R. v. Araya (N.), (2013) 312 O.A.C. 284 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Laskin, Gillese and Strathy, JJ.A.
• Citation: (2013), 312 O.A.C. 284 (CA),2013 ONCA 734
• Date: 19 July 2013
• Subject Matter: CRIMINAL LAW

R. v. Araya (N.) (2013), 312 O.A.C. 284 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. DE.007

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

(C54733; 2013 ONCA 734)

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

Ontario Court of Appeal

Laskin, Gillese and Strathy, JJ.A.

December 5, 2013.

Summary:

The accused was charged with second degree murder after a shooting in a park. He was found guilty on the basis of party liability under s. 21(2) of the Criminal Code, and sentenced to eight years in prison, less credit for the equivalent of 15 months' pretrial custody. He appealed against both his conviction and sentence.

The Ontario Court of Appeal, Strathy, J.A., dissenting, allowed the appeal against conviction and ordered a new trial. In the circumstances, it was not necessary to consider the sentence appeal. However, the court unanimously agreed that the sentence was predicated on an error in principle. Accordingly, had it been necessary to consider the sentence appeal, the court would have allowed it as well.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - The accused was charged with second degree murder after a robbery and shooting in a park - At the time of the shooting, the accused was 18 years old - At trial, he was 21 years old and his appearance had changed - The trial judge permitted the Crown to introduce two photographs of the accused (frontal head to toe shot and facial close-up) taken at the time of his arrest, five days after the shooting - A jury convicted the accused of manslaughter on the basis of party liability (Criminal Code, s. 21(2)) - The accused appealed - The Ontario Court of Appeal held that the trial judge did not err in admitting the photos - He did not err in holding that the photos had some probative value - They were also highly prejudicial - However, the fact that the appeal court might balance the photos' probative value and prejudicial effect differently was not a basis for intervening with the trial judge's exercise of discretion - The court held that the trial judge did err in his instruction to the jury regarding the photos - In his charge, he told the jury that they could consider how the accused looked in the photos as a piece of circumstantial evidence that the accused was in the park on the evening of the shooting - The instruction effectively invited the jury to treat an in-court, single photo lineup as one piece of circumstantial evidence that could be considered in determining whether the accused was in the park that evening and/or one of the men who participated in the robbery - This was fundamentally wrong and ran the risk of a serious miscarriage of justice - The court ordered a new trial - See paragraphs 1 to 52.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See Criminal Law - Topic 4361 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - [See Criminal Law - Topic 4361 ].

Criminal Law - Topic 5253

Evidence and witnesses - Identification - Proof of - [See Criminal Law - Topic 4361 ].

Criminal Law - Topic 5763

Punishments (sentence) - Particular offences - Manslaughter - The accused was charged with second degree murder after a shooting in a park - He was found guilty on the basis of party liability (Criminal Code, s. 21(2)) and sentenced to eight years in prison before credit for pretrial custody - He appealed against both his conviction and sentence - The Ontario Court of Appeal allowed the appeal against conviction and ordered a new trial - In the circumstances, it was not necessary to consider the sentence appeal - However, the court held that the sentencing judge erred in principle in treating use of a firearm as an aggravating factor when sentencing the accused for manslaughter - On a plain reading of s. 236 of the Criminal Code, the mandatory minimum punishment of four years' imprisonment for manslaughter was predicated on a firearm having been used in the commission of the offence - Given that the mandatory minimum sentence necessarily took into consideration that the death resulted from an offence committed with the use of a firearm, it was an error in principle to also treat use of a firearm simpliciter as an aggravating factor - This error appeared particularly significant here where the accused was not the shooter, his participation in the manslaughter was limited and unknown, and he was not in possession of a firearm - Accordingly, had it been necessary to consider the sentence appeal, the court would have allowed it as well - See paragraphs 52 to 55 and 284.

Criminal Law - Topic 5849.20

Sentencing - Considerations on imposing sentence - Use or possession of firearms - [See Criminal Law - Topic 5763 ].

Criminal Law - Topic 5882

Sentence - Manslaughter - [See Criminal Law - Topic 5763 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5763 ].

Cases Noticed:

R. v. Smierciak, [1947] 2 D.L.R. 156 (Ont. C.A.), refd to. [paras. 36, 172].

R. v. Sutton, [1970] 2 O.R. 358 (C.A.), refd to. [paras. 36, 175].

R. v. Goldhar (1941), 76 C.C.C. 270 (Ont. C.A.), refd to. [paras. 36, 173].

R. v. G.R. (1993), 61 O.A.C. 198; 80 C.C.C.(3d) 130 (C.A.), leave to appeal denied (1993), 160 N.R. 320; 83 C.C.C.(3d) vi (S.C.C.), refd to. [paras. 40, 152].

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1, dist. [paras. 50, 176].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 152].

R. v. Chenier (P.) et al. (2006), 207 O.A.C. 104; 205 C.C.C.(3d) 333 (C.A.), refd to. [para. 152].

R. v. Dooley (E.A.) (2009), 257 O.A.C. 150; 249 C.C.C.(3d) 449; 2009 ONCA 910, refd to. [para. 152].

R. v. Hay (L.) et al. (2013), 451 N.R. 34; 312 O.A.C. 201; 2013 SCC 61, refd to. [para. 157].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149; 467 W.A.C. 149; 2009 SCC 42, refd to. [para. 157].

R. v. James (R.) (2011), 287 O.A.C. 18; 283 C.C.C.(3d) 212; 2011 ONCA 839, refd to. [para. 164].

R. v. Ellis (C.), [2008] O.A.C. Uned. 52; 2008 ONCA 77, refd to. [para. 166].

R. v. Miaponoose (A.) (1996), 93 O.A.C. 115; 110 C.C.C.(3d) 445 (C.A.), refd to. [para. 172].

R. v. Tebo (K.) (2003), 172 O.A.C. 148; 175 C.C.C.(3d) 116 (C.A.), refd to. [para. 172].

R. v. Hibbert (K.R.), [2002] 2 S.C.R. 445; 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161; 2002 SCC 39, refd to. [para. 172].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 179].

R. v. Badiru (P.) (2012), 289 O.A.C. 74; 2012 ONCA 124, refd to. [para. 187].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 62 O.R.(3d) 263 (C.A.), refd to. [para. 187].

R. v. Pollock (R.) et al. (2004), 188 O.A.C. 37; 187 C.C.C.(3d) 213 (C.A.), refd to. [para. 188].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 213].

R. v. Glasgow (M.) (1996), 93 O.A.C. 67; 110 C.C.C.(3d) 57 (C.A.), refd to. [para. 225].

R. v. Ellard - see R. v. K.M.E.

R. v. K.M.E. (2003), 178 B.C.A.C. 199; 292 W.A.C. 199; 172 C.C.C.(3d) 28; 2003 BCCA 68, refd to. [para. 259].

R. v. Rose (E.) (2001), 143 O.A.C. 163; 53 O.R.(3d) 417 (C.A.), refd to. [para. 265].

R. v. Henderson (R.R.) (1999), 120 O.A.C. 99; 44 O.R.(3d) 628 (C.A.), refd to. [para. 266].

R. v. Levert (G.) (2001), 150 O.A.C. 208; 159 C.C.C.(3d) 71 (C.A.), refd to. [para. 279].

R. v. Bennett (M.) (2003), 177 O.A.C. 71; 67 O.R.(3d) 257 (C.A.), refd to. [para. 279].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 236(a) [para. 54].

Counsel:

Michael W. Lacy and Anida Chiodo, for the appellant;

Michael Bernstein, for the respondent.

This appeal was heard on July 19, 2013, by Laskin, Gillese and Strathy, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following decision on December 5, 2013, which was comprised of the following opinions:

Gillese, J.A. (Laskin, J.A., concurring) - see paragraphs 1 to 56;

Strathy, J.A., dissenting - see paragraphs 57 to 284.