COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Araya, 2015 ONCA 854
DATE: 20151207
DOCKET: C54733
Strathy C.J.O., Laskin and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nahoor Araya
Appellant
James Lockyer, Michael Lacy and Anida Chiodo for the appellant
Michael Bernstein, for the respondent
Heard: October 16, 2015
On appeal from the sentence imposed on December 8, 2011 by Justice John B. McMahon of the Superior Court of Justice, sitting with a jury.
Laskin J.A.:
A. Overview
[1] This is a rather unusual sentence appeal.
[2] In October 2008, Nahoor Araya and two or three other youths participated in a robbery in a Toronto park. During the robbery a 17-year-old boy was shot and killed. Araya was not the shooter and he did not even carry a gun. He was 18 at the time.
[3] Araya surrendered to the police and was charged with murder. No one else has ever been charged in the shooting. In November 2011, after a four-week jury trial, Araya was found guilty of manslaughter. Section 236(a) of the Criminal Code, R.S.C. 1985 c. C-46, requires a mandatory minimum sentence of four years’ imprisonment for the use of a firearm in the commission of manslaughter. In December 2011, the trial judge sentenced Araya to eight years’ imprisonment (less 15 months for pre-sentence custody).
[4] Araya appealed both his conviction and sentence to this court. A majority of this panel allowed the conviction appeal and ordered a new trial; Strathy C.J.O. dissented: R. v. Araya, 2013 ONCA 734, 305 C.C.C. (3d) 14. All three panel members agreed that in sentencing Araya, the trial judge erred in principle: despite the mandatory minimum required by s. 236(a) when a firearm is used, he also treated the use of a firearm as an aggravating consideration justifying a sentence beyond this minimum.
[5] Relying on the Chief Justice’s dissent, the Crown appealed as of right to the Supreme Court of Canada. In March of this year, the Supreme Court allowed the Crown’s appeal and restored Araya’s conviction for manslaughter: R v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581. The Supreme Court sent the case back to this court to consider the sentence appeal.
[6] Thus, we are sentencing Araya seven years after the shooting and nearly four years after the trial judge sentenced him. And because the trial judge erred in principle, the eight-year sentence he imposed is not entitled to deference[^1]: we must impose the sentence we think fit. Araya submits that a fit sentence is in the range of four to six years; the Crown submits that, despite the trial judge’s error in principle, an eight-year sentence less pre-sentence custody is still a fit sentence.
[7] In deciding a fit sentence we must address two specific questions raised by the parties. First, should we admit the fresh evidence tendered by Araya in support of his appeal? Araya submits that it is admissible because it speaks to his current character and shows his ongoing efforts to rehabilitate himself. The Crown opposes the admission of the fresh evidence: the Crown submits that it has been filed too late and that it adds little to the mitigating evidence that was before the trial judge.
[8] Second, should we treat Araya’s alleged failure to cooperate with the police and to disclose the identities of the other assailants as an aggravating consideration on sentence?
[9] Araya continues to maintain that he was not even at the park and that he does not know the names of those who participated in the robbery and shooting. But he also submits that though cooperation with the police may be a mitigating consideration on sentence, a failure to “snitch” can never be an aggravating consideration. The Crown submits that in sentencing Araya we should treat his continuing refusal to cooperate with the police as an aggravating consideration.
[10] For the reasons that follow, I would admit the fresh evidence, hold that Araya’s refusal to “snitch” is not an aggravating consideration, and sentence Araya to six years’ imprisonment (less the agreed on 15 months for pre-sentence custody).
B. Additional Background
(a) The Robbery and Shooting
[11] On the evening of October 3, 2008, Boris Cikovic and a group of his friends were drinking and socializing in and around the tennis courts in Buttonwood Park in the west end of Toronto. At around 10:30 p.m., a group of three or four young men came into the park. Some of them were wearing bandanas or hoodies or had their hats pulled down low to conceal their identities. At least one had a gun.
[12] This group of young men confronted some of Cikovic’s group, and robbed them at gunpoint. According to several witnesses, “the guns were brandished openly at the victims”. And Cikovic’s knapsack was taken.
[13] At some point during the robbery Cikovic resisted and used a taser on one of his assailants. The assailants then fled, and Cikovic chased them. One of the assailants turned around and shot Cikovic, killing him. The shooter has never been apprehended.
[14] Araya testified at his trial and led an alibi defence. He claimed he was with his girlfriend at another friend’s house when the shooting took place. The jury rejected his alibi and convicted him of manslaughter.
(b) The trial judge’s findings about Araya’s participation
[15] Based on the evidence and the jury’s verdict, the trial judge made the following findings about Araya’s participation in the shooting:
Araya did not shoot Cikovic and did not have a gun in his possession that night.
He agreed to participate in a robbery and thus was a party to it under s. 21(2) of the Criminal Code.
He “knew his confederates were armed with a gun or guns” and “knew that a gun was loaded”.
Araya knew, or ought to have known, “that it was likely or probable that the shooter would put any of the people in the tennis court at risk of some harm or injury that was more than brief or minor in nature.”
Contrary to the Crown’s contention on appeal that the robbery was premeditated, it “had not been planned for a long time.” The assailants did not originally intend to come into the tennis court, but entered following their verbal confrontation with the victim and his friends.
(c) Araya’s upbringing to the time of trial
[16] Araya was born in Saudi Arabia but soon left for Canada with his mother and older brother to escape the Gulf War. In 1991, they arrived in Toronto as refugees. Araya’s father came to Canada briefly, but returned to Saudi Arabia. He provided little support for his wife and children and died in 2003.
[17] Araya’s mother struggled to make ends meet while putting herself through school. She was a strict disciplinarian, and her views and values often clashed with those of her two sons. When Araya was 13, Children’s Aid took him from his mother’s care and placed him in a series of foster homes. When he was 16, he returned to live with his mother. Although his relationship with his mother improved, at times she temporarily ejected him from her home. In October 2008, when the shooting took place, Araya was in one of these “homeless” periods.
[18] Araya was released on bail pending his trial. During that time he finished high school and was admitted to Humber College where he took classes online. By the time of trial, he was one year away from finishing his degree in general arts and science.
C. Discussion
[19] A fit sentence for Araya must be proportionate to the gravity of his offence and to his moral blameworthiness. And it must be assessed in the context of the purposes and principles of sentencing in s. 718 of the Criminal Code. I agree with the trial judge that in this case the objectives of “paramount concern” are general deterrence and denunciation. However, because Araya is a youthful offender, rehabilitation should also be given significant weight.
[20] I turn now, as the trial judge did, to consider the aggravating and mitigating considerations in this case. In discussing the aggravating considerations, I will deal with the trial judge’s error in principle and the relevance of Araya’s failure to “snitch”. In discussing the mitigating considerations, I will address why I would admit the fresh evidence and its impact.
[21] The starting point for Araya’s sentence is four years’ imprisonment. The ultimate question is to what additional time in prison, if any, should Araya be sentenced?
(a) The aggravating considerations found by the trial judge
[22] The trial judge found three significant aggravating considerations.
The killing took place during the commission of a robbery.
The effect of the killing on the victim’s friends was “traumatic”, and the killing caused “devastation” for the victim’s family. Boris Cikovic was an only child. His parents must now “live the best they can with the nightmare of losing an innocent son to a senseless gun killing.” In the words of Boris’ mother:
My life, my joy, my energy, my future, my dreams, hopes and worries were buried with Boris… I would give everything in this world to be able to bring him back and get my son back.
I’m doing what I have to, struggling every day and night, with my own self and all kinds of nightmares. I have counselling on a weekly basis, medications on a daily basis, that help me make it through the day… Life goes on, the world still exists, but I no longer participate in it. I never stop grieving for my son, what he was and what he could have been … Three years have passed since he was taken from me. Time helps me with just one thing, with the painful realization that I miss Boris more and more with every breath I take.
- The offence involved the use of a firearm, even though Araya was neither the shooter nor armed.
[23] I obviously accept the trial judge’s findings on the first two aggravating considerations. The third requires some discussion.
(b) The use of a firearm as an aggravating consideration
[24] This court held that the use of a firearm by itself cannot be an aggravating consideration in sentencing Araya because s. 236(a) of the Code already takes into account that a firearm was used in the commission of the manslaughter. In her majority reasons, Gillese J.A. put it this way, at paras. 52-55:
In light of my conclusion on the conviction appeal, strictly speaking I need not address the sentence appeal. Nonetheless, there is utility in addressing the appellant’s submission that the sentencing judge erred in principle in treating use of a firearm as an aggravating factor when sentencing the appellant for manslaughter.
In my view, the appellant is correct in this submission.
The mandatory minimum sentence for manslaughter, where a firearm is used in the commission of the offence, is four years’ imprisonment: s. 236(a) of the Criminal Code. Section 236 reads as follows:
Manslaughter – Every person who commits manslaughter is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
In my view, on a plain reading of s. 236, the mandatory minimum punishment of four years’ imprisonment for manslaughter is predicated on a firearm having been used in the commission of the offence. Given that the mandatory minimum sentence necessarily takes into consideration that the death resulted from an offence committed with the use of a firearm, it is an error in principle to also treat use of a firearm simpliciter as an aggravating factor. This error appears particularly significant in this case where the appellant was not the shooter, his participation in the manslaughter was limited and unknown, and he was not in possession of a firearm.
[25] Strathy C.J.O. agreed. He wrote, at para. 284:
As my colleagues would allow the conviction appeal, I do not propose to address the sentence appeal, except to say that I respectfully agree with my colleague that the trial judge should not have treated the use of a firearm as an aggravating factor, because the potency of that factor was spent in the four year mandatory minimum sentence applicable to the offence.
[26] Although the use of a firearm itself cannot be an aggravating consideration on a sentence for manslaughter under s. 236(a) of the Code, the circumstances surrounding its use can aggravate the sentence. Here, two circumstances are aggravating: (1) the firearm was used during a robbery and (2) the firearm was used in a city park, thus undermining the community’s sense of safety and freedom in public places. The sentence we impose should reflect these two circumstances[^2].
(c) Is a failure to “snitch” an aggravating consideration?
[27] The police asked for Araya’s help in their investigation and specifically asked him to identify the assailants. Araya claimed he did not know who they were because he was not at the park when the shooting occurred. Of course, the jury found otherwise.
[28] So the Crown argues that Araya knows who shot Cikovic and that his failure to disclose the killer’s and other assailants’ identities to the police should be an aggravating consideration on sentence. Araya argues that a failure to “snitch” cannot aggravate his sentence. This court addressed this very issue nearly 40 years ago in R. v. Rosen, [1976] O.J. No. 374. Dubin J.A. said succinctly, at para. 1:
It is a well-established principle of sentencing that the co-operation of an accused upon his arrest in the continuing investigation of the crime for which he has been arrested is a factor which may be taken into consideration in mitigation of the sentence to be imposed. It does not follow, however, that the failure of the accused to so co-operate is an aggravating factor to be taken into consideration in imposing a sentence greater than the sentencing tribunal would otherwise deem appropriate for the offence.
[29] An accused’s failure to cooperate with the police is not, therefore, an aggravating consideration on sentence. There are at least two reasons why that is a sound principle. First, to say otherwise risks the prospect of false accusations. Second, it would likely put many accused who are being sent to the penitentiary in a difficult situation: either they “snitch” and risk danger while in custody, or they do not “snitch” and risk their sentence being increased for not doing so.
[30] In the present case, Araya claims he is being asked to do something he cannot do. Even if that is not so, we cannot, because of his unwillingness to cooperate with the police, disregard all his efforts to rehabilitate himself. I now turn to those efforts and to the considerations that should mitigate his sentence.
(d) The mitigating considerations found by the trial judge
[31] Because he maintains his innocence, Araya cannot rely on remorse or an acknowledgement of harm to the victim to reduce his sentence. Nor, as I have said, can he rely on cooperation with the police. Still, the mitigating considerations found by the trial judge and enhanced by the fresh evidence lend powerful support to Araya’s submission that an appropriate sentence is in the range of four to six years.
[32] The trial judge found eight mitigating considerations.
Araya was youthful, only 18 when he committed this offence.
He had no previous youth or criminal record.
At the time of the offence, he was going to high school and working part-time.
While on bail, he continued his education and was one year short of graduating from college.
He had strong support within the community. Letters written by members of his family, teachers, professors, and friends showed that Araya successfully continued his education, had no further trouble with the law, and was a person of good character. Indeed his one criminal act, though serious and tragic, was out of character.
Araya served about seven and a half months of pre-trial custody, for which he was entitled to credit on a two for one basis, thus amounting to 15 months.
Araya’s culpability was less than that of the shooter. Although Araya participated in a robbery knowing one or more of his confederates was armed with a gun, the robbery had not been planned for long and Araya was neither the shooter nor had a gun.
The pre-sentence report on Araya was favourable. The report noted his “difficult family dynamics” and the positive steps he had taken within the community and to further his education.
(e) Is the fresh evidence admissible?
(i) The fresh evidence
[33] The fresh evidence consists of six sworn affidavits, including one by Araya on which he was examined, and four supporting letters. Several of the affiants gave evidence before the trial judge. The fresh evidence, however, speaks to Araya’s character and conduct after his original sentencing hearing and even since his appeal was considered by this panel two years ago. As Mr. Lockyer said in his sentencing submissions, the fresh evidence is akin to an updated pre-sentence report.
[34] I group the fresh evidence into four categories: Araya’s changed character since his arrest and conviction; his academic and professional achievements; the opinions of his teachers; and his conduct while in custody.
Araya’s changed character. All the fresh evidence shows that Araya has become a mature and responsible young adult. His mother may have described him best: “In the last seven years, I have seen him transform from a rebellious teenager into a mature, responsible, kind, and caring young man.”
Araya’s academic and professional achievements. Araya graduated from Humber College in 2012 and transferred his credits to York University. In the 2014-15 academic year, he achieved an “A” average and participated in several campus clubs. He also started a computer programming business and spent three months working part-time for a friend in the technology sector.
The opinions of his teachers. Three of the teaching assistants who led Araya’s seminar classes wrote letters of support. Each wrote positively about Araya. For example, his teacher in the Canadian Politics course wrote: “Nahoor has been an excellent student and has demonstrated an engaged and active curiosity in the class material… I think the combination of Nahoor’s active curiosity, work ethic, and overall drive will serve him well not only over his university career but also as he moves forward.”
Araya’s conduct while in custody. Araya surrendered into custody on March 13, 2015, when the Supreme Court of Canada released its decision. He has been in custody ever since, initially at Joyceville and then at Beaver Creek. While at Joyceville he obtained a job as an office cleaner, considered within the institution to be a position of trust. At Beaver Creek he has applied for a paid position as a tutor of other inmates in computer courses.
(ii) The test
[35] The admission of fresh evidence on a sentence appeal is governed by the four Palmer criteria of due diligence, relevance, credibility, and impact on the result: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 29. In determining whether to admit fresh evidence on an appeal against sentence, an appellate court must apply these criteria in the context of two competing interests: the desire to have current information about the offender and the importance of finality. In Sipos, Cromwell J. discussed these competing interests, at para. 30:
Fresh evidence addressing events that have occurred between the time of sentencing and the time of the appeal may raise difficult issues which bring competing values into sharp relief. On one hand, we must recognize, as Doherty J.A. put it in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, at para. 166, that “[a]ppeals take time. Lives go on. Things change. These human realities cannot be ignored when the Court of Appeal is called upon to impose sentences well after the event.” However, we must equally pay attention to the institutional limitations of appellate courts and the important value of finality.
[36] And Cromwell J. recognized the undesirability of a fixed rule for when fresh evidence should be admitted on a sentence appeal, at para. 31:
Given the almost infinite variety of circumstances that may arise, it is neither desirable nor possible to formulate any hard and fast, detailed rules about the sorts of after-the-fact evidence that should or should not be considered in all cases. The abundant appellate jurisprudence cannot be reduced to a tidy set of rules, but rather reflects the courts’ attempts to balance these at times competing values in light of particular and widely varying sets of circumstances. [Citations omitted].
(iii) Application of the test
[37] Here the fresh evidence is relevant and credible. But the Crown submits that we should not admit it for two reasons. First, it does not meet the due diligence requirement of the Palmer test because it could have been filed on Araya’s 2013 appeal before this panel. And second, it could have no effect on the result because it adds little to the extensive evidence of mitigation before the trial judge.
[38] I do not accept the Crown’s submission. I suppose some of the fresh evidence could have been put before the panel when we heard this appeal in July 2013. But that was over two years ago, and without the fresh evidence we would be left with an incomplete picture of Araya’s character today. And, in my opinion, this fresh evidence can reasonably be expected to have affected the sentence imposed on Araya. I would thus admit it.
[39] Two important considerations in my decision to admit the fresh evidence are the nature of our task and the passage of time. This is not the usual sentence appeal where we must give deference to the sentence imposed by the trial judge. Instead, we must determine a fit sentence for Araya. And we must do so nearly four years after he was sentenced by the trial judge and over two years after this panel heard his appeal. Because of these two considerations, the interest in finality has less weight than the desirability of having current information about the offender. Doherty J.A.’s comments in Hamilton, at para. 166 – and quoted by Cromwell J. in Sipos, at para. 30 – are especially apt here: “Appeals take time. Lives go on. Things change. These human realities cannot be ignored when the Court of Appeal is called upon to impose sentences well after the event.”
[40] We can now only impose a fit sentence if we have, in addition to the evidence at his original sentencing hearing, a complete record of Araya’s activities since that time and of his character today. For these reasons, I would admit the fresh evidence.
(f) A fit sentence
[41] The circumstances surrounding the use of the firearm in this case call for a sentence above the mandatory minimum of four years’ imprisonment. But the mitigating evidence – despite the absence of remorse and of cooperation with the police – is strong.
[42] After his arrest and conviction, Araya could have gone down one of two paths: a path in which he continued to clash with the law or a path in which he tried to rehabilitate himself. He chose the second path. And the evidence, especially the fresh evidence, shows that he has excelled in his rehabilitation.
[43] I would impose a sentence of six years’ imprisonment less the agreed on pre-sentence custody of 15 months. Six years strikes an appropriate balance between the aggravating and mitigating considerations applicable to Araya and his offence.
D. Conclusion
[44] I would grant leave to appeal sentence, allow the sentence appeal, and reduce Araya’s sentence from eight years’ imprisonment to six years’ imprisonment (less 15 months’ credit for pre-sentence custody).
Released: December 7, 2015 (“G.S.”)
“John Laskin J.A.”
“I agree. G.R. Strathy C.J.O.”
“I agree. E.E. Gillese J.A.”
[^1]: R. v. Rezaie (1996), 31 O.R. (30) 713 (Ont. C.A.) at 719; and R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (Ont. C.A.) at para. 164.
[^2]: Whether the type of firearm – in this case, a handgun – can be an aggravating consideration was not argued before us at either hearing of the sentencing appeal. This issue should be decided in a case where it is raised by the parties.