In R. v. Araya, the Ontario Court of Appeal completed its review of a sentence for manslaughter nearly four years to the day from when the sentence was originally imposed. To borrow a phrase from Justice Laskin, the case is a “rather unusual sentence appeal” both for its procedural history and the Court’s discussion on admitting fresh evidence in a sentencing appeal.
When Mr. Araya was 18 years old, he participated in a robbery which resulted in the shooting death of a 17-year-old boy. Mr. Araya was convicted of manslaughter in November 2011 and sentenced to eight years’ imprisonment, less 15 months for time served in pre-trial custody.
Mr. Araya appealed both his conviction and his sentence to the Ontario Court of Appeal, where the majority allowed the conviction appeal and ordered a new trial. Chief Justice Strathy, dissenting, would have dismissed the conviction appeal. Despite their disagreement on the conviction appeal, however, all three judges agreed that, had the issue needed to be decided, they would have concluded that the trial judge erred in principle in sentencing Mr. Araya.
In light of Chief Justice Strathy’s dissent, the Crown appealed to the Supreme Court of Canada as of right. On March 13, 2015, the Supreme Court restored the conviction and remanded the matter back to the Court of Appeal to consider Mr. Araya’s sentence appeal.
Standard of Review
Writing for the Court, Justice Laskin affirmed the panel’s previous conclusion that the trial judge erred in principle in sentencing Mr. Araya. Under s.236(a) of the Criminal Code, the use of a firearm during the commission of manslaughter mandates a four year minimum sentence. Since s.236(a) already takes into account the fact that a firearm was used in the commission of manslaughter, the trial judge erred in treating it as an aggravating factor justifying a sentence beyond the mandatory minimum.
As a result of this error in principle, Justice Laskin held that the trial judge’s sentence was not entitled to deference and that the Court must, instead, impose the sentence it thinks fit. And as one of its tasks in determining a fit sentence, the Court first had to determine whether or not to admit fresh evidence relating to Mr. Araya’s current character.
Admission of Fresh Evidence
Mr. Araya asked the Court to admit six affidavits which spoke to his character and conduct following his original sentencing hearing and after his first appeal was considered by the Court two years ago. Justice Laskin referred to the fresh evidence as “akin to an updated pre-sentence report”, and divided it into four categories: evidence going towards Mr. Araya’s changed character; evidence of Mr. Araya’s academic and professional achievements; the opinions of Mr. Araya’s teachers, and evidence of Mr. Araya’s conduct while in custody.
Justice Laskin then set out the test for admitting fresh evidence on a sentencing appeal, noting that the four Palmer criteria of due diligence, relevance, credibility and impact on the result must be applied in the context of two competing interests: the desire to have current information about the offender and the importance of finality. He also noted that there is no fixed rule for when fresh evidence should be admitted on a sentence appeal.
In applying the Palmer factors, there was no question that the fresh evidence was relevant and credible. Rather, the Crown’s main reasons for opposing its admission were that: i) it did not meet the due diligence requirement, since it could have been filed in Mr. Araya’s first appeal to the Court of Appeal; and ii) it could have no effect on the result, since it added little to the extensive evidence of mitigation before the trial judge.
With regard to the due diligence argument, Justice Laskin found that while some of the fresh evidence could have been put before the panel in the previous appeal, that was over two years ago and without the fresh evidence, the Court would be left with an incomplete picture of Mr. Araya’s character today. He also concluded that the fresh evidence can reasonably be expected to have affected the sentence imposed on Mr. Araya.
Justice Laskin then highlighted two considerations which were important to his decision to admit the fresh evidence: the nature of the Court’s task and the passage of time. In particular, he held that:
“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.” (at 39)
As such, Justice Laskin allowed the fresh evidence to be admitted.
After reviewing all the aggravating and mitigating factors, including the fresh affidavit evidence, Justice Laskin reduced Mr. Araya’s sentence to six years’ imprisonment, less the agreed on pre-sentence custody of 15 months, noting the evidence–particularly the fresh evidence–showed that Mr. Araya had “excelled in his rehabilitation”.