R. v. Araya (N.), 2015 SCC 11

• Judge: McLachlin, C.J.C., Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 17, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2015 SCC 11;[2015] ACS no 11;(2015), 468 N.R. 114 (SCC);[2015] SCJ No 11 (QL);[2015] 1 SCR 581

R. v. Araya (N.) (2015), 468 N.R. 114 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. MR.003

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

(35669; 2015 SCC 11; 2015 CSC 11)

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

Supreme Court of Canada

McLachlin, C.J.C., Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

March 13, 2015.

Summary:

The accused was charged with second degree murder after a shooting in a park. He was found guilty of manslaughter 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. See 312 O.A.C. 284. The Crown appealed, asking that the manslaughter conviction be restored. In the alternative, the Crown argued that the majority of the Court of Appeal erred in failing to apply the curative proviso (Code, s. 686(1)(b)(iii)).

The Supreme Court of Canada allowed the appeal and restored the accused's conviction for manslaughter. The court remanded the matter to the Ontario Court of Appeal for consideration of the sentencing appeal.

Criminal Law - Topic 2747

Attempts, conspiracies, accessories and parties - Parties to offences - What constitutes a party - [See Criminal Law - Topic 5510 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was charged with second degree murder after a robbery and shooting in a park - A jury convicted the accused of manslaughter on the basis of party liability - He appealed - The accused had had a conversation with his high school English teacher (Browne) on October 7, 2008, four days after the shooting - He disputed Browne's version of their conversation - The accused argued that the jury instructions were flawed respecting Browne's testimony - He argued that the trial judge should have (1) instructed the jury that it was improper for the Crown to ask the accused to comment on his teacher's motive to lie, given their positive relationship; and (2) explained that the accused had no obligation to explain why others testified the way they did - He said that not only did the trial judge fail to do anything when the incident occurred, he did not say anything about it in his charge and did not caution the jury against attributing undue weight to the absence of evidence that Browne had a motive to fabricate - A majority of the Ontario Court of Appeal allowed the appeal on another ground and ordered a new trial - Strathy, J.A., in dissent, rejected the submission - The impropriety of asking the accused to comment on the veracity of a Crown witness was trite law; doing so could shift the burden of proof from the Crown to the accused, thereby undermining the presumption of innocence and the doctrine of reasonable doubt - However, the trial judge did exactly what he was supposed to do - Even though the defence did not object, he acted as a gatekeeper and told the Crown to leave it for argument - The defence did not request an instruction in the charge - The trial judge properly instructed the jury, repeatedly, on the presumption of innocence and burden of proof - It was made clear to the jury that the accused had no obligation to prove his innocence or explain why others testified as they did - The Supreme Court of Canada agreed with these reasons of Strathy, J.A., on a Crown appeal - See paragraphs 69 and 70.

Criminal Law - Topic 4351.2

Procedure - Charge or directions - Judge or jury alone - Directions regarding the presumption of innocence - [See Criminal Law - Topic 4351 ].

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 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 - He appealed - The Court of Appeal allowed the appeal and ordered a new trial - However, the court held that the trial judge did not err in admitting the photos or in holding that they had some probative value - On a Crown appeal, the accused submitted that the photos were not relevant to a live issue at trial, and thus had been improperly admitted, because it was "apparent" that he did not dispute that his appearance had changed significantly between 2008 and 2011 - The Supreme Court of Canada held that, even if it accepted this implied concession, the issue of whether the accused's appearance had changed was distinct from the issue of whether his appearance in 2008 fit within the eyewitness descriptions - The accused had not conceded the latter - Accordingly, there was no reason to challenge the trial judge's finding that the photographs were relevant for this purpose - Regarding the weighing of probative value and prejudicial effect, given the deference afforded to trial judges on questions of balancing probative effect against prejudice, there was no reason to disturb the finding that the photos were admissible - See paragraphs 31 to 38.

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 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 - He appealed - The Court of Appeal allowed the appeal and ordered a new trial - The court held that the trial judge erred in his instruction to the jury regarding the photos - The Crown appealed - The Supreme Court of Canada allowed the appeal and restored the accused's conviction - It was important to take a functional and contextual approach to reviewing jury instructions on appeal - The court reviewed the relevant portions of the jury charge - The court held that the risk of a juror actually using the photographs as the basis for an impermissible line of reasoning was appropriately minimized both by the fact that Crown counsel did not urge the jury to adopt impermissible lines of inference and by the trial judge's charge to the jury - See paragraphs 39 to 54.

Criminal Law - Topic 4372

Procedure - Jury charge - Directions regarding alibi evidence or explanation by accused - The accused was charged with second degree murder after a robbery and shooting in a park - A jury convicted the accused of manslaughter on the basis of party liability - Cook had provided the accused with an alibi - On appeal, the accused argued that the trial judge erred in failing to caution the jury concerning how to use disbelief of the accused's alibi - A majority of the Ontario Court of Appeal allowed the appeal on other grounds and ordered a new trial - Strathy, J.A., in dissent, rejected the argument - He found that the cross-examination of Cook and of the accused was directed to their credibility - It was not aimed at establishing that the accused's alibi had been fabricated - The Crown did not suggest to any witness or to the jury that the alibi had been fabricated - Defence counsel did not request an instruction on the issue of fabricated alibi and there was no objection to the Crown's closing in that regard, nor to the trial judge's charge - The Supreme Court of Canada agreed with these reasons of Strathy, J.A., on a Crown appeal - See paragraphs 69 and 70.

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statements - The accused was charged with second degree murder after a robbery and shooting in a park - A jury convicted the accused of manslaughter on the basis of party liability - He appealed - The Court of Appeal allowed the appeal and ordered a new trial - The Crown appealed - The accused had had a conversation with his high school English teacher (Browne) on October 7, 2008, four days after the shooting - He disputed Browne's version of their conversation - The accused argued that the jury instructions were flawed respecting Browne's testimony - The Supreme Court of Canada rejected the argument - "Given the possible interpretations of Mr. Browne's police statement and testimony, and of his testimony regarding the meaning of the inconsistencies, I do not find that the trial judge's instruction regarding how the jury was to consider Mr. Browne's evidence amounted to misdirection. Where there were possible inconsistencies between Mr. Browne's police statement and trial testimony, the jury was properly instructed to evaluate these differences. Even if one were to find some amount of interpretive spin in Mr. Browne's testimony about [the accused's] statements on October 7, 2008, ... the trial judge's jury instructions also expressly warned the jury about the dangers of such testimony. The jury was instructed that it was 'what Mr. Browne was told that is relevant, not what Mr. Browne thinks [the accused] meant by what he said'. Accordingly, I am not persuaded that the trial judge misdirected the jury in relation to Mr. Browne's evidence." - See paragraphs 5, 64 and 65.

Criminal Law - Topic 4377.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding reliability of witnesses' testimony - [See Criminal Law - Topic 4375.2 ].

Criminal Law - Topic 4378

Procedure - Charge or directions - Jury or judge alone - Judicial review of - [See second Criminal Law - Topic 4950 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused was charged with second degree murder - A jury convicted him of manslaughter on the basis of party liability - He appealed - He submitted that the jury instructions were flawed respecting the testimony of Browne, the accused's high school English teacher, with whom he spoke on October 7, 2008, four days after the shooting - The accused disputed Browne's version of their conversation - He argued that the trial judge's instruction did not go far enough to inform the jury that they could not use evidence of the accused's demeanour when confronted with allegations of a criminal charge as evidence of consciousness of guilt - A majority of the Ontario Court of Appeal allowed the appeal on another ground and ordered a new trial - Strathy, J.A., in dissent, rejected the submission - In the trial judge's charge, he reminded the jury that they could not draw an adverse inference from the accused's exercise of his right to silence or following the advice of counsel - There was no dispute that evidence of an accused's demeanour in the face of criminal allegations was frequently unreliable and its prejudicial effect might outweigh its probative value - However, the Crown's cross-examination on the issue went to credibility, not demeanour - Browne testified that he had told the accused: "Nahoor, you realize that I have to do something with this [information]?" - Yet the accused testified that he did not draw a link between the warrant for his arrest and the made-up story he had told Browne - On the night he surrendered to the police, he did not tell his friends Cook and Kenny, or Kenny's mother that it was all a big mistake and that Browne had misinterpreted his story - This all happened before he sought legal advice and his lawyer allegedly told him not to discuss the evidence with anyone - The Crown's questions and the accused's answers went directly to credibility - The trial judge did not err in admitting this evidence, and he properly instructed the jury on the accused's right to silence and reliance on counsel's advice - The Supreme Court of Canada agreed with these reasons of Strathy, J.A., on a Crown appeal - See paragraphs 69 and 70.

Criminal Law - Topic 4381

Procedure - Charge or directions - Jury or judge alone - Misdirection - Effect of - The accused (Araya) was charged with second degree murder after a robbery and shooting in a park - A jury convicted the accused of manslaughter on the basis of party liability - He appealed - The Court of Appeal allowed the appeal and ordered a new trial - The Crown appealed - The accused argued that the jury instructions were flawed respecting the testimony of Browne, the accused's high school English teacher, with whom he spoke at school four days after the shooting - The Supreme Court of Canada held that it was for the jury to conclude whether this conversation amounted to a confession - The court stated that "... the trial judge ... did not himself label Mr. Araya's statements as confessions. Indeed, he repeatedly described the school exchange as a 'conversation', rather than a confession, elsewhere in the charge. In the portion of the jury instructions emphasized by Mr. Araya, the trial judge remarked that '[i]t is submitted that ... Mr. Araya confessed' (emphasis added). This statement amounts to a reiteration of the Crown's position, which was that the school conversation should be viewed as a confession of guilt. When viewed in light of the trial judge's other cautions to the jury, including the caution that Mr. Browne's testimony should be evaluated only for its evidence of what Mr. Araya said, rather than Mr. Browne's interpretation of his statements, as well as the caution that confession to mere presence at the scene was not sufficient to establish guilt, I do not find that the single use of the word 'confession' in describing the Crown's submissions would have been so 'toxic' an instruction as to call for a correcting instruction." - See paragraphs 5, 67 and 68.

Criminal Law - Topic 4391

Procedure - Charge or directions - Jury or judge alone - Redirection or further direction - [See Criminal Law - Topic 4381 ].

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt (incl. consciousness of guilt) - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 4950

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

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - 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 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 - He appealed - The Court of Appeal allowed the appeal and ordered a new trial - The court held that the trial judge erred in his instruction to the jury regarding the photos - The Crown appealed - The Supreme Court of Canada allowed the appeal and restored the accused's conviction - Citing its own prior decisions, the court stated that "When considering an alleged error in a trial judge's jury instructions, '[a]n appellate court must examine the alleged error in the context of the entire charge and of the trial as a whole' ... . Further, trial judges are to be afforded some flexibility in crafting the language of jury instructions ... . While trial judges must seek to ensure that their instructions adequately prepare the jury for deliberation, the standard for jury instructions is not perfection. Appellate review of jury instructions is meant to 'ensure that juries are properly - not perfectly - instructed' ... . This Court has emphasized that the charge generally should not be 'endlessly dissected and subjected to minute scrutiny and criticism' ... Appellate courts should not examine minute details of a jury instruction in isolation. 'It is the overall effect of the charge that matters' ... ." - See paragraph 39.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - 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 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 - He appealed - The Court of Appeal allowed the appeal and ordered a new trial - The court held that the trial judge erred in his instruction to the jury regarding the photos - The Crown appealed - The Supreme Court of Canada allowed the appeal and restored the accused's conviction - The court agreed "with the Crown that the strength of its case was not a proper consideration in evaluating the adequacy of the jury instructions. As this Court observed in R. v. Hibbert, 2002 SCC 39 ..., the proper order of inquiry in evaluating jury instructions requires judges first to look to the adequacy of the instructions. Only then, if they are found inadequate, must the nature and effect of the error in the instructions be determined with reference to the strength of the Crown case, in the context of the curative proviso framework of s. 686(1)(b)(iii)." - See paragraph 53.

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - [See first Criminal Law - Topic 4361 ].

Criminal Law - Topic 5209

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

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - The Supreme Court of Canada stated that "It is a basic principle of the law of evidence that the probative value of a particular piece of evidence depends on the context in which it is proffered. In assessing whether evidence was admissible at trial, the trial judge's weighing of probative value and prejudicial effect is entitled to significant deference." - See paragraph 31.

Criminal Law - Topic 5253

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

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The accused was charged with second degree murder after a robbery and shooting in a park - A jury convicted him of manslaughter on the basis of party liability (Criminal Code, s. 21(2)) - On appeal, the accused argued that the trial judge erred in failing to give a Vetrovec caution respecting the evidence of one eyewitness (Athens) and properly instruct the jury regarding party liability - Athens, a friend of the deceased, was one of the young people present in the park when intruders arrived - The accused claimed that Athens's evidence had particular significance because he was the only witness who said that all of the intruders participated in the robberies - He claimed that without Athens's evidence, there was no basis to convict him as a participant in a common unlawful purpose under s. 21(2) - A majority of the Ontario Court of Appeal allowed the appeal on another ground and ordered a new trial - Strathy, J.A., in dissent, rejected the arguments - The trial judge had reviewed the accused's arguments that: (a) Athens was of unsavoury character due to his youth record and his adult convictions; (b) he fled the scene because he was on bail, out past curfew and in the company of a girlfriend with whom he was not supposed to have contact; (c) he did not speak to the police until he had received assurances that he would not be charged with breaching his bail; and (d) he was an important Crown witness - The trial judge's instruction concerning Athens' evidence was thorough, effective and fair - A full Vetrovec warning was not required - Further, there was evidence apart from Athen's evidence on which the jury could find that the accused was a party to the offence under s. 21(2) - The Supreme Court of Canada agreed with these reasons of Strathy, J.A., on a Crown appeal - See paragraphs 69 and 70.

Cases Noticed:

R. v. Hay (L.) et al., [2013] 3 S.C.R. 694; 451 N.R. 34; 312 O.A.C. 201; 2013 SCC 61, refd to. [para. 23].

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. 31].

R. v. Rodney, [1990] 2 S.C.R. 687; 112 N.R. 167, refd to. [para. 32, footnote 1].

R. v. Proctor (1992), 75 Man.R.(2d) 217; 6 W.A.C. 217; 69 C.C.C.(3d) 436 (C.A.), dist. [para. 35].

R. v. Goldhar (1941), 76 C.C.C. 270 (Ont. C.A.), dist. [para. 36].

R. v. Smierciak, [1947] 2 D.L.R. 156 (Ont. C.A.), dist. [para. 36].

R. v. Jaw (S.G.), [2000] 2 S.C.R. 745; 464 A.R. 208; 393 N.R. 246; 2009 SCC 42, refd to. [para. 39].

R. v. Avetysan (A.) (2000), 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338; 2000 SCC 56, refd to. [para. 39].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 39].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 39].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 39].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 52].

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. 53].

R. v. Samuels (J.G.) (2005), 198 O.A.C. 109; 196 C.C.C.(3d) 403 (C.A.), refd to. [para. 67].

Counsel:

Michael Bernstein, for the appellant;

James Lockyer and Richard Posner, for the respondent.

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant;

Lockyer Campbell Posner, Toronto, Ontario, for the respondent.

This appeal was heard on October 17, 2014, by McLachlin, C.J.C., Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada. Rothstein, J., delivered the following decision for the court in both official languages on March 13, 2015.