R. v. Araya (N.), 2015 ONCA 854

• Judge: Strathy, C.J.O., Laskin and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 07, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 854;(2015), 344 O.A.C. 36 (CA)

R. v. Araya (N.) (2015), 344 O.A.C. 36 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.020

Her Majesty the Queen (respondent) v. Nahoor Araya (appellant)

(C54733; 2015 ONCA 854)

Indexed As: R. v. Araya (N.)

Ontario Court of Appeal

Strathy, C.J.O., Laskin and Gillese, JJ.A.

December 7, 2015.

Summary:

In 2008, the 18 year old accused and two or three other youths participated in a robbery in a Toronto park. During the robbery, the 17 year old victim was shot and killed. The accused was not the shooter and did not carry a gun. He surrendered to police, was charged with murder, and was convicted by a jury of manslaughter. No one else was ever charged in the shooting. The use of a firearm in the commission of manslaughter had a four year mandatory minimum sentence (Criminal Code, s. 236(a)). The trial judge sentenced the accused to eight years' imprisonment, less 15 months' credit for pre-trial custody. The accused appealed his conviction and sentence.

The Ontario Court of Appeal, Strathy, C.J.O., dissenting, in a judgment reported (2013), 312 O.A.C. 284, allowed the appeal against conviction and ordered a new trial. All three judges opined that the trial judge erred in sentencing the accused by treating the use of a firearm (an essential element of the offence) as an aggravating factor justifying a sentence beyond the four year minimum sentence. The Crown appealed as of right.

The Supreme Court of Canada, in a judgment reported (2015), 468 N.R. 114; 329 O.A.C. 1, allowed the appeal and restored the accused's conviction for manslaughter. The matter was remitted to the Court of Appeal for consideration of the sentencing appeal. Since it was now almost four years since the accused was initially sentenced, he sought leave to introduce fresh evidence which spoke to his current character and efforts to rehabilitate himself.

The Ontario Court of Appeal admitted the fresh evidence and allowed the sentencing appeal, reducing the sentence from eight to six years' imprisonment, less 15 months' credit for pre-trial custody.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5834.5

Sentencing - Considerations on imposing sentence - Co-operation with authorities (incl. discount for informer assistance) - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5841

Sentencing - Considerations on imposing sentence - Age of accused - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5848.8

Sentencing - Considerations on imposing sentence - First offence - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5849.2

Sentencing - Considerations on imposing sentence - Reformation of accused - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5882

Sentence - Manslaughter - In 2008, the 18 year old accused and two or three other youths participated in a robbery in a Toronto park - During the robbery, the 17 year old victim was shot and killed - Although the accused knew a robbery was to take place and that some of the others had loaded guns, he was not the shooter and did not carry a gun - He surrendered to police, was charged with murder, and was convicted by a jury of manslaughter - No one else was ever charged in the shooting, as the accused refused to "snitch" on the others - The use of a firearm in the commission of manslaughter had a four year mandatory minimum sentence (Criminal Code, s. 236(a)) - The trial judge sentenced the accused to eight years' imprisonment, less 15 months' credit for pre-trial custody - The Ontario Court of Appeal allowed the accused's sentence appeal - The trial judge erred in finding that the use of a firearm, an essential element of the offence, was an aggravating factor - However, the sentence did need to reflect the use of a firearm during a robbery and in a city park, which undermined the community's sense of safety and freedom in public places - The accused's failure to "snitch" by naming the others involved was also not an aggravating factor - Where the trial judge erred in principle, the Court of Appeal's task was to determine the appropriate sentence - It was four years since the sentence was imposed - Fresh evidence, which was both relevant and credible, showed the accused's current changed character and successful rehabilitative steps - Considering all the evidence, including the current information, an appropriate sentence was six years' imprisonment, less 15 months' credit for pre-trial custody - See paragraphs 6 to 43.

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sentence - Considerations - Rehabilitation of accused pending appeal - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 6218

Sentencing - Appeals - Variation of sentence - Evidence on appeal (incl. fresh evidence) - [See Criminal Law - Topic 5882 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See Criminal Law - Topic 5882 ].

Cases Noticed:

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 31 O.R.(3d) 713 (C.A.), refd to. [para. 6, footnote 1].

R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90; 72 O.R.(3d) 1 (C.A.), refd to. [para. 6, footnote 1].

R. v. Rosen, [1976] O.J. No. 374 (C.A.), refd to. [para. 28].

R. v. Sipos (J.P.), [2014] 2 S.C.R. 423; 460 N.R. 1; 320 O.A.C. 76; 2014 SCC 47, refd to. [para. 35].

Counsel:

James Lockyer, Michael Lacy and Anida Chiodo, for the appellant;

Michael Bernstein, for the respondent.

This appeal was heard on October 16, 2015, before Strathy, C.J.O., Laskin and Gillese, JJ.A., of the Ontario Court of Appeal.

On December 7, 2015, Laskin, J.A., released the following judgment for the Court of Appeal.