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EXTRAORDINARY REMEDIES - Habeas corpus

Thursday, March 02, 2017 @ 7:00 PM  


Appeal by the accused, Codina, from denial of habeas corpus. The accused was detained awaiting trial for offences under the Immigration and Refugee Protection Act (IRPA) arising from advising on immigration matters as a non-lawyer. The accused was charged in May 2014 and released on bail in July 2014. In September 2015, she was arrested and charged with breaching bail and further offences under the IRPA. Her bail was revoked following a hearing in November 2015. She was detained on all charges in December 2015, following a show-cause hearing. The Crown preferred a direct indictment in December 2016 with respect to the IRPA charges, and stayed the remaining charges. While detained, the accused initiated several proceedings, all of which were unsuccessful. A two-part habeas corpus application was denied. The first part of the application alleged border service officers lacked statutory authority for her arrest. The second part challenged the December 2015 detention order on jurisdictional and constitutional grounds. Each aspect was dismissed with brief oral reasons. The accused appealed.

HELD: Appeal allowed. The accused’s contention that the direct indictment was a nullity was without merit, as s. 577 of the Criminal Code allowed an indictment to be preferred with the consent in writing of the Deputy Attorney General. The stay of the previous informations in favour of the indictment did not affect the detention order, which continued to apply in respect of the new indictment pursuant to s. 523(1.2) of the Code. The Court declined to address the lawfulness of the accused’s arrest by border service officers, or the constitutional issues she raised due to the absence of a proper record and the preference to address such issues at trial. The serious liberty issue raised by the accused was best examined in the context of a bail review. The appropriate order was to set aside the habeas corpus rulings for failure to give sufficient reasons, and order a new bail review to be held forthwith.