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.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2021 ONCA 109

DATE: 20210224

DOCKET: M52099 & M52188 (C65015)

MacPherson, van Rensburg and
    Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Marie Codina

Appellant/Applicant

Angelina Codina, acting in person

Vanita Goela, for the respondent

Heard: in writing

REASONS
    FOR DECISION

[1]

The applicant Angelina Codina applies to re-open
    her conviction and sentence appeals and seeks judicial interim release pending the
    disposition of this application and any rehearing of her appeals.

[2]

The applicant was convicted by a jury of four
    counts of
providing advice or representation
to
    persons on immigration matters for consideration without being authorized to do
    so, contrary to s. 91(1) of the
Immigration and Refugee Protection Act
,
    S.C. 2001, c. 27 (
IRPA
), and one count of knowingly counselling a
    person to make a misrepresentation in an immigration application, contrary to
    s. 126 of the
IRPA
. She was sentenced to seven years imprisonment,
    less two years credit for pre-sentence custody, for a net sentence of five
    years, and ordered to pay restitution
in the amount
    of $30,200
.

[3]

The applicants conviction and sentence appeals
    were bifurcated. Her sentence appeal was heard and dismissed on December 16, 2019:
R. v. Codina
, 2019 ONCA 986. Her conviction appeal was dismissed from
    the bench on October 26, 2020, for reasons released on December 30, 2020:
R.
    v. Codina
, 2020 ONCA 848 (
Codina (2020)
).

[4]

Rather than apply for leave to appeal to the
    Supreme Court of Canada, the applicant now asks this court to re-open her
    appeals based on an alleged miscarriage of justice. She asserts that s. 91 of
    the
IRPA
is
ultra vires
Parliament, the Canada Border
    Services Agency (CBSA) did not have the jurisdiction to arrest or charge her,
    she could not be convicted because she used a corporation to provide
    immigration services, and the trial judge misdirected the jury.

[5]

We see no basis to reopen the appeals. All these
    points were dealt with in this courts comprehensive reasons dismissing the
    applicants appeal from conviction:
Codina (2020)
, at paras. 51-64 (s.
    91 of the
IRPA
is not
ultra vires
Parliament), 47-50
    (jurisdiction of CBSA to arrest and detain the appellant), 78-82 (exclusion of
    evidence of the corporate organization to provide immigration services), and 83-101
    (jury instructions). Nothing was overlooked. There is no basis to assert a
    miscarriage of justice.

[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.

[7]

The application to re-open the conviction and
    sentence appeals is dismissed. Given this conclusion, the application for bail
    is dismissed as moot.

J.C.
    MacPherson J.A.

K.
    van Rensburg J.A.

M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codina, 2021 ONCA 370

DATE: 20210602

DOCKET: M52317 (C65015)

Paciocco J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Angelina Marie Codina

Applicant

Martin Kerbel, for the applicant

Vanita Goela, for the respondent

Heard: in writing

ENDORSEMENT

OVERVIEW

[1]

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

[2]

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

BACKGROUND & MATERIAL FACTS

[3]

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

[4]

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

[5]

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

s. 126.

[6]

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

[7]

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

[8]

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

corpus

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

corpus

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

[9]

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

MS. CODINAS
    POSITION

[10]

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

[11]

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

·

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

·

challenges to the validity of the indictment,

·

Charter

and jurisdictional challenges
    related to her arrest and charging, and

·

challenges to the trial judges jury charge.

[12]

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

[13]

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

[14]

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

THE CROWNS POSITION

[15]

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

ANALYSIS

[16]

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

[17]

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

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

[18]

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

[19]

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

[20]

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

[21]

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

corpus

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

[22]

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

[23]

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

CONCLUSION

[24]

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

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Daponte, 2021 ONCA 14

DATE:
    20210111

DOCKET:
    C67109

Juriansz,
    Jamal and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Floriano
    Daponte and Vivian Hamilton

Respondents

Anjie Tarek-Kaminker and Brian G.
    Puddington, for the appellant

Mark C. Halfyard, for the respondent
    Floriano Daponte

Etai Hilzenrat, for the respondent
    Vivian Hamilton

Heard: December 10, 2020 by video
    conference

On appeal from the stay entered by
    Justice Michael D. McArthur of the Superior Court of Justice on June 6, 2019,
    with reasons reported at 2019 ONSC 3822, 156 W.C.B. (2d) 447.

Coroza J.A.:

I.

OVERVIEW

[1]

The respondents, Floriano Daponte and Vivian
    Hamilton, were charged with several drug offences, possession of proceeds of
    crime and possession of a prohibited weapon (a flick knife). The trial judge
    found that their right to a trial within a reasonable time under s. 11(b) of
    the
Canadian Charter of
    Rights and Freedoms
had been infringed and stayed
    the proceedings.

[2]

The trial judge, relying on the framework set
    out by the Supreme Court of Canada in
R. v. Jordan
, 2016 SCC
    27, [2016] 1 S.C.R. 631, held that the net delay was 30.5 months, which
    exceeded the presumptive ceiling of 30 months and was presumptively unreasonable.
    He held that the Crown did not rebut the presumption that the delay was
    unreasonable because it had not established the presence of exceptional
    circumstances or that the case was particularly complex.

[3]

The Crown appeals on the basis that the trial
    judge erred in his application of the
Jordan
framework. It
    argues that the trial judge erred in finding that a
certiorari
application brought by the respondents after they were committed for trial was
    not an exceptional circumstance. The delay caused by this proceeding (3 months)
    should have been subtracted from the net delay, resulting in remaining delay of
    27.5 months. Since the remaining delay fell below the presumptive ceiling, the
    onus was on the respondents to show that the delay was unreasonable. According
    to the Crown, the respondents have not established that this is one of the
    clear cases where a stay should be granted.

[4]

I would allow the appeal. The trial judge erred
    in finding that the respondents
certiorari
application was not an exceptional
    circumstance. This court has previously held that when the defence brings a
certiorari
application in good faith, that proceeding is an exceptional circumstance
    because the decision to bring the application would be outside the control of
    the Crown, unless in opposing such an application the Crown is acting in bad
    faith, taking a frivolous position, or responding in a dilatory manner.

[5]

In my view, the trial judge improperly focused
    on the fact that the Crown took a frivolous position with respect to just one
    aspect of the
certiorari
application in order to find that the entire application was not an
    exceptional circumstance. While the respondents were partially successful on
    the
certiorari
application because the prohibited weapon count was quashed, it is
    apparent that the trial judge lost sight of the fact that the balance of the
certiorari
application was dismissed. The committals for trial on the drug charges and the
    proceeds charge were upheld. The Crown did not act unreasonably in opposing the
    application and the proceeding should have been considered an exceptional
    circumstance. The time allocated for that proceeding (3 months) should have
    been deducted from the net delay, leaving remaining delay of 27.5 months that
    did not breach the presumptive ceiling. This case is also not one of the clear
    cases where a stay should be granted notwithstanding that the delay falls below
    the presumptive ceiling.

II.

history of proceedings

[6]

The respondents were arrested on December 2,
    2016, following a year long police investigation. The investigation included
    acting on information provided by ten confidential informants and police
    surveillance of a rural property owned by one of the respondents. On the day the
    respondents were arrested, the police executed a search warrant at the property
    and seized drugs, cash, paraphernalia consistent with drug trafficking and a
    flick knife.

(i)

The
Certiorari
Application

[7]

The case proceeded in the Ontario Court of
    Justice in a straightforward manner.

[8]

After a preliminary hearing that took place over
    three days, the respondents were committed on a total of nine charges on
    November 17, 2017. The case was then adjourned to December 12, 2017 in the
    Superior Court of Justice. In the meantime, the respondents challenged the
    committals for trial by serving a
certiorari
application in relation to all
    nine counts on December 1, 2017.

[9]

The application was heard on January 25, 2018.
    On March 16, 2018 the application judge rendered her decision dismissing the
    application except for the weapon charge which she quashed.

(ii)

The Delay Following the
Certiorari
Application

[10]

Following the release of the application judges
    ruling, the trial was scheduled for ten days starting on March 4, 2019 with
    pre-trial motions scheduled for December 10 and 11, 2018. The pre-trial motions
    filed by the respondents claimed that the police had violated their s. 8
Charter
rights
    against unreasonable search and seizure.

[11]

In response to the motion, the Crown made
    further disclosure to the respondents on December 3, 2018. That disclosure
    consisted of unredacted portions of the search warrant that was issued in this
    case. The Crown had previously withheld portions of the warrant based on
    changing levels of perceived harm to informants and based on the privacy
    interests of other individuals. Upon receipt of this disclosure, the
    respondents filed an additional pre-trial motion alleging a breach of s. 7 of
    the
Charter
and seeking the remedy of excluding this new disclosure.
    Both parties agreed that the s. 7 application logically had to precede the
    hearing of the s. 8 application since the relief sought by the respondents
    included the exclusion of evidence required for the s. 8 application. Both
    parties also agreed that four days instead of two were now required to argue
    the motions.

[12]

As a result of these developments, the motions
    did not proceed on December 10, 2018 as originally scheduled. The parties met
    with the local administrative judge and the trial coordinator to reschedule the
    motions. However, there were no available dates to hear the motions until the
    originally scheduled trial date commencing March 4, 2019.

[13]

Ultimately, the original trial dates scheduled
    for March were now scheduled as dates for the pre-trial motions and the trial
    dates were rescheduled to start on June 4, 2019. On May 13, 2019, the
    respondents filed the s. 11(b) application. The trial judge heard the
    application and granted a stay of proceedings on June 6, 2019.

III.

LEGAL FRAMEWORK

(i)

The
Jordan
Framework

[14]

In assessing the s. 11(b) application, the trial
    judge was required to apply the framework set out by the Supreme Court of
    Canada in
Jordan
. That framework has been summarized by Gillese J.A. in
R. v. Coulter
,
    2016 ONCA 704, 133 O.R. (3d) 451, at paras. 34-41, as follows:

[
34
]

Calculate the
total delay
, which is the period from the charge to the actual or anticipated end
    of trial (
Jordan
, at
    para. 47).

[
35
]

Subtract
defence delay
from the total delay, which results in the
Net Delay
 (
Jordan
, at para. 66).

[
36
]

Compare the Net Delay to the presumptive ceiling (
Jordan
, at para. 66).

[
37
]

If the Net
    Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To
    rebut the presumption, the
Crown must establish the
    presence of
exceptional circumstances
(
Jordan
, para. 47).
    If it cannot rebut the presumption, a stay will follow (
Jordan
, para. 47). In general, exceptional
    circumstances fall under two categories:
discrete
    events
and
particularly
    complex cases
(
Jordan
, para. 71).

[
38
]

Subtract delay caused by discrete events from the Net Delay (leaving
    the
Remaining Delay
)
    for the purpose of determining whether the presumptive ceiling has been reached
    (
Jordan
, para. 75).

[
39
]

If the Remaining Delay exceeds the presumptive ceiling, the court must
    consider whether the case was particularly complex such that the time the case
    has taken is justified and the delay is reasonable (
Jordan
, at para. 80).

[
40
]

If the
Remaining Delay falls below the
    presumptive ceiling
,
the
    onus is on the defence to show that the delay is unreasonable
(
Jordan
, para. 48).

[
41
]

The new framework, including the presumptive ceiling, applies to cases
    already in the system when
Jordan
was released (the
Transitional Cases
) (
Jordan
, para.
    96) [Emphasis in original.].

(ii)

Standard of Review

[15]

The trial judges characterization and
    allocation of various periods of delay, as well as the ultimate decision to
    impose a judicial stay for unreasonable delay, involves a question of law
    subject to a correctness standard of review:
R. v.

Albinowski
,
    2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 27. However, the trial judges
    underlying findings of fact are reviewed on a standard of palpable and
    overriding error:
R. v.
    Schertzer
, 2009 ONCA 742, 248 C.C.C. (3d) 270, at
    para. 71, leave to appeal refused, [2010] S.C.C.A. No. 3;
R. v. N.N.M.
,
    209 C.C.C. (3d) 436 (Ont. C.A.), at para. 6.

IV.

DISCUSSION

[16]

The Crown makes two submissions on the appeal.
    First, the trial judge erred by not properly characterizing the time to hear
    and complete the respondents
certiorari
application as an exceptional
    circumstance to be deducted from the net delay. Second, if that time had been
    deducted, the net delay would have fallen below the presumptive ceiling to 27.5
    months, and the respondents would have the onus to establish that this was a
    clear case where the case should be stayed.

[17]

The respondents argue that the trial judge did
    not err in applying the
Jordan
framework. According to the respondents, the trial judge found that
    the Crowns response to the weapons count was frivolous and this court should
    defer to the trial judges ultimate finding that the
certiorari
application was not an exceptional circumstance that should be deducted from
    the net delay.

[18]

Alternatively, the respondents contend that even
    if the remaining delay in this case did not breach the presumptive ceiling, the
    delay of 27.5 months was nonetheless unreasonable. The respondents rely on the trial
    judges findings that the defence did not cause any of the delay, the case was
    not complex, there were a chronic lack of judicial resources in London, and the
    Crown made untimely disclosure.

Ground #1: Did the Trial Judge Err in Finding
    that the
Certiorari
Application was not an Exceptional Circumstance?

[19]

In
R. v. Tsega
, 2019 ONCA 111, 144 O.R. (3d) 561, leave to appeal refused, [2019]
    S.C.C.A. No. 106, this court held that delay caused by defence applications for
    extraordinary remedies, including
certiorari
, generally constitutes an
    exceptional circumstance. Hourigan J.A. held, at para. 83:

With regard to defence applications, where they
    are frivolous or made in bad faith, they will generally constitute defence
    delay. Where they are brought in good faith, they constitute an exceptional
    circumstance because they would be outside of the control of the Crown,
unless in opposing such an application or an
    appeal therefrom the Crown is acting in bad faith, taking a frivolous position,
    or responding in a dilatory manner
[Emphasis
    added.].

[20]

The trial judge in this case distinguished
Tsega
because he found that
    the outcome on the prohibited weapon count was obvious and foreseeable and
    litigation on this count was avoidable and within the Crowns control to
    address and remedy. In his view, the Crown should have conceded the weapon charge
    before or at least at the
certiorari
hearing.

[21]

I do not consider it necessary to address the Crowns argument on
    appeal that the trial judge erred in finding that the outcome of the prohibited
    weapon count was obvious and foreseeable. Assuming that there was a basis to
    find that litigation about the flick knife was avoidable, I do not agree that
    the Crowns conduct in relation to that single count distinguished this case
    from this courts holding in
Tsega
.

[22]

The respondents had been committed for trial on nine counts. The
    litigation did not focus on a single count of a weapon in relation to a flick
    knife that was found in the home. This case remains one involving the seizure
    of drugs and proceeds of crime. There is no suggestion in this case that the
    Crown acted in bad faith, took a frivolous position or responded in a dilatory
    manner in relation to the drug and proceeds charges. Indeed, the
Crown had no control over the respondents decision to bring a
certiorari
application on all of the charges and there is no suggestion that the
    litigation was avoidable in relation to those counts.

[23]

A review of the application judges reasons
    fortifies my conclusion. In a decision that spanned 17 pages and 82 paragraphs,
    one single paragraph is devoted to the issue of the flick knife. Respectfully,
    the trial judge erred by concluding that the respondents application was not
    an exceptional circumstance because of the Crowns conduct in relation to just
    one count, notwithstanding its appropriate conduct and successful defence in
    relation to all the other counts.

[24]

The parties on this appeal do not dispute that
    if the delay for the
certiorari
application (3 months to argue the application and receive reasons
    for ruling) is subtracted from the net delay, the remaining delay would be 27.5
    months, which falls below the ceiling. As set out above,
Jordan
holds
    that if the remaining delay falls below the presumptive ceiling, the onus is on
    the defence to show that the delay is unreasonable. I now turn to the Crowns
    second argument.

Ground #2: Have the Respondents Demonstrated
    that this a Clear Case of Unreasonable Delay?

[25]

The Crown argues that since the remaining delay
    falls under the presumptive ceiling, it is the respondents onus to establish
    that this is one of the clear cases where, notwithstanding that the delay falls
    below the ceiling, it is unreasonable.

[26]

The respondents contend that if the remaining
    delay falls below the presumptive ceiling, the delay will still be unreasonable
    if they can establish the following two conditions:

1)

The defence took meaningful steps that
    demonstrate a sustained effort to expedite the proceedings; and

2)

The case markedly exceeded its reasonable time
    requirements.

[27]

At the outset, it is important to recall that
Jordan
expected stays for delay in cases that fell below the presumptive ceiling to
    be rare, and limited to clear cases: at para. 48.

(i)

Sustained Effort to Expedite the Proceedings

[28]

I acknowledge that the trial judge found that
    the respondents acted in a timely, diligent, and reasonable manner and that
    they desired for the case to move forward. His findings do not disclose
    palpable and overriding error and support the respondents submission that they
    took meaningful steps that demonstrated a sustained effort to expedite
    proceedings. Accordingly, the respondents have satisfied the first condition.

(ii)

Markedly Exceeded Reasonable Time Requirements

[29]

However, as noted above, the respondents must
    also meet a second pre-condition for obtaining a stay of proceedings in cases
    of delay falling under the 30-month ceiling. That pre-condition requires the
    respondents to show that the case markedly exceeded the reasonable time
    requirements of the case, which is a question of fact:
Jordan
, at
    para. 91.

[30]

As set out in
Jordan
, determining
    whether a case has taken markedly longer is not a matter of precise
    calculation. The reasonable time requirements to get a case to trial depend on
    a variety of factors, including the complexity of the case, whether the Crown
    took reasonable steps to expedite the proceedings and local conditions. I turn
    to the application of those factors.

[31]

I see no basis to interfere with the trial
    judges finding that this was not a complex case. Although the case was set for
    two weeks of trial, the trial judge noted that the Crowns witnesses were
    police officers, the issues to be litigated at trial were relatively narrow and
    the proceedings were straightforward.

[32]

I also agree with the trial judges observations
    that the Crown exclusively had the control, power and obligation to
    periodically revisit and reassess the withholding of disclosure involving
    confidential informants and to be sensitive to timeliness in relation to the
    defence and their rights to full answer and defence. I agree with the trial
    judge that this did not happen and that the late disclosure was as a result of
    a somewhat late response to the s. 8 application.

[33]

With respect to local conditions,
Jordan
instructs trial judges to employ knowledge of their own jurisdiction, including
    how long a case of that nature typically takes to get to trial in light of
    relevant local considerations and systemic circumstances.

[34]

The question then becomes whether the delay of
    27.5 months for a ten-day drug trial involving two accused is markedly longer
    than was reasonable for London, Ontario. While the trial judge and the local
    administrative judge made some comments about the shortage of judicial
    resources, including judicial vacancies, nothing on this record would establish
    how long a case of that nature typically takes to get to trial in light of the
    relevant local and systemic circumstances:
Jordan
, at para. 89. I
    also note that the trial judge specifically found that the case progressed
    normally while it was in the Ontario Court of Justice; the 11 months and 15
    days before that court was not impacted by the judicial vacancies in the
    Superior Court of Justice.

[35]

The respondents highlight the trial judges
    comments that significant ongoing limited judicial resources impacted this case
    and played a role in the difficulties encountered. I acknowledge that the trial
    judge expressed his concern that the Superior Court in London was under-resourced
    and did not have the luxury to address late-breaking unforeseeable
    circumstances. However, the trial judges comments do not assist in this regard
    because, as noted above, he proceeded on the erroneous premise that the presumptive
    ceiling had been breached. He did not turn his mind to whether this trial took
    markedly longer than it should have even with the late-breaking developments of
    the case.

[36]

According to the Supreme Court of Canada, in
    determining whether a trial took markedly longer than it should have, it is
    necessary to step back from the minutiae and adopt a birds eye view of the
    case:
Jordan
, at para. 91.

[37]

According to the trial judge, the parties agreed
    that up until December 7, 2018, the case was on track for the trial which was
    initially scheduled to proceed on March 4, 2019 for 10 days. The trial judge
    explained that it was only after this point that the critical and problematic
    circumstances in this case then arose. If the trial had proceeded as initially
    scheduled, the remaining delay would have totalled approximately 24.5 months.
    While the respondents had indicated availability for earlier trial dates, they
    accepted the dates in March, and no complaint was made that 24.5 months meant
    the case was taking markedly longer than it should have. Although the Crowns
    late disclosure and respondents s. 7
Charter
application
    served on December 7, 2018 led to a further delay of 3 months, the net delay of
    27.5 months remained well below the ceiling. Taking a birds eye view of the
    case, I have concluded that this is not one of the clear cases where a stay
    should be granted for delay.

V.

DISPOSITION

[38]

For these reasons I would allow the appeal, set
    aside the stay of proceedings and remit the matter to the Superior Court of Justice
    for trial.

Released: R.G.J. January 11, 2021

S.
    Coroza J.A.

I
    agree. R.G. Juriansz J.A.

I
    agree. M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dare, 2021 ONCA 327

DATE: 20210517

DOCKET: C66356

Juriansz, Tulloch and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Temitope Dare

Appellant

Lance Beechener, for the appellant

Tracy Kozlowski, Katie Doherty and Lisa
    Fineberg, for the respondent

Heard: January 12-13, 2021 by
    videoconference

On appeal from
    the convictions entered by Justice Laura A. Bird of the Superior Court of
    Justice on February 9, 2018, sitting with a jury, and the ruling on entrapment dated
    June 22, 2018.

Juriansz J.A.:

[1]

This appeal was argued together with two other
    defence appeals,
R. v. Jaffer
and
R. v. Haniffa
, and a Crown
    appeal,
R. v. Ramelson
. All the appeals arose out of arrests and
    prosecutions pursuant to Project Raphael of the York Regional Police (YRP).
    Project Raphael was an undercover YRP investigation that began in 2014 with the
    objective of reducing the demand for sexual services from juveniles in the
    region by targeting the buyer side.

[2]

As part of the investigation, the police posted
    fake advertisements in the escorts section of the online classified
    advertising website Backpage. When persons responded to the ads, an undercover officer
    posing as the escort would disclose in the ensuing text chat that she was underage.
    Individuals who continued the chat and arranged sexual services and a price were
    directed to a hotel room to complete the transaction and were arrested and
    charged on their arrival.

[3]

The common issue in the four appeals is whether
    the individuals who were arrested and prosecuted pursuant to Project Raphael
    were entrapped by the police. The appellant also appeals his convictions on the
    ground that the trial judge erred in her instructions to the jury.

[4]

For the reasons that follow, I would dismiss the
    appeal from conviction and the appeal of the dismissal of the entrapment
    application.

A.

The FACTS IN THIS CASE

[5]

In this case, the ad the police placed on the escorts
    section of Backpage purported to have been placed by Kathy. Kathy described
    herself as a Tight Brand New girl who is sexy and young and has a YOUNG
    FRIEND. The ad included three photographs of a female police officer, whose
    face was not shown, posing as Kathy. In one of the photographs, she was wearing
    a t-shirt with the name of a local high school printed on it. The ad indicated
    Kathy was 18 years old, the minimum age allowed by Backpage.

[6]

On March 25, 2016, the appellant testified he was
    under the influence of alcohol after a party at his house and decided to look
    for an escort on Backpage. At 3:14 a.m. he responded to the ad posted by Kathy
    and began communicating with Detective Sergeant Hogan who was posing as Kathy. At
    3:26 a.m. the undercover officer asked, You cool with young?, to which the
    appellant replied Yes. Am also young. The undercover officer then wrote Ok
    cool. Im 15 but look bit older. Then, before the appellant replied, the
    officer sent another text saying, How old are you if you dont mind me
    asking? The appellant responded, Ok am 22.

[7]

The appellant continued the text chat discussing
    whether Kathys friend would be included, the sexual services, the price and where
    to meet. When the appellant had not arrived when he said he would, the
    undercover officer texted at 5:05 a.m., Thought u were playing games and
    trying to take advantage of me because Im 15. Didnt mean to be rude. The
    appellant responded, It fine no problem.

[8]

When the appellant arrived at the room, he was
    arrested and charged with telecommunicating with a person he believed to be
    under the age of 18 contrary to s. 172.1(2) (child luring under 18), telecommunicating
    with a person he believed to be under the age of 16 contrary to s. 172.1(2)
    (child luring under 16), and communicating to obtain for consideration the
    sexual services of a person under 18 contrary to s. 286.1(2) (communicating to
    obtain sexual services from a minor) of the
Criminal Code
, R.S.C., 1985,
    c. C-46. While the information references s. 172.1(2) these charges relate to
    the offences under ss. 172.1(1)(a) and 172.1(1)(b). Section 172.1(2) sets out
    the punishment for these offences.

[9]

The appellants defence at trial was that he
    believed he was communicating with a person who was over the age of 18. He
    testified that he did not notice the reference to Kathy being 15 in the 3:26 a.m.
    text and that in his next text he was responding only to the question about his
    age. He testified he was in a taxi on the way to the hotel when he received the
    5:05 a.m. text and so read only the last part of it, again missing Kathy saying
    she was 15.

[10]

The jury found the appellant guilty on all three
    counts. The trial judge stayed the convictions under ss. 172.1(1)(b) (child
    luring under 16) and 286.1(2) (communicating to obtain sexual services from a
    minor) pursuant to
Kienapple v. R.
, [1975] 1 S.C.R. 729.

[11]

The appellant applied for a stay of proceedings
    on the basis he had been entrapped. The trial judge dismissed the application and
    sentenced the appellant to 90 days imprisonment to be served intermittently.

B.

ARGUMENTS ON
    APPEAL

[12]

The appellant submits
    the trial judge made two errors:

1.

by erring in
    instructing the jury they could
convict the appellant if they determined he had read one of the text
    messages saying Kathy was 15; and

2.

by concluding Project Raphael was a bona
    fide inquiry and failing to find that the appellant was entrapped.

C.

ANALYSIS

(1)

Jury instruction

[13]

The appellant appeals his conviction submitting
    the trial judge erred in instructing the jury they could convict if they
    determined he had read one of the text messages saying Kathy was 15. He relies
    on the Supreme Courts decision,
R. v. Morrison
, 2019 SCC 15, [2019] 2
    S.C.R. 3, which was released after the appellant was convicted, to argue that the
    trial judges instructions were wrong in law.

[14]

In
Morrison
the Supreme Court declared s.
    172.1(3) of the
Criminal Code
to be of no force or effect. Section 172.1(3)
    created a presumption, absent evidence to the contrary, that an accused believed
    any representation made that the person with whom they communicated was
    underage. In
Morrison
, the Supreme Court ruled that presumption violated
    an accuseds right to be presumed innocent under s. 11(d) of the
Charter
    of Rights and Freedoms
. Moldaver J. writing for the majority said that the
    Crown could not meet its burden by proving an accused was negligent or reckless
    about the persons age. He stated that the only pathway to conviction was to
    prove beyond a reasonable doubt that the accused believed the other person was
    underage: at para. 96. Later in his reasons, he did allow that wilful
    blindness can stand in for belief as well: at para. 99.

[15]

The appellant submits the trial judge erred by
    linking the reasonable doubt standard to whether the appellant had read at
    least one of the text messages that indicated Kathy was 15 years old. He says
    this would have left the jurors with the impression that, if they found the
    appellant read the text messages, the essential element of belief had been
    proved. The reasoning would be legally incorrect because, as Pardu J.A. had
    said in the Court of Appeal decision in
Morrison
, 2017 ONCA 582, 136
    O.R. (3d) 545, at para. 60:

There is simply no
    expectation that representations made during Internet conversations about
    sexual matters will be accurate or that a participant will be honest about his
    or her personal attributes, including age. Indeed, the expectation is quite the
    opposite, as true personal identities are often concealed in the course of
    online communication about sexual matters.

This passage was quoted with approval
    by Moldaver J. in
Morrison
, at para. 58
.

[16]

Thus, the appellant submits, permitting the jury
    to find that he simply read the texts falls short of proving he believed the
    person with whom he was communicating was under the age of 16. A finding that
    he simply read the text messages would establish only recklessness, which
Morrison
makes clear is insufficient to ground a conviction: at para. 83.

[17]

I would not give effect to this ground of appeal.
    Upon considering the trial judges instructions as a whole in the context of
    the trial and the addresses of counsel I am satisfied the jury was not misled on
    the essential element of belief.

[18]

In her instructions on count 1 the trial judge
    correctly instructed the jury that the critical issue was whether the appellant
    believed Kathy was 15 years old. Then, in her instructions on count 2, the
    trial judge again told the jury that they must find that the appellant believed
    the person he was communicating with was under the age of 16. However, she
    added this comes down to the same question of whether the Crown has proven
    beyond a reasonable doubt that Mr. Dare read the two text messages that made
    reference to [K]athy being 15 years old. She added if you have a reasonable
    doubt about whether Mr. Dare believed that Detective Sergeant Hogan was under
    the age of 16 years, you must find him not guilty of this offence.

[19]

The trial judge told the jury that the
    instructions she had given earlier on the issue of Mr. Dares belief about the
    age of the person he was communicating with applied to count 3.

[20]

After the trial judge completed her jury charge,
    the Crown objected that the trial judge had told the jury that the Crown had to
    prove beyond a reasonable doubt that he read the two text messages, but it
    would be sufficient if he had read one or the other of them.

[21]

The trial judge called the jury back and
    provided the following clarifying instruction:

There is one clarification I wish to make,
    Members of the Jury.  [I]t applies to all three counts of the indictment, and
    its in relation to the Crown being required to prove beyond a reasonable doubt
    that Mr. Dare read the text messages, specifically in relation to [K]athy being
    15, I had said, read both of them. It should have read, read one or both of
    them.

So the Crown must prove beyond a reasonable
    doubt, in relation to all three counts, that Mr. Dare read one or both of the
    text messages where Detective Sergeant Hogan made reference to the age of 15.

[22]

The appellants defence at trial was that he had
    not paid close attention to the messages in the text chat and simply had not
    seen either of the two references to Kathys age. In his testimony in-chief, he
    was emphatic that if he had read those references he would not have continued
    the chat. Under cross-examination, he steadfastly denied that he had read the
    15-year-old references.

[23]

In her charge, the trial judge set out the
    defence position that the appellant had missed the references to Kathy being
    15, and if he had, he would have stopped texting with her because he had no
    interest in having sex with a child. After summarizing the references in the
    text chats and the appellants specific denials of reading each, the trial
    judge instructed the jury that if you have a reasonable doubt about whether
    Mr. Dare believed that Detective Sergeant Hogan was under the age of 18 years,
    you must find him not guilty of this offence.

[24]

Except for the impugned passages, the trial
    judge, throughout her charge, instructed the jury that they had to find the
    appellant believed the person with whom he was communicating was underage. Moreover,
    the Crowns closing address told the jurors clearly they had to be satisfied
    beyond a reasonable doubt that the appellant had both read at least one of the
    15-year-old references
and
believed Kathy to be 15 before the appellant
    could be found guilty.

[25]

At trial the defence drew no distinction between
    the appellant reading the 15-year-old references in the text chat and his
    believing that Kathy was underage. The defence conducted the trial on the basis
    that if the appellant had read the 15-year-old text messages he would have
    known that Kathy was 15 and discontinued the text chat. For that reason, it is
    understandable that defence counsel did not object to the passages that are now
    criticized on appeal.

[26]

Considering the trial judges instructions as a
    whole, and in the context of the defence position at trial, I am satisfied the
    jury understood that the critical question was whether the appellant believed
    the person with whom he was texting was underage.

[27]

I would reject this ground of appeal.

(2)

Entrapment

[28]

Appellants counsel
    adopted the submissions made on the issue of entrapment in
Haniffa
.
    Those submissions were considered in
Ramelson.
Comprehensive reasons in
Ramelson

included the analysis and rejection of the
    second ground of appeal advanced in this case. For the reasons set out in
Ramelson
,
    I would reject this appellants argument that he was entrapped.

D.

Conclusion

[29]

For these reasons, I would dismiss the appeal.

Released: May 17, 2021 RGJ

R.G. Juriansz J.A.

I agree. M. Tulloch J.A.

I agree. David M. Paciocco J.A.