Ontario Criminal

Criminal Law

Extraordinary remedies

Habeas corpus

Habeas corpus hearing adjourned pending outcome of bail review

Accused was detained awaiting trial on number of counts under Immigration and Refugee Protection Act in respect of advising on immigration matters as non-lawyer without authorization to do so. She was originally charged on May 7, 2014, and released on bail on July 15, 2014. On September 17, 2015 she was arrested and charged with breaching bail and committing further offences under Act. Following revocation hearing, her bail was cancelled in November 2015 and she was detained on all charges on December 8, 2015 following show-cause hearing. Preliminary hearing was commenced for each of May 2014 charges and September 2015 charges. Before receiving decision on preliminary hearings, Crown preferred direct indictment on December 11, 2016, with respect to all charges under Act. Direct indictment was filed under s. 577 of Criminal Code. Original charges, including breach of bail charges, were stayed on January 5, 2017. While detained, accused initiated multiple proceedings including two-part habeas corpus application. Proceedings commenced by accused were dismissed and she remained in custody pending trial under new indictment. Accused appealed denial of habeas corpus relief. Decision of application judge was set aside for failure to give adequate reasons and new bail review hearing was to be held forthwith. New habeas corpus hearing adjourned pending outcome of bail review. Under s. 523(1.2) of Code, previous detention order continued to apply in respect of new indictment. Purpose and effect of s. 523(1.2) of Code are to continue previous detention order and make it apply to new indictment. Any stay of original charges has no effect on ongoing status of original detention order. Accused had now spent 18 months in custody. Over 16 months had passed since her re-arrest on charges that she breached her bail. While new charges she allegedly committed while on bail were proceeding, charges that she failed to comply with bail had been stayed. Maximum sentence for five of counts with which accused was charged was two years and five years for sixth count. Accused had been in custody for further six months since dismissal of habeas corpus application and had two further bail reviews. Serious liberty issue now existed and this issue was best addressed in context of bail review. Although accused had argued issue before it did not appear to have been fully considered. More time had passed and breach of bail charges had now been stayed, and these were new factors that may well affect considerations of judge when determining issues on bail review.

R. v. Codina (2017), 2017 CarswellOnt 1109, 2017 ONCA 93, K. Feldman J.A., Paul Rouleau J.A., and K. van Rensburg J.A. (Ont. C.A.).

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