



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 Justices dissent, the Crown appealed as of right
    to the Supreme Court of Canada. In March of this year, the Supreme Court allowed
    the Crowns appeal and restored Arayas 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
    judges 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 Arayas 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 Arayas
    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 Cikovics group, and robbed them at
    gunpoint.  According to several witnesses, the guns were brandished openly at
    the victims. And Cikovics 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 friends house when the shooting took place. The jury
    rejected his alibi and convicted him of manslaughter.

(b)

The trial judges findings about Arayas participation

[15]

Based
    on the evidence and the jurys verdict, the trial judge made the following
    findings about Arayas 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 Crowns 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)

Arayas 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.
    Arayas father came to Canada briefly, but returned to Saudi Arabia. He
    provided little support for his wife and children and died in 2003.

[17]

Arayas
    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, Childrens Aid took him from his mothers
    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 judges error in principle and the relevance of
    Arayas 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 Arayas 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 victims friends was
    traumatic, and the killing caused devastation for the victims 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.



Im 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 judges 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 appellants 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 communitys 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 Arayas 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 killers 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
    accuseds 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
    Arayas 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.

·

Arayas 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 Arayas 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: Arayas
    changed character since his arrest and conviction; his academic and
    professional achievements; the opinions of his teachers; and his conduct while
    in custody.

·

Arayas 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.

·

Arayas 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 Arayas 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
    Nahoors active curiosity, work ethic, and overall drive will serve him well
    not only over his university career but also as he moves forward.

·

Arayas 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), 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 Arayas
    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 Crowns 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 Arayas 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 Arayas 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
    Arayas 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),
    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.


