5 years. The trial judge also ordered
    the appellant to pay restitution in the amount of $30,200.

[2]

The appellant appealed conviction and sentence. Her sentence appeal was
    heard and dismissed in December 2019. The conviction appeal was heard on
    October 26, 2020 and dismissed from the bench with reasons to follow.

II

the evidence

[3]

The relevant events occurred between the fall of 2011 and early 2014.
    The appellant is a disbarred lawyer and is not a licensed immigration
    consultant under the IRPA.

[4]

The appellant was the sole officer, director and shareholder of Codina
    International. That company provided a variety of immigration-related services
    and advice through offices in Toronto and elsewhere. Codina International had
    full and part-time employees and, from time-to-time, employed lawyers and licensed
    immigration consultants.

[5]

Persons who went to the offices of Codina International in Toronto
    seeking immigration-related assistance could potentially deal with a variety of
    people, including the appellant. Individuals who decided to retain Codina
    International, signed a retainer with Codina International only, and not with
    any individuals at Codina International. All monies paid by clients went to a
    corporate bank account under the exclusive control of the appellant.

[6]

Each of the five charges involved individuals who went to Codina
    International, seeking advice and representation in respect of immigration-related
    matters. They all ended up dealing with the appellant.

(i)

Count One

[7]

Count one charged that the appellant:

Did knowingly directly or indirectly, advise or represent, or
    offer to advise or represent  Jalil Chitizadeh and Sara Chitizadeh for
    consideration, in connection with a proceeding or application under the IRPA.

[8]

Mr. Chitizadeh, who is originally from Iran, was a permanent resident of
    Canada in 2011. He contacted Codina International and spoke to the appellant
    about bringing his daughter, Sara, and her son to Canada. Sara had made her way
    to Mexico from Iran and had been granted refugee status there. She wanted to
    come to Canada.

[9]

Mr. Chitizadeh booked an appointment at Codina International. He spoke
    with someone and explained his daughters situation. This person called the
    appellant, who joined the conversation. The appellant asked some questions and
    told Mr. Chitizadeh Sara should apply to come to Canada under the Temporary Residence
    Program (TRP), one of the many programs available through the IRPA. The
    appellant explained to Mr. Chitizadeh the TRP was the quickest way to get to
    Canada and Sara could apply for permanent residence after she was in the
    country.

[10]

Mr.
    Chitizadeh retained Codina International to make an application under the TRP. He
    paid Codina International $5,250.

[11]

In
    his discussions with the appellant, Mr. Chitizadeh explained his daughter
    feared for her safety in Mexico and may not want to wait the three months
    required for approval of the TRP application. The appellant told Mr. Chitizadeh
    if his daughter and her son came to Canada illegally, they could claim refugee
    status and any money paid to Codina International in respect of the TRP
    application could be put toward representing Sara on a refugee claim.

[12]

Sara
    and her son did not wait for the TRP application to be processed. She and her
    son came to Canada and claimed refugee status. When Sara arrived, she was given
    forms to complete by the immigration authorities. She took them to Codina
    International. The forms were completed by staff at Codina International with
    input from the appellant.

[13]

One
    of the forms prepared at Codina International contained what purported to be
    the signature of a lawyer named Sunny Vincent, affirming he had provided
    assistance in filling out the forms. Sunny Vincent testified and denied any
    involvement in completing the forms. He said the signature on the documents was
    not his signature.

[14]

Sara
    took the forms completed at Codina International to the Immigration Canada
    office. After examining the forms, the officer told Sara she was not eligible
    for refugee status in Canada because she had been granted refugee status in
    Mexico. Sara called the appellant and explained the situation. The appellant
    told her the officer was wrong and told Sara to put the officer on the phone
    with the appellant. The appellant and the officer spoke for about 10 minutes.
    Sara could hear the appellant yelling at the officer. The appellant then spoke
    to Sara again and told her to come to the office.

[15]

The
    appellant met with Sara and her father and told them they should appeal, as
    they had a very strong case. The appellant also said there were other ways Sara
    could stay in Canada. Sara and her father left. They did not return to Codina
    International.

(ii)

Count Two

[16]

Count
    two charged the appellant:

Did knowingly  directly or indirectly advise or represent or
    offer to advise or represent  Mahjub Ahmadi and Sohaila Ahmadi for
    consideration, in connection with a proceeding or application under the IRPA.

[17]

Mahjub
    and Sohaila Ahmadi are husband and wife. They wanted to bring Sohailas sister
    and family, who were living in Pakistan as refugees, to Canada.

[18]

Mahjub
    and Sohaila first met with an employee of Codina International in February 2012
    and provided pertinent information. This person told them they should make an
    application for a permit allowing her family and sister to come to Canada under
    the TRP. This person explained how long it would take to get a permit under
    this program and the probable costs.

[19]

Mahjub
    and Sohaila then spoke with the appellant over Skype. They were told the
    appellant was the head of the firm and could answer any questions they might
    have. The appellant assured them the TRP was the best option and that the
    sister and her family would be in Canada in about three months.

[20]

Mahjub
    signed a retainer agreement with Codina International. He made two payments
    totalling $6,450.

[21]

Mahjub
    gathered the documents he was told were needed to complete the forms provided
    to him at Codina International. He sent them on to Codina International. Mahjub
    heard nothing from Codina International for many months.

[22]

Eventually,
    about a year later, after various communications with persons at Codina
    International (not the appellant), Mahjub arranged a second meeting to find out
    the status of his sister-in-laws application. They met with the appellant. She
    told them she needed the rest of the retainer before the application could be
    submitted. Mahjub and the appellant discussed the status of the application.
    The appellant showed him what she said was a draft of the submissions that
    would be filed in support of the application. Mahjub noted many factual errors in
    the submissions.

[23]

The
    appellant told Mahjub there were still several documents missing from the
    application. She assured him any errors in the written submissions in support
    of the application would be corrected.

[24]

After
    this meeting, Mahjub had lost all confidence in the appellant and Codina
    International. He did not use their services any further.

(iii)

Count Three

[25]

Count
    three charged that the appellant:

Did knowingly  directly or indirectly advise or represent, or
    offered to advise or represent  Nikolaos Mouzos, Elizavet Mourtzis and Ioanna
    Mourtzis, for consideration, in connection with an application under the IRPA.

[26]

Mr.
    Nikolaos Mouzos is a Greek citizen. At the relevant time, he was visiting his
    relatives in Canada and wanted to immigrate to Canada.

[27]

Mr.
    Mouzos first went to Codina International in the summer of 2012. He was
    accompanied by his nieces, Elizavet Mourtzis and Ioanna Mourtzis. At the first
    meeting, he met with an employee of Codina International, who outlined various
    options available to him under the IRPA. A permanent resident visa was one of
    those options.

[28]

The
    appellant joined the meeting and discussed with Mr. Mouzos the options that had
    been laid out for him. She expressed confidence in either an intra-company
    transfer application, or a permanent resident visa application. Mr. Mouzos had
    been told by the first person he dealt with at Codina International that the
    appellant was a lawyer.

[29]

Mr.
    Mouzos and his nieces had a second meeting with the appellant about two weeks
    later. The intra-company transfer application was no longer an option. The
    appellant told him she was 100 per cent certain she could get him into Canada
    under the permanent resident visa program. She indicated she would supervise
    the application.

[30]

Mr.
    Mouzos signed a retainer agreement with Codina International and eventually
    made payments totalling $9,000. He also gathered documents he had been told he
    would need and left them at Codina International. Mr. Mouzos signed a document
    which purported to authorize representation by a person named Singh Uppal. Mr.
    Mouzos testified he did not realize he had signed such a document and he
    believed the appellant was his representative.

[31]

Mr.
    Mouzos and the appellant had a third meeting in February 2013. His niece, Elizavet,
    and her two daughters were with Mr. Mouzos. The daughters had learned certain information
    about the appellants criminal past. Initially, they met with a man named Kosta.
    He told them he had prepared the file. He also confirmed the appellant approved
    everything before it left the office. The meeting was tense. The daughters
    demanded the return of the funds Mr. Mouzos had paid. They also surreptitiously
    recorded the conversation.

[32]

The
    appellant joined the meeting. The conversation became heated. The appellant
    assured Mr. Mouzos and his niece and her daughters Mr. Mouzos would be approved
    as a permanent resident and that it was easy to get the required approval. She
    urged Mr. Mouzos to proceed with the application, telling him she would
    personally represent him on the application. She told him she had over 30
    years experience in the business and he should trust her.

[33]

Ultimately,
    Mr. Mouzos did not trust the appellant. Neither the appellant nor Codina
    International actually represented Mr. Mouzos on any application.

(iv)

Count Four

[34]

Count
    four charged that the appellant:

Did knowingly  directly or indirectly, advise or represent, or
    offer to advise or represent  Farhad Abdolvahabi, Sarasadat Hosseini and
    Behzad Mahmoudi, for consideration in connection with a proceeding or
    application under the IRPA.

[35]

Mr.
    Abdolvahabi resided in Canada at the relevant time. His sister-in-law,
    Sarasadat, and her husband Behzad lived in Iran. Both were professionals and
    wanted to immigrate to Canada.

[36]

Mr.
    Abdolvahabi went to Codina International seeking advice for his sister-in-law
    and her husband as to the best way to immigrate to Canada. He met with the
    appellant several times between May 2012 and January 2014. Mr. Abdolvahabi
    explained he was there on behalf of his sister-in-law and husband, who were
    interested in immigrating to Canada. Mr. Abdolvahabi recorded most of his
    conversations at Codina International so he could accurately report their
    content to his sister-in-law and her husband. Transcripts of the recordings of
    the conversations were admitted at trial.

[37]

Mr.
    Abdolvahabi retained Codina International to pursue at least two applications
    on behalf of his sister-in-law and her husband. He made payments totalling $9,100.
    No applications were ever made.

[38]

In
    the recorded conversations, the appellant addressed various options available
    to Mr. Abdolvahabis sister-in-law and her husband. She strongly recommended
    different programs, including the skilled worker program and the sponsorship
    program. The appellant also thought the sister-in-law and husband should pursue
    an application based on an intra-company transfer of employment. The appellant
    urged Mr. Abdolvahabi to proceed quickly, indicating there was nothing to worry
    about and it was all just paperwork.

[39]

The
    appellant made it clear in these conversations she would personally take
    control of any applications made on behalf of Mr. Abdolvahabis sister-in-law
    and her husband. The appellant told Mr. Abdolvahabi she would give these
    applications top priority. She also told Mr. Abdolvahabi he should deal only
    with her and not with others in the Codina International office, as they did
    not have her experience and expertise.

(v)

Count Five

[40]

Count
    five, like count four, arose out of the appellants dealings with Mr.
    Abdolvahabi. The count charged that the appellant:

Knowingly counselled Farhad Abdolvahabi to misrepresent or
    withhold facts relating to a relevant matter that could have induced an error
    in the administration of the IRPA.

[41]

The
    evidence supporting this charge came primarily from the recorded conversations
    between Mr. Abdolvahabi and the appellant, some of which were summarized in
    respect of count four. The Crown alleged the appellant counselled Mr.
    Abdolvahabi to fabricate a number of false corporate documents to be used to
    create a fictional basis for an application on behalf of the sister-in-law for
    a work permit under the intra-company transfer program. The appellant urged Mr.
    Abdolvahabi to go ahead with this application without consulting his
    sister-in-law and her husband.

[42]

Mr.
    Abdolvahabi felt uncomfortable proceeding as suggested by the appellant. He
    thought it was dishonest. Mr. Abdolvahabi discussed the matter with his
    sister-in-law. Ultimately, he told the appellant they were not interested in
    proceeding via an intra-company transfer application. Nonetheless, the
    appellant continued to push that option.

[43]

In
    the end, there were no applications made on behalf of Mr. Abdolvahabis
    sister-in-law and her husband.

[44]

The
    appellant did not testify.

III

the grounds of appeal

[45]

The
    appellant raised 11 grounds of appeal. She made the same arguments at trial, some
    of them more than once. The trial judge gave comprehensive reasons, addressing
    all of the issues raised by the appellant. We are in substantial agreement with
    her analysis and have drawn heavily on her reasons when addressing the various
    grounds of appeal.
[1]

[46]

The
    grounds of appeal can be broken down into two categories. Three of the
    arguments challenge the validity of the charges. The remaining grounds of
    appeal allege errors at trial, beginning with the failure to quash the
    indictment, moving to alleged erroneous evidentiary rulings, and culminating in
    submissions challenging several aspects of the jury instructions.

A.

the validity of the charges

(i)

Did the officers of the Canadian Border Services Agency (the CBSA) have
    jurisdiction to arrest and detain the appellant?

[47]

The
    appellant, who represented herself at trial, argued the CBSA officers had no
    statutory authority to arrest and detain her. The argument is repeated in the
    appellants factum, but counsel on appeal did not make any oral submissions in
    support of this ground of appeal.

[48]

I
    would reject the argument for two reasons. First, the authority of the CBSA
    officers to lay the charges and arrest the appellant had no effect on the
    jurisdiction of the Superior Court to try the offences contained in the
    indictment. The trial proceeded on charges contained in an indictment preferred
    under s. 577 of the
Criminal Code
. As the trial judge explained in one
    of her rulings, the definition of Attorney General in s. 2 of the
Criminal
    Code
effectively included the Director of Public Prosecutions by virtue of
    the provisions of the
Director of Public Prosecutions Act
, SC 206, c.
    9, s. 121:
R. v. Codina No. 2
, at paras. 21-24. The authority to
    prefer the indictment and prosecute the charges in the indictment came from the
Criminal Code
. That authority did not depend on, and was unaffected
    by, the power of the CBSA officers to lay charges and arrest the appellant.

[49]

The
    only way the authority of the CBSA officers to charge and arrest the appellant
    could be relevant to the authority of the Superior Court to proceed to trial on
    the indictment would be if the conduct of those officers justified a stay of
    proceedings under either s. 24(1) of the
Charter
, or under the common
    law abuse of process doctrine. Counsel for the appellant, correctly in my view,
    does not suggest either remedy was available in this case.

[50]

Second,
    even if the authority of the CBSA officers had some relevance to the validity
    of the indictment, I accept the trial judges analysis of the relevant
    legislation. The officers had the requisite statutory authority:
R. v.
    Codina No. 1
, at paras. 16-35. The trial judge did make one minor error,
    confusing the French and English versions of one of the many relevant statutory
    provisions. That error had no effect on her analysis:
R. v. Codina No. 1
,
    at paras. 29-31.

(ii)

Is s. 91(1) of the IRPA
ultra vires
the federal government?

[51]

Section
    91(1) of the IRPA creates a prohibition against representing or advising, or
    offering to represent or advise, persons in connection with proceedings or
    applications under the IRPA. The prohibition applies only if the representation
    or advice is given for consideration. The section reads:

Subject to this section, no person shall knowingly, directly or
    indirectly, represent or advise a person for consideration  or offer to do so
     in conjunction with the submission of an expression of interest under
    subsection 101(3) or a proceeding or application under this Act.

[52]

Sections
    91(2)(3), (4) and (5) set out categories of persons, organizations or other
    entities excluded from the prohibition created by s. 91(1). Lawyers and their
    articling students, entities who have entered into an agreement with the Crown,
    or members of an organization designated by the Minister, are permitted to give
    advice and provide representation for consideration.

[53]

The
    appellant submits s. 91(1) relates exclusively to the regulation of the
    business of providing legal advice. The appellant argues this matter is under
    the exclusive jurisdiction of the provincial government pursuant to s. 92(13)
    of the
Constitution Act, 1867
(property and civil rights).

[54]

I
    do not accept this characterization of s. 91(1). The section must be examined
    in the context of the entire
Act
. The IRPA provides a wide variety of
    applications and proceedings relating to various benefits, programs and powers
    under the IRPA. Many of the individuals seeking access to the programs and
    benefits under the IRPA cannot navigate the complexities of the IRPA without professional
    assistance. Section 91 identifies those persons and other entities who can
    provide advice or representation in connection with applications and
    proceedings under the IRPA in exchange for money. By limiting those entitled to
    be paid for advice or representation to those who by virtue of their
    profession, agreement with the Crown, or designation by the Minister, are
    subject to ongoing oversight and control, s. 91 protects those persons in need
    of that advice and representation from incompetent and/or dishonest representation.
    In doing so, s. 91 enhances the overall integrity of the IRPA, thereby
    promoting the purposes underlying the legislation.

[55]

No
    one argues the various proceedings or applications provided for under the IRPA
    are beyond the constitutional powers of the federal government under either s.
    91(25) of the
Constitution Act, 1867
(naturalization and aliens), or
    s. 95 of the
Constitution Act, 1867
. It follows, in my view, s. 91,
    which regulates one feature of the process relating to those applications and
    proceedings, is equally within the federal constitutional power:
R. v.
    Codina No. 1
, at paras. 47-48.

[56]

The
    appellant points out s. 91 is limited to the providing of advice or
    representation for consideration. She submits that if the purpose of the
    section was to protect individuals from incompetent or dishonest advice, it
    would not be limited to advice provided for consideration. The appellant
    further submits s. 91 does not speak to the competence of the advice or representation
    provided in any given case. Once again, she submits this feature of the
    legislation is inconsistent with legislation designed to protect those seeking
    the services and enhance the integrity of the legislation.

[57]

Contrary
    to the appellants submissions, I think s. 91 is very much concerned with the
    competence and honesty of those providing advice or representation for money. By
    limiting those who can provide that advice and representation to members of the
    legal profession, and persons who are effectively pre-approved by the Crown or
    the Minister, s. 91 provides supervision and control over anyone authorized to provide
    advice and representation. That supervision and control will enhance the
    quality of the service provided. In addition, s. 91 also provides for ongoing
    supervision and control by law societies and the government by those in the
    business of providing advice and representation in respect of the IRPA: see
    IRPA, s. 91(5.1), (6).

[58]

Nor
    in my view does the limitation of s. 91 to advice or representation given for
    compensation affect the constitutionality of the section. Parliament was
    entitled to conclude the concerns associated with incompetent and dishonest
    representation or advice arose in the context of those who were seeking to be
    paid for that representation, and not in cases involving friends, family
    members or Good Samaritans seeking to assist those attempting to access the
    various programs and benefits available under the IRPA.

[59]

The
    Crown also argues s. 91 is valid federal legislation under the criminal law
    power in s. 91(27) of the
Constitution Act, 1867
. The trial judge agreed:
R. v. Codina No. 1
, at para. 48.

[60]

A
    law is a valid exercise of the criminal law power if that law:

·

creates a prohibition;

·

provides for a penalty if the prohibition is breached; and

·

is backed by a valid criminal law purpose: see
Reference re
    Genetic Non-Discrimination Act
, 2020 SCC 17, at paras. 67-69.

[61]

The
    first two criteria are not in issue. Section 91 creates a prohibition and
    provides for a penalty: IRPA, s. 91(1), (9).

[62]

The
    third criterion, a valid criminal law purpose, is also made out. As the legislative
    history, which the trial judge referred to in various rulings, makes clear s.
    91 was introduced in response to the dishonest and criminally fraudulent
    conduct of persons who were taking money in exchange for advising or
    representing individuals in IRPA-related matters. The title of Bill C-35,
The
    Cracking Down on Crooked Consultants Act
, makes the purpose crystal clear:
    see
R. v. Codina No. 6
, at paras. 25-34.

[63]

By
    regulating those who could give advice and provide representation for money,
    Parliament sought, among other things, to prevent the fraud and dishonesty which
    had become prevalent when immigration consultants were not regulated. The
    activity targeted by the legislation engaged the governments legitimate interest
    in protecting individuals, particularly highly vulnerable individuals, from
    dishonest commercial practices. The legislation also sought to protect the
    integrity of the immigration system, a central feature of Canadian public law.
    Both purposes are valid criminal law purposes. Section 91 falls squarely within
    the criminal law power.

[64]

The
    determination the legislation is valid federal legislation ends the
vires
analysis. As the trial judge observed, there was no evidence before her that s.
    91 of the IRPA conflicted with any provincial legislation:
R. v. Codina No.
    1
, at para. 49.

(iii)

Are s. 91(1) and s. 126 of the IRPA contrary to s. 7 of the
Charter
?

[65]

In
    her factum, the appellant refers to the concepts of vagueness and overbreadth,
    both principles of fundamental justice under s. 7 of the
Charter
. As s.
    91 and s. 126 both create offences punishable by imprisonment, they are subject
    to constitutional scrutiny under s. 7.

[66]

At
    trial, the appellant argued the language of s. 91 and s. 126 of the IRPA should
    be interpreted in a manner consistent with the concerns animating the
    principles of vagueness and overbreadth:
R. v. Codina No. 1
, paras. 52-56.
    This is an argument directed at the statutory interpretation of those
    provisions and not their constitutionality.

[67]

There
    is no merit to the overbreadth argument. The language in s. 91 and s. 126 is
    broad, but justifiably so, given the purpose of the legislation. The
    legislation was enacted in response to concerns that those seeking access to
    various programs and proceedings under the IRPA were being financially
    exploited by dishonest and incompetent persons describing themselves as
    immigration consultants. Individuals seeking access to various programs under
    the IRPA were often in particularly vulnerable situations, making them easy
    prey for fraudsters and fakers. The legislation aimed to drive those persons
    out of the business:
R. v. Codina No. 6
, at paras. 25-34. The language
    of the legislation had to be sufficiently broad to capture the various
    circumstances in which, and the various methods by which, the requisite advice
    or representation may be offered or provided. The appellant points to nothing
    in the language of the challenged sections to support the contention Parliament
    overshot its object.

[68]

The
    vagueness argument seeks to equate vagueness as a principle of fundamental
    justice with language in an offence-creating provision that describes different
    ways of committing the same offence. An offence-creating provision is vague for
    constitutional purposes if it does not provide an accused with fair notice of
    the proscribed conduct. A provision which clearly articulates different ways in
    which an offence may be committed provides fair notice of the proscribed
    conduct, in the same way that several offences each dealing with one way of
    committing the proscribed conduct would provide fair notice. Any claim the
    language of s. 91, or s. 126, does not permit an interpretation delineating the
    scope of the prohibited conduct in a manner that provides an accused with fair
    notice of the nature of the prohibited conduct is belied by the trial judges
    careful instructions to the jury on the elements of the offences: see
R. v.
    Levkovic
, [2013] 2 S.C.R. 204, at paras. 10, 32-37;
R. v. Mabior
,
    2012 SCC 47, at para. 14.

B.

the alleged errors at trial

(i)

Did the indictment comply with the pleadings requirements of the
Criminal
    Code
?

[69]

The
    appellant moved to quash all five counts in the indictment. She argued they did
    not comply with s. 581(1) in that each count did not allege a single offence,
    and was not limited to a single transaction. The appellant also contended the
    charges were void for non-compliance with s. 581(3). She maintained each count
    failed to provide sufficient detail of the circumstances of the alleged offence
    to allow her to identify the transaction referred to in the charge. The trial judge
    rejected these arguments:
R. v. Codina No. 2
, at paras. 26-31.

[70]

Section
    590(1) declares a count in an indictment may charge alternative ways of
    committing an offence, and in doing so, may allege different acts or omissions
    said to constitute the offence without running afoul of the single
    transaction requirement in s. 581(1):
R. v. Codina No. 2
, at para.
    31. The language used in counts one to four in the indictment tracks the
    statutory language in s. 91. That section creates a single offence. The language
    of each count in the indictment, considered in combination with the disclosure
    and particulars provided, describes a single transaction referable to the
    particular complainants dealings with the appellant and Codina International.
    The trial judge correctly concluded the charges complied with s. 581(1).

[71]

The
    appellants argument based on s. 581(3) was limited on appeal to the charge in
    count five. That charge alleged the appellant knowingly counselled the named
    complainant to misrepresent or withhold facts relating to a matter that could
    induce an error in the administration of the IRPA. The appellant argues the
    count as framed does not provide sufficient detail to permit a proper defence.

[72]

In
    considering whether a charge contains sufficient information, a trial judge may
    look, not only at the language of the charge, but also any additional
    information provided to an accused by way of disclosure or through evidence at
    the preliminary inquiry:
R. v. Robinson
(2001), 153 C.C.C. (3d) 398
    (Ont. C.A.), at para. 23. The appellant had full disclosure and a preliminary
    inquiry. That disclosure included transcripts of virtually all of the
    conversations between the appellant and Mr. Abdolvahabi. Those conversations
    contained the
actus reus
of the offence alleged in count five. It is difficult
    to imagine how the appellant could have had more detail relating to the
    circumstances of the offence alleged in count five.

[73]

The
    trial judge properly concluded all of the counts complied with the pleading
    requirements of the
Criminal Code
.

(ii)

Did the trial judge err in holding the appellants acquittal on an
    unrelated charge under s. 91 of the IRPA was irrelevant at the appellants
    trial?

[74]

The
    appellant was acquitted on a charge under s. 91 of the IRPA in Québec in 2015:
Barreau
    du Montreal v. Codina
, 2015 QCCQ 5833. At trial, the appellant argued the
    judgment in the Québec proceeding should be admitted as evidence she believed
    she was acting lawfully in the course of the dealings giving rise to the
    charges. The trial judge held the acquittal had no relevance to any issue
    before the jury:
R. v. Codina No. 6
, at paras. 44-45, 63-65.

[75]

I
    agree with the trial judge for two reasons. First, the judgment in the Québec
    case was released in June 2015. The events underlying these charges took place
    before June 2015. The Québec judgment, which came after those events, could not
    have impacted on the appellants state of mind at the relevant time.

[76]

Second,
    as the trial judge observed, the acquittal in the Québec case was predicated on
    the evidence adduced in that case and the trial judges findings of fact. The
    verdict did not, and could not, speak to the evidence adduced at this trial or
    the facts as found by the jury on that evidence.

[77]

The
    acquittal of the appellant on the charge in Québec could not help the jury in
    assessing her liability on the charges in the indictment.

(iii)

Did the trial judge err in excluding evidence of the corporate
    organization and operation of Codina International?

[78]

The
    appellant submits the trial judge excluded evidence that would support the
    appellants contention any advice or representation provided by her to any of
    the complainants was, in fact, offered and provided by the corporate entity,
    Codina International, and not by the appellant in any personal capacity. The
    appellant submits the trial judge should have permitted evidence demonstrating
    Codina International was structured and operated in a manner intended to ensure
    that any assistance given, or representation provided, came ultimately from
    persons who were authorized under the IRPA to provide that advice or
    representation.

[79]

The
    jury heard a great deal of evidence about the operation of Codina International
    and its employment of various individuals, some of whom were qualified to give
    advice or provide representation under s. 91. The trial judge, however, appreciated
    that the operation of Codina International was not the focus of the trial. The
    appellants liability turned on what she did and said in respect of the events
    giving rise to the charges. If she gave advice, she was responsible for that
    conduct, regardless of how her company was structured or organized its
    business.

[80]

As
    a matter of law, if the appellant offered advice or provided representation, it
    was irrelevant to her liability that others operating within Codina
    International were also providing advice or representation. It was equally
    irrelevant that the appellant purported to give advice or provide
    representation in her capacity as a spokesperson, officer or employee of Codina
    International. The corporate veil offers no protection from personal criminal responsibility
    for ones own conduct:
R. v. Fell
(1981), 64 C.C.C. (2d) 456, at
    461-62 (Ont. C.A);
R. v. Meer
, 2015 ABCA 340, at para. 61.

[81]

The
    trial judge accurately described the appellants potential liability in her
    instructions to the jury:

In this case, the Crown does
not
allege that Ms. Codina is criminally responsible for advice provided by Codina
    International through any of its agents or employees other than Ms. Codina. A
    corporation cannot be licensed as a lawyer, nor can it be registered as a
    licensed immigration consultant under the ICCRC. There is also no legal
    requirement that a corporation whose employees provide immigration
    representation and advice must be owned by a person who is licensed. A
    corporation is a separate legal entity, but it cannot itself give advice. The
    advice is given by human beings, and those human beings are individually
    responsible for such advice. Thus, the conduct subject to this charge is the
    conduct of Ms. Codina herself. The issue is whether she personally provided
    advice. The fact that other employees gave advice is irrelevant. Likewise, it
    is not relevant that there may have been lawyers or licensed immigration
    consultants involved in the firm, or even performing work on a particular file.
    More than one person can provide advice on a matter. Further, one person could
    give advice even if another person in the firm is designated as a representative
    on documents filed with Canada Immigration. The issue for you to decide is
    whether Ms. Codina personally gave advice, not whether anyone else at Codina
    International did. [Emphasis in original.]

[82]

At
    various points in the evidence, the trial judge stopped the appellant from
    questioning witnesses about the general operation of Codina International, and
    the responsibilities of various individuals. These rulings did not prevent the
    appellant from questioning witnesses about the circumstances relevant to any of
    the charges. The trial judge properly permitted some background narrative
    describing the operation of Codina International, but required the parties to
    focus on the events actually relevant to the charges. She made no error.

(iv)

Did the trial judge err in failing to instruct the jury that the
    consideration for advice or representation prohibited by s. 91(1) had to be
    provided directly to the appellant?

[83]

The
    appellant contends the prohibition in s. 91 applies only where the
    consideration is provided to the actual provider of the advice or
    representation. That claim finds no footing in the language of s. 91.

[84]

Section
    91 prohibits offering advice or providing representation for consideration. The
    section says nothing about the identity of the recipient of the consideration. Indeed,
    it does not require that consideration actually be received by anybody.

[85]

Not
    only is the appellants submission unsupported by the language of s. 91, that
    interpretation of the legislation would create an obvious and gaping loophole
    rendering the prohibition in s. 91 ineffective. The harm targeted by s. 91
    exists regardless of the identity of the recipient of the consideration.

[86]

The
    appellant submits it is unfair to hold the appellant liable for her personal
    acts even if done in the course of the operation of Codina International, while
    at the same time imposing liability based on consideration paid only to Codina
    International. I fail to see any unfairness. If the appellant engaged in the
    conduct prohibited by s. 91, and directed the payment of the consideration
    elsewhere, she remains equally responsible for her actions. In any event, it
    stretches credulity to find any unfairness here. The money went into a bank
    account totally controlled by the appellant. Clearly, she benefited directly
    from the consideration paid.

(v)

Did the trial judge misdirect the jury on the meaning of the words
    proceeding or application in s. 91 of the IRPA?

[87]

Section
    91 prohibits providing representation or giving advice for consideration in
    connection witha proceeding or application under the Act. The trial judge
    instructed the jury the prohibition included representation or advice in
    respect of a potential proceeding or application under the
Act
.

[88]

The
    appellant submits s. 91 operates only where there is an actual proceeding under
    way or application made. She refers to other unrelated federal statutes which
    use phrases like proposed proceeding. The appellant contends that is the kind
    of language required to warrant the interpretation of s. 91 given by the trial
    judge.

[89]

The
    same argument was made before the trial judge. She rejected it and I adopt her
    analysis:
R. v. Codina No. 6
, at para. 62. She said, in part:

Ms. Codina argued that there could be no offence under s. 91(1)
    unless an application or proceeding was actually commenced under the IRPA.
    There is no merit or logic to that proposition. The section is meant to apply
    to persons who give advice or represent or offer to represent a person in
    connection with a proceeding under the IRPA. To require that such an
    application actually be commenced before the offence provision is triggered,
    would not only be contrary to the plain meaning of the words used, it would
    undermine the intent of the legislation. If Ms. Codina is correct, unlicensed
    individuals could give advice and offer to represent people and collect
    substantial amounts of money for their services, and then avoid prosecution
    merely by not commencing the application for which they were paid. The plain
    meaning of these words is that the advice or representation must relate to
    something that could be a proceeding or application under the IRPA if it
    proceeded, as opposed to advice about some unrelated matter.

(vi)

Did the trial judge misdirect the jury on the elements of the offence
    under s. 126 of the IRPA and/or the evidence relevant to that count?

[90]

The
    relevant portions of s. 126 of the IRPA provide:

Every person who knowingly counselsany person to
    directly or indirectly misrepresentmaterial facts relating to a relevant
    matter that induces or could induce an error in the administration of this Act
    is guilty of an offence.

[91]

The
    appellant submits the trial judge improperly extended the reach of s. 126 to
    suggestions made by the appellant in the course of discussions with Mr. Abdolvahabi.
    The appellant submits mere proposals or suggestions lacking any element of
    encouragement or active inducement cannot constitute the
actus reus
of
    counseling:
R. v. Hamilton
, 2005 SCC 46, at para. 29.

[92]

As
    I read the jury instructions, the trial judge defined counseling in a manner
    that is entirely consistent with the appellants submission. She told the jury:

There are several ways in which one person may counsel another
    to commit a crime. Counsel means to advise or recommend a particular course
    of conduct. Counsel also includes to procure, solicit or incite. To advise
    or recommend a course of conduct involves more than a mere comment, suggestion
    or expression of an idea.  It requires an actual recommendation to do the thing
    suggestedIn short, counselling is the active encouragement or active
    commission of the offence in question (in this case material
    misrepresentation).

[93]

In
    her factum, the appellant focuses on the trial judges references to proposed
    misrepresentations in the course of reviewing the evidence on Count 5. These
    references are no more than a description of the evidence. On the evidence, the
    appellant did propose various misrepresentations. The word proposed as used
    by the trial judge is a neutral word. A proposal may or may not amount to
    counselling as defined by the trial judge. The use of that word did not detract
    from the trial judges clear instructions on the meaning of the word counsel and
    did not steer the jury toward a finding of guilt on count five.

[94]

There
    is no merit to the appellants argument the trial judge selectively reviewed
    the relevant evidence to favour the Crown or misrepresented the substance of
    the evidence. The plain fact is that the evidence, most of which came from the
    tape-recorded conversations between the appellant and Mr. Abdolvahabi, revealed
    a powerful case against the appellant.

(vii)

Did the trial judge misdirect the jury on the meaning of the word
    advice in s. 91(1) of the IRPA?

[95]

The
    trial judge drew a distinction between providing information about the
    operation of the IRPA, a persons rights under that
Act
, and programs
    available under the
Act
, and giving a particularized recommendation as
    to the steps or representations a specific person should take or make in
    relation to proceedings or applications under the IRPA. Only the latter
    constituted advice for the purposes of s. 91:
R. v. Codina No. 6
, at
    paras. 42-48. The trial judges instructions to the jury repeatedly reflect
    this distinction.

[96]

The
    trial judge correctly limited the meaning of the word advice in s. 91. The
    distinction she drew between advice and information is consistent with the
    everyday meaning of the word advice, related case law, and properly limits
    the reach of s. 91 to accord with its underlying purpose.

(viii)

Did the trial judge err in failing to put mistake of fact to the jury?

[97]

At
    trial, the appellant argued she was entitled to be acquitted if the Crown did
    not prove she knew what she was doing was an offence under s. 91(1). In
    advancing this position, the appellant relied on the use of the word
    knowingly in s 91(1). The appellant attempted to put this argument before the
    jury in various ways at trial.

[98]

The
    trial judge characterized the appellants argument as raising an alleged error
    in law and not any factual mistake. She effectively took this defence away
    from the jury in her closing instructions. After telling the jury ignorance of
    the law provided no excuse, she went on:

It does not matter whether Ms. Codina believed that she had
    structured things with Codina International in such a way so that she would not
    be guilty of any offence. Neither does it matter what Ms. Codina may or may not
    have believed about what, in law, constitutes the giving of advice or the
    receipt of consideration. Knowledge in this context has absolutely nothing to
    do with what Ms. Codinas state of knowledge or belief may have been about the
    law.

[99]

In
    this court, counsels argument focused on the submission Ms. Codina was
    entitled to be acquitted if she honestly believed she was conveying only
    information about matters relevant to the IRPA and not giving advice. In other
    words, Ms. Codina argued that she was entitled to have her guilt determined
    based on her understanding of what did or did not amount to giving advice.

[100]

The meaning to be
    given to words in a statute is a question of law. For example, the meaning of
    the word consent in the
Criminal Code
is a question of law. A
    mistake by an accused as to the meaning of consent is no defence to a charge of
    assault: see
R. v. Barton
, 2019 SCC 33, at paras. 95-97; see also
R.
    v. MacDonald
, 2014 SCR 59, at paras. 54-61;
R. v. Zora
, 2020 SCC
    14, at para. 114. The appellant purported to advance a mistake of law defence.

[101]

Characterizing the
    appellants mistake as to the meaning of the word advise in s. 91 as an error
    in law does not necessarily mean that error could not provide a defence.
    Parliament can and has recognized defences predicated, at least in part, on an error
    in law. The colour of right defence to theft found in s. 322 of the
Criminal
    Code
is perhaps the best example: see
R. v. Dorosh
(2004), 183
    C.C.C. (3d) 224, at paras. 14-20 (Sask. C.A.). However, when searching
    statutory language for a mistake of law-based defence, one must begin with s.
    19 of the
Criminal Code
. That section declares ignorance of the law is
    not an excuse for committing an offence. It takes very clear language, e.g.
    colour of right, to depart from the principle set down in s. 19. The use of
    the word knowingly, a common
mens rea
word, in s. 91 of the IRPA
    does not signal Parliaments intention to create a defence based on an
    accuseds individual understanding of the meaning of the language of the
    section. As observed in
Barton
,
supra
, at para. 96, an
    accused is not entitled to their own law.

IV

conclusion

[102]

As indicated at the
    end of oral argument, the appeal is dismissed.

Released: D.D.        DEC 30 2020

Doherty J.A.

I agree. C.W. Hourigan
    J.A.

I agree. G. Pardu
    J.A.

[1]

The rulings are reported at:
R.
    v. Codina No. 1
, 2017 ONSC 7162;
R. v.
    Codina No. 2
, 2017 ONSC 7236;
R. v. Codina No.
    3
, 2017 ONSC 7561;
R. v. Codina No. 4
, 2017 ONSC 7315;
R. v. Codina No. 5
, 2017 ONSC 7323;
R. v. Codina No. 6
, 2017 ONSC 7648;
R. v. Codina No. 7
, 2018 ONSC 1096.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached
to
    the file:

An order restricting publication in this
    proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.5 (1)     Unless an order is
    made under section 486.4, on application of the prosecutor in respect of a
    victim or a witness, or on application of a victim or a witness, a judge or
    justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is of the opinion that the order
    is in the interest of the proper administration of justice.

(2)     On application of the
    prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes
    of subsection (2) are

(a) an offence under section
    423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for
    the benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection
    16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information
    Act
; or

(d) an offence under subsection
    21(1) or section 23 of the
Security of Information Act
that is committed
    in relation to an offence referred to in paragraph (c).

(3)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)     An applicant for an order
    shall

(a) apply in writing to the
    presiding judge or justice or, if the judge or justice has not been determined,
    to a judge of a superior court of criminal jurisdiction in the judicial
    district where the proceedings will take place; and

(b) provide notice of the
    application to the prosecutor, the accused and any other person affected by the
    order that the judge or justice specifies.

(5)     An applicant for an order
    shall set out the grounds on which the applicant relies to establish that the
    order is necessary for the proper administration of justice.

(6)     The judge or justice may
    hold a hearing to determine whether an order should be made, and the hearing
    may be in private.

(7)     In determining whether to
    make an order, the judge or justice shall consider

(a) the right to a fair and
    public hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness
    or justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in
    encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed
    order on the freedom of
expression
of those affected by it; and

(h) any other factor that the
    judge or justice considers relevant.

(8)     An order may be subject to
    any conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other information that
    could identify the person to whom the application relates as a victim, witness
    or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
    order referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cook, 2020 ONCA 809

DATE: 20201216

DOCKET: C66497

Strathy C.J.O., Rouleau and
    Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Arthur Cook

Appellant

Paul Calarco, for the appellant

Katie Doherty, for the respondent

Heard: November 24, 2020 by
    video conference

On
    appeal from the sentence imposed on March 22, 2017 by Justice Brian P. OMarra
    of the Superior Court of Justice, with reasons reported at 2017 ONSC 1434.

REASONS FOR DECISION

Overview

[1]

Following the convictions for offences related to criminal harassment of
    the victim, K.H., the appellant was found to be a dangerous offender under s. 753
    of the
Criminal Code
, R.S.C. 1985, c. C-46. He appeals against the
    dangerous offender designation and the mandatory victim fine surcharge that formed
    part of the sentence. For the reasons that follow, the appeal against the
    dangerous offender designation is dismissed. However, on consent, we would
    allow the sentence appeal with respect to the imposition of the victim fine
    surcharge and set it aside as a result of the Supreme Court of Canadas
    decision in
R. v. Boudreault
, 2018 SCC 58, [2018] 3 S.C.R. 599.

Background

[2]

The appellant met the victim in December 2010 when they were working at
    the same bookstore. According to the victim, the appellant had not disclosed
    that he was on parole and subject to a Long-Term Supervision Order (LTSO)
    before they started their relationship. That LTSO had been imposed in 2006 when
    the appellant was convicted of criminal harassment and threatening in relation
    to his sister and stepfather. The appellant eventually disclosed that he was on
    parole and constantly urged the victim  for example, by leaving her many text
    and voicemail messages  to speak to his parole officer and paint their
    relationship in a positive light. The appellant became obsessive and constantly
    phoned the victim and showed up at various public places unannounced to ask her
    about the conversations that she had with his parole officer. At one point, the
    appellant threatened to have her fired from her job if she did not portray him
    positively. By February 2011, the appellant was coming to her home uninvited
    and, during one heated argument, he poured water over all of the electronic
    devices that she owned. The victim finally went to the police in March 2011.

[3]

The appellant was charged with two counts of criminal harassment, and
    one count of committing mischief, extortion and breaching the LTSO. The jury
    convicted the appellant of criminal harassment and committing mischief to
    property but acquitted him of the extortion charge. The parties agreed that the
    evidence led at the jury trial would form the basis of the Crowns case in
    relation to a single charge of breaching the 2006 LTSO, which had been severed
    from the counts that proceeded with the jury. The same judge who presided over
    the jury trial heard the trial and convicted the appellant of breaching the
    LTSO.

[4]

Following the conviction, the Crown applied to have the appellant
    declared a dangerous offender pursuant to s. 753. That hearing was significantly
    delayed. By the time it was scheduled to be heard, the victim had advised the
    Crown that she no longer wished to participate in the proceeding, and she did
    not return any of the messages left for her by the police or the Crown.
    Nevertheless, the Crown sought to rely on her victim impact statement that had
    been filed at the beginning of the proceeding. Defence counsel argued that since
    he was unable to cross-examine the victim on the contents of the statement the
    sentencing judge could place no weight on the statement, which was hearsay and
    unreliable. The sentencing judge disagreed and relied on the statement.

[5]

The sentencing judge was satisfied that the appellants criminal
    harassment convictions were serious personal injury offences pursuant to s. 752(a)(ii).
    He was also satisfied that the appellant met the criteria for a dangerous
    offender designation because the appellants pattern of conduct showed a
    failure to restrain his behaviour and a likelihood that he would cause severe
    psychological damage in the future (s. 753(1)(a)(i)) and, alternatively, that
    his conduct over the years with various female partners constituted persistent
    aggressive behaviour pursuant to s. 753(1)(a)(ii)).

Grounds of Appeal

[6]

The appellant advances three submissions on the appeal against the
    designation.

[7]

First, the sentencing judge erred by relying on the victim impact
    statement without permitting defence counsel to cross-examine the victim.

[8]

Second, the sentencing judge erred in his application of s. 752(a)(ii)
    because, according to the appellant, an inquiry into severe psychological
    damage demands an objective assessment of the accuseds conduct, not just the
    victims reactions to that conduct. According to the appellant, the sentencing
    judge did not assess the objective seriousness of the appellants conduct.

[9]

Third, the sentencing judge erred in his conclusion that the appellants
    pattern of behaviour meant that he would likely inflict severe psychological
    damage in the future.

Discussion

(1)

The Sentencing Judges Reliance on the Victim
    Impact Statement

[10]

The
    appellant contends that the sentencing judge should have allowed
    cross-examination on the victim impact statement before relying on it. He
    submits that cross-examination was necessary to properly assess the victims
    suggestion in her statement that the appellants conduct had caused a total
    change in her life. There were other stressors in the victims life, unrelated
    to the appellant and the four days of harassment that formed the basis for the charges.
    For example, it was not disputed that the victims life had been affected by
    coping with her mother, who was terminally ill. The appellant submits that it
    was unfair for the sentencing judge not to permit cross-examination on the
    statement so that defence counsel could explore whether it really was the
    specific impact of the appellants conduct on the victims life that had the
    impact described in the statement. We disagree with this submission.

[11]

The
    sentencing judge noted that s. 722 of the
Criminal Code
provides that a
    victim impact statement shall be received by the court and may be presented in
    various ways. He also recognized that there is no automatic or open-ended right
    to insist that victims attend for cross-examination any time the Crown files
    such a statement:
R. v. V.W.
, 2008 ONCA 55, 89 O.R. (3d) 323, at
    paras. 28-30.

[12]

The
    reality is that by the time this proceeding started, police efforts to locate the
    victim were unsuccessful. The Crown and the police had made efforts to remain
    in contact with the victim, but she had advised the Crown that she no longer
    wished to participate in the proceedings. It appears to have been accepted that
    the victim could not be produced for cross-examination. Defence counsels
    argument before the sentencing judge was that the statement had to be admitted
    but, in the absence of the victim, the statement should not be relied upon
    because its reliability could not be tested. In our view, it was open to the
    sentencing judge to consider the absence of the victim, but to find that he
    could rely on the statement and give to it whatever weight he thought it
    deserved. We see no basis to interfere with his decision.

[13]

In
    any event, it is apparent to us that the statement played a limited role in the
    sentencing judges decision. As the sentencing judge noted during submissions
    and in his reasons, the evidence of the impact of the appellants conduct on
    the victim was not limited to what was disclosed by the statement. He noted
    that the victim had been extensively cross-examined at trial and that the
    significant impact of the events on her personal and work life was manifest
    from her testimony. Even if it was an error to rely on the statement without further
    exploring whether she could be produced for cross-examination, this error
    occasioned no prejudice to the appellant because the sentencing judges
    determination was fully supported by the victims testimony at trial, testimony
    that was tested through cross-examination.

[14]

The
    appellant also submits that the sentencing judge should have restricted his
    reliance on the victim impact statement to just those parts related to the
    narrow time period of four days that formed the basis of the criminal
    harassment charges. He argues that the victim impact statement did not
    distinguish between events related to those charges and events related to the
    charge of extortion, which took place over the longer time period of January to
    March. Since the jury acquitted the appellant of extortion, the victims
    account of events pertaining to that charge over the longer time period should
    not have been relied upon. We reject this submission.

[15]

During
    a dangerous offender application under s. 753, access to the widest possible
    information is important:
R. v. Williams
, 2018 ONCA 437, at para. 48. In
    our view, the sentencing judge was required to examine not only the conduct of
    the appellant and impact that it had on the victim over the four days, but also
    the surrounding circumstances, which included their entire relationship and the
    time period from January to March.

(2)

The Sentencing Judges Application of s. 752(a)(ii)

[16]

The
    appellants second argument is that the sentencing judge erred in his
    application of s. 752(a)(ii). The first threshold question in any dangerous
    offender proceeding is whether the offender has committed a serious personal
    injury offence, which is defined in s. 752 of the
Criminal Code
to
    mean:

(a) an indictable offence, other
    than high treason, treason, first degree murder or second degree murder,
    involving

(i) the use or attempted use of
    violence against another person, or

(ii) conduct endangering or likely
    to endanger the life or safety of another person or
inflicting
    or likely to inflict severe psychological damage upon another person
,

and for which the offender may be
    sentenced to imprisonment for ten years or more, or

(b) an
    offence or attempt to commit an offence mentioned in section 271 (sexual
    assault), 272 (sexual assault with a weapon, threats to a third party or
    causing bodily harm) or 273 (aggravated sexual assault) [Emphasis added.]

[17]

In
    this case, the offence of criminal harassment could have met the definition if
    it involved conduct inflicting or likely to inflict severe psychological damage
    on another person.

[18]

The
    appellant argues that the sentencing judges finding that he had inflicted
    severe psychological damage on the victim cannot stand because he did not apply
    an objective assessment to the appellants conduct and he made no finding that
    the appellants conduct was reasonably capable of inflicting such damage. According
    to the appellant, the sentencing judge improperly focused only on the victims
    reactions to the appellants conduct. The appellant relies on this courts
    comments in
R. v. Morgan
(2005), 195 C.C.C. (3d) 408 (Ont. C.A.),
    leave to appeal refused, [2005] S.C.C.A. No. 247, and a trial decision of
    Karakatsanis J. (as she then was) in
R. v. Tremblay
, 2010 ONSC 486. We
    disagree with this submission.

[19]

First,
    we note that a plain reading of s. 752(a)(ii) does not suggest that the judge
    is required to undertake an objective assessment of the conduct of the
    offender. We agree with the respondents submission that Parliament appears to
    have limited the conduct captured by this section by reference to the impact,
    or potential impact, of an offenders conduct on the victim.

[20]

Second,
    in our view, neither
Morgan
nor
Tremblay
assists the
    appellant. In
Morgan
, this court confirmed that to qualify as a
    serious personal injury offence under s. 752(a)(ii), the conduct of the
    offender must be such that it was "inflicting or likely to inflict severe
    psychological damage upon another person". However, MacFarland J.A.
    pointed out that [t]rivial conduct or conduct
de minimis
would not
    meet the severity requirement: at para. 13. In
Tremblay
, Karakatsanis
    J. held that the offence of criminal harassment does not necessarily constitute
    a serious personal injury offence. She held that severe psychological damage
    acts as a threshold and must be something more than serious psychological
    harm and requires at a minimum substantial interference with the victims
    physical or psychological integrity, health or well-being: at para. 76.

[21]

The
    sentencing judge was aware of
Morgan
, having reviewed it in his
    decision. On his findings, the appellants conduct interfered significantly
    with the victims personal life and well-being and actually caused severe
    psychological damage to the victim. His specific findings regarding the
    appellants conduct placed it well beyond trivial or
de minimis
conduct as described in
Morgan
and are consistent with
Tremblay
in that the appellant substantially interfered with the victims psychological
    integrity, health or well-being. We see no error in the sentencing judges
    application of s. 752(a)(ii) and his determination that the criminal
    harassment in this case was a serious personal injury offence.

(3)

The Sentencing Judges Application of s. 753(1)(a)(i) and (ii)

[22]

Finally,
    the appellant argues that the sentencing judge erred in his application of s.
    753(1)(a). Since the sentencing judge found that criminal harassment was a
    serious personal injury offence, he was required to go on to determine whether
    the appellant satisfied any of the pathways to the dangerous offender
    designation as set out in s. 753(1)(a). Two pathways are relevant to this case:

i)

a pattern of repetitive behaviour
by the
    offender, of which the offence for which he or she has been convicted forms a
    part,
showing a failure to restrain his or her behaviour and a likelihood of
causing death or injury to other persons, or
inflicting severe psychological
    damage on other persons, through failure in the future to restrain his or her
    behaviour
, [or]

ii)

a pattern of persistent aggressive behaviour
by the offender, of which the offence for which he or she has been
    convicted forms a part,
showing a substantial degree of indifference on the
    part of the offender respecting the reasonably foreseeable consequences to
    other persons
of his or her behavior [Emphasis added.]

Criminal Code
, s. 753;
R. v. Boutilier
, 2017 SCC 64, [2017] 2 S.C.R.
    936, at paras.
14, 16.

[23]

The
    appellant argues that the sentencing judge erred in reaching the conclusion
    that the appellants pattern of behaviour meant that he would likely inflict
    severe psychological damage in the future (s. 753(1)(a)(i)). The appellant
    submits that even if there was a basis to find that his conduct met the serious
    personal injury threshold, the sentencing judge failed to properly consider
    whether the pattern of behaviour by the appellant demonstrated an escalation of
    misconduct, greater violence or threats of violence. We disagree.

[24]

It
    is clear that the sentencing judge properly considered the requirements of s. 753(1)(a)(i)
    and was satisfied that they were met. The sentencing judge took into account
    the facts related to the appellants convictions for criminal harassment and
    prior convictions for similar offences, and that prior incarceration and court
    orders had not been successful in restraining the appellants behavior. Of
    significance is the fact that the appellant had committed these offences while
    bound by a LTSO. As the sentencing judge expressly noted, the appellant had, in
    the past, inflicted severe psychological harm on women in the context of
    relationships and displayed a total lack of sympathy. On the totality of the
    evidence, the sentencing judge was satisfied that the appellant had
    demonstrated a clear pattern of repetitive criminal behavior, failed to
    restrain his behavior, and would in the future likely cause severe
    psychological damage.

[25]

Although
    the appellant concedes that it was open to the sentencing judge to find that
    the conduct also met the requirements of the persistent aggressive dangerous
    offender pathway (s. 753(1)(a)(ii)), he argues that the sentencing judge
    provided very little analysis on this point. We disagree. Several of the findings
    that the sentencing judge made in relation to the s.753(1)(a)(i) pathway were
    equally applicable to this pathway. The sentencing judge concluded that the
    appellant lacked insight into the harm caused to the victims, lacked empathy
    for them, and demonstrated a substantial indifference to the reasonably
    foreseeable consequences of his behaviour on other persons. This conclusion was
    open to him. Indeed, the sentencing judge found that the appellant perceived
    himself to be the true victim of his circumstances. These conclusions must be
    read in the context of the entire decision and, in our view, there is no basis
    to interfere with them.

Disposition

[26]

For
    these reasons, we would set aside the victim fine surcharge. Otherwise, the
    appellants appeal from his dangerous offender designation is dismissed.

G.R. Strathy C.J.O.

Paul Rouleau J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cox, 2020 ONCA 820

DATE: 20201218

DOCKET: C66637

van Rensburg, Benotto and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keisha Cox

Appellant

Chris Sewrattan and Ashley Sewrattan,
    for the appellant

Maria Gaspar, for the respondent

Heard: December 4, 2020 by
    video conference

On appeal from the conviction entered on
    December 3, 2018 by Justice Jamie K. Trimble of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals her conviction for importing
    1.8 kg of cocaine. The cocaine, which was concealed in a variety of food
    products, was discovered in her suitcase as she returned to Canada from Jamaica.
    The trial judge convicted the appellant after concluding that she knew
or
was wilfully blind that her suitcase contained a controlled substance. The
    appellant argues that it was an error for the trial judge to rely on wilful
    blindness when there was no air of reality to knowledge based on wilful
    blindness in this case.

[2]

As a substitute for knowledge, wilful blindness
    requires an evidentiary basis before it can be considered by the trier of fact:
    see
R. v. Burnett
, 2018 ONCA 790, 367 C.C.C. (3d) 65, at paras.
    141-42. The Crown acknowledges that there was no air of reality to wilful
    blindness on this record. Indeed, the trial Crown relied only on actual
    knowledge in his submissions to the trial judge.

[3]

The Crown on appeal asserts that the trial
    judges repeated references to wilful blindness did not amount to an error
    because it is plain from his reasons that he was satisfied that the appellant had
    actual knowledge of the cocaine in her suitcase. The Crown invites this court
    to disregard the references to wilful blindness as superfluous and unnecessary
    language. In the alternative, if the trial judge did err, the Crown asks that
    we apply the curative proviso under s. 686(1)(b)(iii) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, to dismiss the appeal and uphold the
    conviction.

[4]

The appeal must be allowed. We are not confident
    from reading the trial judges reasons that he was satisfied beyond a
    reasonable doubt that actual knowledge was made out. He stated that the
    appellant knew
or
was wilfully blind in describing, albeit
    inaccurately, the Crowns argument: at paras. 23, 34, and in setting out his
    conclusion that the only reasonable inference was that the appellant knew or
    was wilfully blind to the contents of her suitcase: at paras. 38, 42. These
    repeated references to wilful blindness suggest that the trial judge was not
    prepared to base a finding of guilt solely on actual knowledge, which in turn
    suggests that he may well have had a reasonable doubt on this issue.

[5]

The Crown relies on this courts decision in
R.
    v. Ifejika
, 2013 ONCA 531. In that case, which involved the appeal of a
    conviction for importing heroin, this court indicated that while it was unclear
    whether the trial judge convicted on the basis that the appellant actually knew
    there was heroin in the package or whether she was wilfully blind to that fact,
    this was not an error as either would suffice in law: at paras. 4, 8. The
    difference however is that, based on a review of this courts reasons in
Ifejika
,
    there was an air of reality to both actual knowledge and wilful blindness. This
    court concluded, after reviewing the evidence, that on the entirety of the
    evidence it was open to the trial judge to conclude that the appellant knew or
    was wilfully blind that the package contained narcotics. By contrast, in the
    present case there was no air of reality to knowledge based on wilful
    blindness, and accordingly it would have been an error for the trial judge to
    find knowledge on that basis.

[6]

The Crown asks that we apply the curative
    proviso.
The proviso, as interpreted by the Supreme Court,
    applies to uphold a conviction where there is no reasonable possibility that
    the verdict would have been different had the error at issue not been made: see
R. v. Bevan
, [1993] 2
    S.C.R. 599, at p. 617;
R. v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28. That test can be
    satisfied in two ways. First, the proviso can apply if the error was harmless
    or trivial, in that it was so minor, so irrelevant to the ultimate issue in
    the trial, or so clearly non-prejudicial, that any reasonable judge or jury
    could not possibly have rendered a different verdict if the error had not been
    made: see
R. v. Van
, 2009
    SCC 22, [2009] 1 S.C.R. 716, at para. 35. Second, the proviso can be applied
    for more serious errors, where the evidence is so overwhelming that a
    reasonable and properly instructed jury would inevitably convict: see
Van,
at para. 36.

[7]

The Crown acknowledges that the prosecution case
    was not overwhelming. Nor in our view was the error minor or trivial. It went
    to the heart of what the trial judge had to determine  whether the appellant knew
    about the controlled substance in her suitcase.
We are
    unable to say that the trial judges error was such that any reasonable judge
    or jury could not possibly have rendered a different verdict if the error had
    not been made. Indeed, in resting his conclusion on actual knowledge
or
wilful blindness the trial judge here did not make a finding of actual
    knowledge beyond a reasonable doubt. Otherwise, the trial judge would have
    expressed his conclusion only in terms of actual knowledge, and he would have explained
    why actual knowledge was the only reasonable inference that could be drawn from
    the circumstantial evidence.

[8]

Accordingly, the appeal is allowed, the
    conviction is set aside, and a new trial is ordered.

K.
    van Rensburg J.A.

M.L.
    Benotto J.A.

J.A.
    Thorburn J.A.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in any
    way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Crawford, 2020 ONCA 790

DATE: 20201214

DOCKET: C68241

Hoy, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roy Roger Crawford

Appellant

Roy Crawford, in person

Jessica Smith Joy, for the respondent

Heard and released orally:
    December 9, 2020 by video conference

On appeal from the convictions entered
    on November 29, 2019 and the sentence imposed on January 2, 2020 by Justice Hugh
    K. Atwood of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Roy Roger Crawford appeals his internet luring, sexual
    interference and sexual assault convictions relating to an 11-year old, developmentally
    delayed classmate of his sons. He was found to have engaged in a single act of
    intercourse with the complainant, notwithstanding credibility problems with her
    evidence. In his conviction appeal Mr. Crawford argues that the trial judge
    erred in his credibility assessment, arriving at unreasonable, inadequately
    explained verdicts. He also appeals the 6-year sentence he was given.

[2]

We reject Mr. Crawfords conviction appeal. The
    trial judge committed no error in his credibility assessment. He identified the
    material problems with the complainants evidence but convicted Mr. Crawford,
    notwithstanding those difficulties, because electronic messages establish that
    Mr. Crawford was sexually interested in the complainant and was grooming her
    for sexual activity by causing her to believe that they were in a
    boyfriend/girlfriend relationship. The messages also confirm that Mr. Crawford
    took steps to be alone with the complainant, including on the occasion in
    question, and he encouraged her to delete incriminating electronic messages
    when he learned that the police had been called. As the trial judge explained,
    this, coupled with the complainants intellectual limitations and her
    continuing belief that Mr. Crawford is her boyfriend, provide ample explanation
    for reasonably convicting Mr. Crawford, notwithstanding the difficulties with the
    complainants evidence, including her failure to allege sexual intercourse
    during her first police statement. The trial judge found her evidence to be
    compelling, a determination that was for him to make.

[3]

We give leave to appeal sentence but deny Mr.
    Crawfords sentence appeal. He exploited a highly vulnerable child for his own
    sexual gratification. Not surprisingly, his deeply disturbing criminal conduct has
    caused the complainant significant psychological harm. It has also damaged if
    not destroyed her relationship with her grandmother, her guardian, because the
    complainant blames her grandmother for keeping her and Mr. Crawford apart. The
    sentence was fit.

[4]

The trial judges failure to stay one of the two
    sexual offence charges to avoid double-jeopardy does not affect the suitability
    of the sentence. To remedy this error, we stay the sexual assault charge, but
    leave in place the sentence imposed by the trial judge.

Alexandra
    Hoy J.A.
Gary Trotter J.A.

David M. Paciocco J.A.