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OFFENCES AND ENFORCEMENT - Contravention of legislation - Prosecution of offences

Monday, March 01, 2021 @ 9:37 AM  

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Appeal by the accused from convictions for providing advice or representation for consideration, contrary to s. 91(1) of the Immigration and Refugee Protection Act, (IRPA) and knowingly counselling a person to make a misrepresentation in relation to matters relevant to the administration of the IRPA, contrary to s. 126. The appellant was a disbarred lawyer and was not a licensed immigration consultant. She owned Codina International, a company that provided a variety of immigration-related services and advice. Each of the five charges involved individuals who went to Codina International seeking advice and representation in respect of immigration-related matters and ended up dealing with the appellant. The appellant challenged the validity of the charges and alleged errors at trial.

HELD: Appeal dismissed. Section 91(1) which prohibited representing or advising persons in connection with proceedings or applications under the IRPA for consideration was not ultra vires the federal government. The section did not relate exclusively to the regulation of the business of providing legal advice. Section 91 enhanced the overall integrity of the IRPA, thereby promoting the purposes underlying the legislation. By limiting those entitled to be paid for advice or representation to protect individuals from incompetent or dishonest advice, the legislation also sought to protect the integrity of the immigration system, a central feature of Canadian public law. Both purposes were valid criminal law purposes. Section 91 fell squarely within the criminal law power. Sections 91(1) and s. 126 of the IRPA were not contrary to s. 7 of the Canadian Charter of Rights and Freedoms (Charter). The language in s. 91 and s. 126 was broad, but justifiably so, given the purpose of the legislation to capture the various circumstances in which, and the various methods by which, the requisite advice or representation might be offered or provided. The language of each count in the indictment, considered in combination with the disclosure and particulars provided, described a single transaction referable to the particular complainant’s dealings with the appellant and Codina International. The trial judge correctly concluded the charges complied with s. 581(1) of the Criminal Code. The trial judge properly concluded all the counts complied with the pleading requirements of the Criminal Code. The trial judge made no error in his evidentiary rulings or in his jury instructions. The appellant’s 2015 acquittal on an unrelated charge under s. 91 of the IRPA was irrelevant at the appellant’s trial since 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. The trial judge did not err in excluding evidence of the corporate organization and operation of Codina International. 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. The corporate veil offered no protection from personal criminal responsibility for her own conduct. The trial judge defined counseling in a manner that was entirely consistent with the appellant’s submission. The evidence, most of which came from the tape-recorded conversations between the appellant and a client revealed a powerful case against the appellant. The trial judge correctly limited the meaning of the word advice in s. 91.

R. v. Codina, [2020] O.J. No. 5766, Ontario Court of Appeal, D.H. Doherty, C.W. Hourigan and G.I. Pardu JJ.A., December 30, 2020. Digest No. TLD-March12021001