R v Araya, 2023 ABCJ 174

In the Alberta Court of Justice Citation: R v Araya, 2023 ABCJ 174 Date: 20230802 Docket: 210022497P1 Registry: Calgary Between: His Majesty the King - and - Hasron Araya Corrected judgment: A corrigendum was issued on August 17, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. Sentencing Decision of the Honourable Justice M.T.C. Tyndale Introduction [ 1 ] Mr. Araya was charged with seven firearms-related offences arising out of his possession of a loaded handgun on January 7, 2021. The trial was held before me on September 14, 15, and 16, 2022.

The evidence was heard within a blended Charter voir dire. [ 2 ] On December 23, 2022, I gave my decision, reported at Araya , 2022 ABPC 261 , in which I dismissed the Charter arguments. By agreement, the evidence heard within the voir dire was applied to the trial, and Mr. Araya was convicted of the following counts: Count 1: Carry handgun in careless manner, s 86(1). Count 2: Carry concealed handgun, s 90(1). Count 4: Occupant of motor vehicle knowing there was therein a handgun, s 94(1). Count 5: Unauthorized possession of loaded prohibited firearm, s 95(1).

Count 7: Possession of handgun with defaced serial number, s 108(1)(B). [ 3 ] I imposed conditional stays on count 3, s 91(1)(A), and count 6, s 88(1), on the application of the Keinapple principle. [ 4 ] Sentencing submissions were made on May 26, 2023, and the matter adjourned. This is my decision on sentence.

Circumstances of the Offence [ 5 ] On January 7, 2021, Mr. Lugela was being sought by the police for a very recent armed robbery in which a handgun was allegedly produced from a cross-body satchel worn by Mr. Lugela. Undercover members of the Calgary Police Service (CPS), including SWAT Team members, assisted by the HAWC helicopter, were following Mr. Lugela’s car looking for an opportunity to safely arrest him. [ 6 ] While he was being surveilled, Mr. Lugela picked up an unknown young Black male from a Calgary residence.

Almost immediately that male returned to the residence, emerging with a cross-body satchel, and re-entered Mr. Lugela’s car. [ 7 ] The two men were followed to a shopping center in Airdrie, where they parked the car and entered a pharmacy. When they exited the pharmacy, both were taken into custody by police. Mr. Araya’s satchel was searched, and in it was found a fully operational handgun, loaded with 10 9mm live rounds. [ 8 ] The serial number of the handgun had been defaced. [ 9 ] Mr.

Araya was not the holder of any firearms licenses, permits or authorizations which might have allowed possession of the firearm. [ 10 ] There was no evidence that Mr. Araya brandished or used the firearm in any manner during the period of his possession of it. There is no evidence of any other criminality surrounding Mr. Araya’s possession of the firearm, such as drug dealing, intimidation, etc... Circumstances of the Offender [ 11 ] Mr. Araya was 18 years old at the time of the commission of the offences. He has no prior criminal record. [ 12 ] Mr.

Araya was born in Calgary, the oldest son of Eritrean immigrants. There are three younger siblings. Mr. Araya’s mother is a nurse, and his father a chef. Mr. Araya grew up in a middle-class Christian home. His parents worked hard, built a family and urged education on their children. [ 13 ] Mr. Araya’s family is supportive of him. However, for the last couple of years leading up to the writing of the Presentence Report (PSR), Exhibit S1, he has not been communicating clearly or completely with them, including not telling them about the offences he was charged with or, ultimately, convicted of.

He has put his education on hold, despite his parents having saved a significant amount of money for his continued education. He has not introduced his sometime girlfriend of six months to his family. He has not been forthcoming with his family about the negative peer group with which he has at least partly engaged, the prime example of which is Mr. Lugela. [ 14 ] Mr. Araya achieved average marks in finishing high school and has completed some upgrading. He has plans to attend SAIT to take a Heavy-Duty Mechanics course. [ 15 ] At least some of Mr.

Araya’s poor communication with his family can be attributed to not wanting to discuss his outstanding charges, or deal with the resulting family questions. Likewise, Mr. Araya’s reluctance to pursue full-time employment or education since his arrest can be attributed to his reluctance to make plans in the face of an unknown future. There must have seemed no point to beginning a SAIT course if he was headed to the penitentiary. [ 16 ] Mr. Araya has shown in the past that he is capable of obtaining and maintaining consistent employment.

He worked for some time for safety response companies in the oil patch, attaining certificates in Fall Protection, Fire Watch, First Aid, CPR, Gas Detection, and Confined Space Entry. [ 17 ] Mr. Araya has been living in the family home, incurring minimal expenses, and living off his savings. [ 18 ] Mr. Araya’s father describes him as a “good kid” with a “big heart,” but one who is lacking in social and cognitive skills; stuck in a 14–15-year-old mindset. He believes that Mr. Araya is easily influenced and often a “people pleaser,” who could benefit from counselling in the area of communicating. Mr.

Araya, himself, acknowledges his lack of self-esteem and confidence, but yet fails to recognize how that makes him susceptible to negative social influences. [ 19 ] The author of the PSR concludes that Mr. Araya lacks insight into the severity of his areas of risk, specifically negative social influences. Positions of the Parties [ 20 ] Mr. Tran, for the Crown, emphasized the dangerous nature of the loaded firearms in public.

He tendered an affidavit of the Acting Staff Sergeant of the CPS Firearms Investigative Team which detailed the rise in shooting incidents and crime gun seizures in Calgary from 2018 to 2022, Exhibit S2. He submitted a sentence in the range of four to four-and-a-half years would be appropriate. [ 21 ] Mr. Jugnauth, for the accused, stressed that Mr. Araya is a youthful first offender from a racialized community, whose moral culpability is informed by the lack of any evidence of other criminal activity in conjunction with the possession of the handgun.

He urged the court to impose a Conditional Sentence Order (CSO) of two years less one day, followed by lengthy probation.

Aggravating Circumstances [22] Mr. Araya chose to carry a loaded handgun, concealed in a satchel, while travelling in a vehicle, and then into a pharmacy. [23] Mr. Araya endangered the safety of the innocent bystanders in the busy strip mall and in the pharmacy. [24] The handgun was fully loaded with 10 9mm rounds, with the serial number defaced. Mitigating Circumstances [25] Mr. Araya is a youthful offender, only 18 years old at the date of the offence. [26] That Mr.

Araya has no criminal record is not, strictly speaking, a mitigating factor so much as the absence of an aggravatingfactor, but it does serve to show the offence as out of character, and to inform his prospects for rehabilitation. [27] Mr. Araya has a supportive family, whose support can become more effective contingent on Mr. Araya’s bettercommunication with them. [28] Mr. Araya has demonstrated that he is capable of obtaining and maintaining responsible employment. [29] Mr. Araya has the identifiable and attainable education goal of pursuing a Heavy-Duty Mechanics course at SAIT.

Betweenhis savings and the education fund his parents have amassed for him, that goal is financially feasible. [30] The evidence before the court is that Mr. Araya has complied with the terms of his bail since January 2021, a period of overtwo and a half years. [31] Mr. Araya is a member of a racialized community. Although the hard work of his parents has spared their family the difficultyof economic hardship often experienced by racialized groups, and indeed has afforded Mr. Araya a middle-class upbringing, that is notthe same thing as saying that Mr. Araya has experienced no anti-Black prejudice.

As the Ontario Court of Appeal noted in its openingparagraph in Morris: [1] It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a realityin Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably thecriminal justice system.

It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure iton a daily basis: see R v Le, 2019 SCC 34, [2019] 2 SCR 692, at paras 89-97; R v Theriault, 2021 ONCA 517, at para 212, leave toappeal to SCC requested, 39768 (July 19, 2021); R v Parks (1993), (ON CA), 15 O R (3d) 324 (C.A.), at p 342, leaveto appeal refused, [1993] SCCA No 481; see also Ontario Human Rights Commission, A Collective Impact: Interim report on theinquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Toronto: Government of Ontario,2018), at p 19; Ontario Association of Children’s Aid Societies, One Vision One Voice: Changing the Child Welfare System for AfricanCanadians (Toronto: Ontario Association of Children’s Aid Societies, 2016), at p 29.

Anti-Black racism must be acknowledged,confronted, mitigated and, ultimately, erased. This appeal requires the court to consider how trial judges should take evidence of anti-Black racism into account on sentencing. [32] Again, while Mr. Araya’s racialization is not strictly a mitigating factor, it must be factored into his moral culpability whencalculating proportionality. Parameters of Sentencing [33] The maximum sentences for the offences for which Mr.

Araya has been convicted are: Count 1: s 86(1) – 2 years Count 2: s 90(1) – 5 years Count 4: s 94(1) – 10 years Count 5: s 95(1) – 10 years Count 7: s 108(1)(B) – 5 years [34] There are no minimum sentences. Purpose and Principles of Sentencing [35] The purposes and principles of sentencing in the context of firearms offences were concisely articulated by JusticeLeGrandeur in Goodrich, 2019 ABPC 250:

Sentencing Principles [21] The fundamental purpose of sentencing is “to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society”: s 718 of the Criminal Code.

That contribution is to be achieved by “imposing justsanctions” which have one or more of the following objectives: 1. to denounce unlawful conduct 2. to deter the offender and other persons from committing offences 3. to separate offenders from society, where necessary 4. to assist in rehabilitating offenders 5. to provide reparations for harm done to victims or to the community 6. to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [22] The fundamental principle of sentencing set out in the Criminal Code is proportionality, the sentence must be proportionate to thegravity of the offence and the degree of responsibility of the offender.

Indeed, this is the only mandatory principle of sentencing. Theother principles set out in s 718(2) are not mandatory and are assigned no respective weights. It is mandatory however, that each sentencemust meet the fundamental and overarching sentencing principles of proportionality (R v Brady, 1998 ABCA 7). It is important to notethat not only is the proportionality principle codified in the Criminal Code, it has also attained the status of a fundamental principle ofjustice (See: Re: s94(2) of the Motor Vehicle Act (British Columbia), (SCC), [1985] 2 SCR 486).

The purpose ofsentencing as set out in the Criminal Code is to impose “just sanctions”. A “just sanction” is one that is deserved. A fit sentence in thatcontext is one that is commensurate with the gravity of the offence and the moral blameworthiness of the offender (R v M(CA) (1996), (SCC), 1 SCR, 500). In R v Proulx, 200 SCC 5, Chief Justice Lamer repeated that principle stating: Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the punishment fits thecrime.

Disparity in sentencing for similar offences is a natural consequence of the fact the sentence must fit not only the offence, but alsothe offender. [23] In the recent decision R v Anderson, 2014 CCC 4) (Anderson), Moldaver, J on behalf of the Supreme Court reiterates theaforementioned principle stating at para 21 thereof: 21 As LeBel, J for the majority of this Court stated in Ipeelee, “[p]roportionality is the sine qua non of a just sanction” and a principle of fundamental justice: paras 36-37.

Proportionality means that the sentence must be “proportionate to the boththe gravity of the offence and the degree of responsibility of the offender.” (Ipeelee, at para 39) (Emphasis deleted); (See alsos718.1 of the Code). ... [24] Proportionality is so fundamental to the sentencing process under our system of justice that even a mandatory minimum sentencecannot escape the scrutiny of and indeed may be overridden by the proportionality analysis.

Moldaver J powerfully points out inAnderson at para 25: If a mandatory minimum regime requires a judge to impose a disproportionate sentence, the regime should be challenged. [25] The sentencing judge must fashion a disposition from among the limited options available which take both sides of theproportionality inquiry into account (See: R v Hamilton, (ON CA), [2004] OJ No 3252 at para 93 (CA)).

Thisproportionality is achieved by a “complex calculus” that is informed by the normative principles set out in the Criminal Code in s 718and s 718.2 (see R v LM,2008 SCC 31 at paras 17, 21, 22). [26] In R v Nasogaluak 2010 SCC 6, LeBel, J commented as follows with respect to the interplay between sentencing objectives inproportionality discussion: No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit thegreatest weight given the particulars of the case.

The relative importance of any mitigating or aggravating factors will then push thesentence up or down the scale of appropriate sentences for similar offences. (at para 43) [27] In considering the degree of responsibility of the offender, or in other words the moral culpability of the offender, the Courtconsiders the fault component of the offender and any background factors that may bear on the culpability of the offender and whichmay shed light on his or her level of moral blameworthiness. (See: Anderson, para 21) [28] Although proportionality is the fundamental principle of sentencing it is not the only principle for consideration.

The Court mustalso consider parity, totality and restraint which are all principles which must be engaged when determining the appropriate sentence.The principle of restraint is of particular importance where incarceration is a potential disposition. That principle’s importance is broughtto light by ss718.2(

d) and (e): (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstance should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [29] The principle of restraint as it is captured by the 1996 Criminal Code amendments statutorizing sentencing principles is explained

by Professor Allan Manson in his text The Law of Sentencing, (Toronto: Irwin law, 2001) at p 95: Restraint means that prison is a sanction of last resort. ...

Restraint also means that when considering other sanctions, the sentencingcourt should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate andjust sanction. [footnotes omitted] Discussion [30] We as Canadians live in a society wherein we continue to strive to prohibit or restrict the availability of certain types of firearms tothe general public and to regulate firearms that are available to the public.

We strive not to end up as have our neighbours to the southwith respect to the acceptance of firearms as a purported integral part of freedom and liberty. We do not believe as a community that weas individuals need firearms to protect and maintain our democracy or rule of law, indeed we are more inclined to the view that suchaccess to firearms tends to undermine the rule of law and our democracy. It is easy in that context to understand why denunciation anddeterrence are the primary sentencing factors for an offence such as is described by s 95(1) of the Criminal Code.

Denunciation [31] Denunciation as a sentencing principle supports a symbolic collective statement that the offender’s conduct encroaches upon ourfundamental and core values and to reinforce for society that these values continue to exist as a communal value shared by all Canadians. [32] What is necessary by way of a sentence to denounce in any given case must be based upon the facts of the individual case? How isthe denunciatory element of sentencing to be measured, i.e. if one month denounces, will not six months denounce better and 12 monthseven better?

In the end the sentence must be proportional and just in the circumstances so the application of the denunciatory principlemust be determined having regard to proportionality. Deterrence [33] Deterrence is a goal of sentencing which is founded upon the assumption that the example of punishment will serve as a threat thatwill discourage others from committing crimes. [34] Such theory is premised upon the assumption that the public can be made aware of sentences imposed in particular cases.

This isimportant because sentences are an individualized process and sentences for the same offence may vary significantly given thecircumstances of the offender and the circumstances of the offence. We assume the public understands this so that even though sentencesmay differ, they can still serve a deterrent purpose if the public knows the circumstances of the offence and the sentence. There is no onesentence for any crime. Deterrence can be achieved in many ways depending upon the circumstances and gravity of the offence.

Even aminimum sentence of imprisonment when called for will continue to impact that segment of society that would likely never commit acrime, as well as those that exist on the borderline of criminality by showing them that even a person with no history and low moralculpability could go to jail.

For those in society who live in that segment where it is questionable about whether deterrence ismeaningful, they nonetheless will see that even an individual of previous good character with no history may be sentenced to jail for aparticular offence and therefore, looking at that sentence in the context of themselves and translation to their circumstances, they shouldunderstand they can expect a greater sentence if convicted for the same offence.

Principles in Firearms Sentencing In the Chin case, 2009 ABCA 226, the Alberta Court of Appeal commented on the seriousness of firearms offences: [10] Mere possession of loaded firearms is inherently dangerous. When such weapons are allowed in the community, death and seriousinjury are literally at hand, only an impulse and trigger-pull away. The case of R v Wharry, 2008 ABCA 293, 437 A R 148 (Alta CA)offers a tragic illustration. There, the accused responded to what he believed to be a slight from a group of passing pedestrians byshooting his loaded handgun at them, killing a woman celebrating her 18th birthday.

It was reported at trial that the offender's lifestyleinvolved street-level cocaine trafficking and that he carried the gun for "protection". [11] This problem is not unique to Alberta; it has become a nationwide phenomenon. The situation was fairly described in R v Danvers(2005), (ON CA), 201 OAC 138, (sub nom R v D (Q)) 199 CCC (3d) 490 (Ont CA) at para 77, where the OntarioCourt of Appeal cited with approval Ewaschuk J.'s comments, in reference to the Toronto experience: Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped.

Only the imposition ofexemplary sentences will serve to deter criminals from arming themselves with handguns. [12] These crimes present a particularly serious threat to the safety and security of the community. Like drug trafficking, they alsorequire forethought and planning. The weapon must be obtained, which is in itself a serious offence. Keeping it loaded, or withammunition nearby, means that it is to be used for more than intimidation.

Simply put, carrying a loaded restricted or prohibited firearmis an extremely dangerous act for which there is absolutely no justification. [36] It is for these reasons that deterrence and denunciation must be the primary objectives in the sentencing of firearms offences. Case Law [37] The above principles were reflected in the Crown’s sentencing submissions, and in the authorities Mr. Tran submitted.

Theseincluded: Chin, above, Nur, 2015 SCC 15, Cromwell, 2016 ABPC 2, Bird, 2022 ABPC 9, Bernard, 2023 ABCJ 94, Holt, 2015 BCCA302, Chowdhury, 2018 ABPC 22, Mills, 2021 BCCA 86, Law, 2012 ABCA 326, Power Romero, 2023 ABCJ 110, Turner, 2023 ONCJ

145, Mahamet-Zene, 2018 ONSC 1050, and Crevier, 2015 ONCA 619. [38] Mr. Jugnauth, for Mr. Araya, relied on the following cases in submissions: Proulx, 2000 SCC 5, Lee, 2012 ABCA 17, Fares,2017 ABQB 509, Morris, 2021 ONCA 680, Foster, 2021 ABPC 56, Ulmer, 2020 ABQB 393, and Orin Moses, 2022 ONSC 332. [39] By subsequent letter, Mr.

Jugnauth submitted the following cases for consideration: Desmond-Robinson, 2022 ONCA 369,Grace, 2022 BCSC 475 4, Orestil, 2022 ONCJ 135 5, Mero, 2021 BCCA 399, Anderson, 2021 NSCA 62, Nadeau, 2020 QCCA 445,Sellars, 2018 BCCA 195, Dalton, 2018 ONSC 544, Rubner, 2017 BCPC 339, Hassan, 2017 ONSC 4570, Redden, 2017 NSSC 172,Sears, 2016 BCSC 965, Haus, 2016 BCPC 11, O’Neill, 2015 BCSC 780, Vandyke, 2013 ABPC 347, Nuttley, 2013 ONCJ 727, Canepa,2011 ONSC 1406, and Mathews, 2011 ABPC 324. [40] In addition, in the course of the court’s own research, I had occasion to examine the following cases: 1.

Alberta cases wherein CSOs were granted for s 95 convictions: Cameron, 2023 ABCJ 100 2. Alberta cases wherein CSOs were granted for serious firearm offences: Sharifi-Jamali, 2022 ABQB 52 Sharifi-Jamali, 2022 ABCA 322 Bergh, 2019 ABCA 151 Buffalo, 2020 ABQB 41 Bui, 2021 ABPC 296 3. Alberta cases with sentences of less than two years for s 95 or similar: Goodrich, 2019 ABPC 250 Calinesco, 2017 ABPC 136 Tessman, 2010 ABPC 184 4. Non-Alberta appellate cases of CSOs for s 95: Fabbro, 2021 ONCA 494 Mohamed, 2020 ONCA 163 Dupuis, 2016 QCCA 688 TAP, 2014 ONCA 141 5.

Non-Alberta superior court cases of CSOs for s 95: Ramos, 2023 ONSC 1094 Lewis, 2022 ONSC 1260 Beharry, 2022 ONSC 4370 Stewart, 2022 ONSC 6997 Parker, 2022 MBQB 66 Mauffak, 2017 BCSC 1794 Devink, 2016 BCSC 1658 6. Non-Alberta superior court cases of CSOs for serious firearm offences: Bajwa, 2020 ONSC 185 7. Non-Alberta superior court cases of less than two years for s 95 or similar offences: McLean, 2020 ONSC 622 Ayala-Barrios, (ON SC), 2007 Carswell Ont 9029, [2007] OJ 5359 (ONSC) Boussoulas, 2015 ONSC 1536 8. Non-Alberta provincial court cases of CSOs for s 95:

Edwards , 2023 ONCJ 53 Senior , [2002] OJ No 5811 Goodridge , 2022 ONCJ 139 McLarty-Mathieu , 2022 ONCJ 498 Meinzinger , 2021 ONCJ 677 Karepetrov , 2021 ONCJ 659 Carter , 2021 ONCJ 561 West , 2019 ONCJ 976 Shunmuganathan , 2016 ONCJ 519 Robicheau , 2021 NSPC 62 Rubner , 2017 BCPC 339 Armstrong , 2016 BCPC 94 Haus , 2016 BCPC 11 9. Non-Alberta provincial court cases of CSOs for similar serious firearm offences: Nicholls , 2022 ONCJ 433 Ricketts , 2021 ONCJ 404 McIntosh , 2019 ONCJ 786 10.

Non-Alberta provincial court cases of less than two years imprisonment for s 95: Dubois , 2022 ONCJ 88 McClellan , 2015 BCPC 129 11.

Cases considering anti-Black racism in firearms sentencing: Abdul-Aziz , 2023 ABCJ 98 Edwards , 2023 ONCJ 53 Anderson , 2021 NSCA 62 Morris , 2021 ONCA 68 Sentencing Ranges for Firearms Offences [ 41 ] Several courts have endeavored to outline sentencing ranges for firearm offences. [ 42 ] In Fares , Justice Tilleman, following a review of seven cases, determined: [19] The foregoing review of authorities suggests that the appropriate range for a first-time offender under s 95(1), in the absence of significant aggravating or mitigating circumstances, is two to three years. [ 43 ] In Stewart , Justice Copeland commented on the appropriate range of sentence: [74] The range of sentence for a first offence of firearm possession offences is sometimes stated as three to five years.

However, stating the range in this manner excludes an established range of sentences as low as upper reformatory (including conditional sentences) for young first offenders, where other criminality such as drug dealing or making threats using the firearm is not proven. It also includes a higher range above three years which typically is applied where there is evidence that a firearm was possessed in connection with some other criminality, such as drug trafficking.

In general, sentences above three years involve some other criminality, such as drug trafficking, connected to the firearm possession: R v Marshall , 2015 ONCA 692 , 340 OAC 201, at paras 47-48 ; R v Graham , 2018 ONSC 6817 at para 38 ; R v Beharry , 2022 ONSC 4370 at para 31 . [75] In Morris , the Court of appeal reiterated the importance of denunciation and general deterrence in sentencing for firearm possession offences. For that reasons, the court held that a three-year sentence will be appropriate for the vast majority of s 95 possession offences.

However, the court also held that sentences at or just below the two-year mark may be appropriate for some s 95 offences: Morris at

paras 71 and 131 .

See also: R v Smickle , 2013 ONCA 678 , 304 CCC (3d) 371, at para 30 (additional reasons at 2014 ONCA 49 , 306 CCC (3d) 351); R v Desmond-Robinson , 2022 ONCA 369 ; R v Beharry at para 31 ; R v Lewis , 2022 ONSC 1260 at par. 34 ; R v Dubois , 2022 ONCJ 88 ; McLarty-Mathieu , 2022 ONCJ 498 . [76] The Court of Appeal has also recognized that in some cases, particularly those involving young adults with no criminal record and good prospects for rehabilitation, a conditional sentence of imprisonment may be an appropriate sentence even for serious firearm possession offences: Morris at paras 124-28, 180-81 ; Desmond-Robinson . [ 44 ] From a review of these cases I distill the following: that, although a conviction for a serious firearms offence will usually result in the imposition of a penitentiary sentence, in certain cases, often involving youthful first offenders and the absence of evidence of other criminality such as drug dealing or overt use of the firearm, the sentencing objectives of deterrence and denunciation can be achieved by the imposition of sentences in the high reformatory range.

Among those cases, some may be eligible to be served in the community pursuant to a Conditional Sentence Order. [ 45 ] Ultimately, I must determine a sentence that is proportional to the seriousness of the offence and to the degree of culpability of the offender. Conditional Sentence Order [ 46 ] Because Mr. Jugnauth requested that I impose a conditional sentence, I must undertake the analytic framework spelled out in R v Proulx , 2000 SCC 5 .

Section 742.1 of the Criminal Code lists four criteria that a Court must consider before deciding to impose a conditional sentence: 1. The offender must be convicted of an offence that is not punishable by minimum term of imprisonment; 2. The Court must impose a term of imprisonment of less than two years; 3. The safety of the community would not be endangered by the offender serving the sentence in the community; and 4.

A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 47 ] As Justice Mah commented in Buffalo : [23] The statutory framework in essence directs the Court to answer two questions, namely, whether conditional sentence is “available” in the circumstances of the case, and second, whether it is “appropriate” to impose a conditional sentence.

The availability question relates to the existence or not of the minimum term of imprisonment, and if not, whether a federal penitentiary term is indicated in the circumstances of the case…. [ 48 ] In Proulx , the Supreme Court of Canada introduced the Conditional Sentence Order sentencing scheme to sentencing judges. It noted: 16 Bill C-41 is in large part a response to the problem of overincarceration in Canada. 17 Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s 718.2(

d) and (e).

Section 718.2(

d) provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”, while s 718.2(

e) provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”. 19 Canadian sentencing jurisprudence has traditionally focussed on the aims of denunciation, deterrence, separation, and rehabilitation, with rehabilitation a relative late-comer to the sentencing analysis: see Gladue , at para 42.

With the introduction of Bill C- 41, however, Parliament has placed new emphasis upon the goals of restorative justice…. 21 The conditional sentence was specifically enacted as a new sanction designed to achieve both of Parliament’s objectives. The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders…. 22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence (Emphasis in the original) … 41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration.

As this Court stated in Gladue , supra , at para 72: . . . in our view a sentence focussed on restorative justice is not necessarily a “lighter” punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls. 67 Leaving aside the fact that a properly crafted conditional sentence can also achieve the objectives of general deterrence and denunciation, I think the debate has been rendered largely academic in light of an amendment to s 742.1(b) (SC 1997, c 18, s 107.1) which clarified that courts must take into consideration the fundamental purpose and principles of sentencing set out in ss 718 to 718.2 in deciding whether to impose a conditional sentence.

This ensures that objectives such as denunciation and deterrence will be dealt with in the decision to impose a conditional sentence. Since these factors will be taken into account later in the analysis, there is no need to include them in the consideration of the safety of the community. 68 In my view, the focus of the analysis at this point should clearly be on the risk posed by the individual offender while serving his sentence in the community…. 79

Section 742.1 does not exclude any offences from the conditional sentencing regime except those with a minimum term of imprisonment…. Thus, a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied. 83 My difficulty with the suggestion that the proportionality principle presumptively excludes certain offences from the conditional sentencing regime is that such an approach focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender. This fundamentally misconstrues the nature of the principle.

Proportionality requires that full consideration be given to both factors. As s 718.1 provides: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [Emphasis added in the original.] 90 First, a consideration of ss 718.2(

d) and 718.2(

e) leads me to the conclusion that serious consideration should be given to the imposition of a conditional sentence in all cases where the first three statutory prerequisites are satisfied. Sections 718.2(

d) and 718.2(

e) codify the important principle of restraint in sentencing and were specifically enacted, along with s 742.1, to help reduce the rate of incarceration in Canada. Accordingly, it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met.

Failure to advert to the possibility of a conditional sentence in reasons for sentence where there are reasonable grounds for finding that the first three statutory prerequisites have been met may well constitute reversible error. 100 Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration.

Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s 718.2(

d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances. 109 While incarceration may provide for more denunciation and deterrence than a conditional sentence, a conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in the offender. As this Court held in Gladue , supra, at para 43, “[r]estorative sentencing goals do not usually correlate with the use of prison as a sanction”.

The importance of these goals is not to be underestimated, as they are primarily responsible for lowering the rate of recidivism.

Consequently, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved in the case of a particular offender, a conditional sentence will likely be the appropriate sanction, subject to the denunciation and deterrence considerations outlined above. 113 In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them.

Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration…. Acknowledgement [ 49 ] Before I conclude this judgement, I want to thank Mr. Tran and Mr. Jugnauth for their helpful submissions and their cogent arguments. I also want to thank my student, Connor Sprague, for his assistance and excellent research and collation skills. Consideration of a CSO for Mr. Araya [ 50 ] In terms of the statutory prerequisites for the imposition of a CSO, there are no minimum sentences, and Mr.

Araya is eligible for a term of imprisonment at or just below two years. Mr. Araya has no criminal record, and I have no evidence other than that he complied fully with the terms of his judicial interim release for a period of over two and a half years. Therefore, I have no basis on which to conclude that his serving of a sentence in the community would endanger the safety of the community. [ 51 ] As to the fourth consideration, a carefully crafted CSO is capable of meeting the sentencing objectives of deterrence and denunciation while at the same time assisting with the rehabilitation of Mr.

Araya, providing reparations to the community which was harmed by Mr. Araya’s offences, and promoting in Mr. Araya a sense of responsibility and acknowledgement of the harm done to the

community. [ 52 ] Mr. Araya should not be deprived of liberty if less restrictive sanctions may be appropriate, and I must consider all available sanctions other than imprisonment that are reasonable in the circumstances. [ 53 ] The imposition of a CSO is consistent with the application of the principle of restraint, per Morris : [124] The restraint principle plays a specific and important role in sentencing for serious crimes like crimes involving the unlawful possession of loaded handguns.

Because of the seriousness of crimes involving the possession of loaded handguns, some term of imprisonment will usually be required to reflect the seriousness of the crime. [125] The requirement of a sentence of imprisonment does not, however, end the operation of the restraint principle. That principle requires the court, if it determines that a sentence of less than two years imprisonment would be appropriate, to consider whether the term of imprisonment could be served in the community under a conditional sentence: Criminal Code , s 742.1.

The restraint principle favours conditional sentences over incarceration if a conditional sentence is consistent with the proportionality principle: see R v RNS , 2000 SCC 7 , [2000] 1 SCR. 149, at para 21 . [126] After Nur struck down the mandatory minimum, a conditional sentence is statutorily available for offences under s 95.

As persuasively laid out in Anderson (NSCA), a carefully fashioned conditional sentence that is responsive, both to the needs of denunciation and deterrence and the rehabilitative potential of the offender, can, in some situations, be a fit sentence for a s 95 offence: see also R v Shunmuganathan , 2016 ONCJ 519 ; R v Dalton , 2018 ONSC 544 . [ 54 ] Further, while Mr.

Araya’s racialization is not strictly a mitigating factor, it must be factored into his moral culpability when calculating proportionality. [ 55 ] Further, the increased use of Conditional Sentence Orders is consistent with Parliament’s present intent. On November 18, 2022, the date that Bill C-5 received Royal Assent, Justice Minister Lametti issued a statement, which included the following: With this law, we have repealed the mandatory minimum penalties that have most contributed to the overincarceration of Indigenous people, Black persons and racialized Canadians.

These reforms will ensure a fairer, more effective justice system for all, while maintaining public safety.

These reforms also offer the courts greater use of conditional sentences and provide for the judicial discretion needed to impose sentences that reflect the seriousness of the offence and maintain public safety, while addressing the obvious and damaging overrepresentation of Indigenous people, Black persons, racialized Canadians, and members of marginalized communities in the criminal justice system. ( http://justice.gc.ca/eng/news-nouv/rss.html ) [ 56 ] In support, the following “Quick Fact” was cited: In 2020-2021, Black inmates represented 9% of the in-custody federal offender population, but only 4% of the Canadian population (Sources: Office of the Correctional Investigator, Statistics Canada’s Population and Demographic Statistics).

Conclusion [ 57 ] Mr. Araya’s commitment to re-establishing trust with his family, his commitment to leaving behind him the gangster lifestyle promoted by Mr. Lugela, his commitment to return to continue his post-secondary education, and therefore his commitment to rehabilitation, remains to be seen. The Crown’s skepticism toward the rehabilitative prospects of Mr. Araya may yet be proven correct. [ 58 ] What I am certain of, though, is that if I send Mr.

Araya, a young man who is emotionally immature, who is easily influenced and often a “people pleaser,” to the penitentiary, then we will almost certainly have permanently lost him to the unhealthy influences found therein. As the Supreme Court noted in Proulx (at paragraph 16 ), “Prison has been characterized by some as a finishing school for criminals and as ill-preparing them for re-integration into society.” [ 59 ] For these reasons, then, I find that, in Mr.

Araya’s circumstances, the imposition of a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

Sentences [ 60 ] I therefore sentence in the following manner: Count 1: Carry handgun in careless manner, s 86(1), six months imprisonment; Count 2: Carry concealed handgun, s 90(1), one year imprisonment, concurrent; Count 4: Occupant of motor vehicle knowing that there was therein a handgun, s 94(1) two years less one day, concurrent; Count 5: Unauthorized possession of loaded prohibited firearm, s 95(1), two years less one day, concurrent, to be followed by a two year

probation order; and Count 7: Possession of handgun with defaced serial number, s 108(1)(B), one year imprisonment, concurrent. [ 61 ] This results in a global sentence of two years less one day, followed by two years’ probation. For the reasons given, I will allow Mr. Araya to serve that sentence in the community, subject to a Conditional Sentence Order.

I will shortly go through the terms of the two orders. [ 62 ] I decline to order any Victim Fine Surcharges because simply enriching the General Revenue Fund of the Alberta Government does not seem to be furthering any articulable objectives of sentencing, and because I want Mr. Araya to focus on his rehabilitation. [ 63 ] Section 95(1) is a secondary designated offence. Therefore, I order Mr. Araya to provide a sample of his DNA for forensic analysis and inclusion in the National DNA database. [ 64 ] Pursuant to section 109(2)(b), Mr.

Araya is prohibited from the possession of any firearm, cross-bow, restricted weapon, ammunition, and explosive device for a period of 10 years. [ 65 ] If requested by the Crown, the firearm will be forfeited to the Crown for disposition or destruction. Dated at the City of Calgary, Alberta this 2 nd day of August, 2023. M.T.C. Tyndale A Justice of the Alberta Court of Justice Appearances: W. Tran for the Crown D.

Jugnauth for the Accused Attachments: Terms of the CSO and Probation Order Terms of the CSO CONDITIONAL SENTENCE ORDER ACCUSED’S NAME: Hasron Araya DOCKET NO: 210022497P1 JUDGE: Mark TC Tyndale CONDITIONAL SENTENCE ORDER TERM: two years less one day

PROBATION TO FOLLOW? Yes TERM two years You shall for a period of two years less one day from the date of the Order: (

a) Keep the peace and be of good behaviour; (

b) Appear before the Court when required to do so by the Court; (

c) Within two business days of now report in person to a Supervisor at Court Probation Office (Main Floor, Calgary Courts Centre, 601 5 St SW, (403) 297-5779) and after that first meeting, you will report when required by the Supervisor and in a manner directed by the Supervisor; (

d) Remain in Alberta unless written permission to leave the province is obtained from the Court or Supervisor; and (

e) Notify the Court or the Supervisor in advance of any change of name or address, and promptly notify the Court or the Supervisor of any change of employment or occupation. (

f) Have no contact or communication whatsoever, either directly or indirectly, with: Phillipe Lugela. Reside: You will live where approved by your Supervisor, or at [address omitted] Calgary, Alberta; While residing at [address omitted], you will obey all house rules as set out in writing by [name of address owner omitted] . A willful breach of these house rules may be considered a breach of this CSO. Any change in address must also be approved in writing, in advance, by your Supervisor. You must provide written proof of your address to your Supervisor, within one business day of it being requested of you.

Restrictions: House Arrest : For the first _21___ months of this Order, you will remain in your home or its grounds 24 hours a day 7 days a week. Curfew: For the next __3__ months, keep a curfew and remain in your home or its grounds between the hours of _6:00___ p.m. and _6:00___ a.m. Exceptions to House Arrest/Curfew Restrictions: These exceptions apply to the house arrest/curfew restrictions: Medical or other emergencies for you or your family. Travel to, travel from and remaining at work, education or vocational training. You must provide in advance to your Supervisor a copy of your work/education/training

schedule for at least one week, within one business day of your Supervisor’s request. court, professional appointments, court-ordered counselling or treatment sessions and Supervisor reporting appointments; the location for performing community service hours; religious services; shopping for necessities of life, as authorized in writing by the Supervisor and to be at least 2 hours per week. Any other exception approved in writing in advance by the Supervisor. Which may include a daily period for personal physical exercise or wellness program.

Monitoring: Maintain a land line telephone without call-forwarding features. Answer your land line telephone when it rings. Present yourself at the door to your home and at the door of a surveillance vehicle, in response to the directions of a surveillance officer or peace officer.

Whenever outside your home, carry with you, in hard copy or electronic format, your Conditional Sentence Order documents, including any written authorizations from your Supervisor, and produce them on demand of a peace officer or a surveillance officer. Communication: Your only cellular phone must be one for which you receive monthly statements and not a pay-as -you-go service. Provide your Supervisor with your monthly cellular telephone billing statement, within one week of receiving it. Searches: Submit to random searches by a peace officer of your person or a vehicle you are driving.

Assessment, Counselling, and Treatment : Go for assessment and participate in and complete any counselling or treatment directed by your Supervisor, including: o Psychiatric/Psychological o Life Skills o Self Esteem o Other: The REAL ME Program run by the Centre for Newcomers, or other program for youth at risk of gang involvement. Waiver: Sign any release of private information or waiver of privacy interests as directed by your Supervisor, to provide access to personal information about you that your Supervisor requires.

Proof: Provide your Supervisor with proof in writing that you have followed through and completed any treatment or counselling you have been directed to take. No Intoxicants: You are prohibited from buying, having in your possession, using or consuming intoxicating substances, including alcohol, recreational cannabis and any drug not prescribed for you by a doctor or dentist. You are banned from entering any liquor store, wine shop, bar, lounge, tavern or other place where the main business is the sale of alcohol, or of recreational cannabis.

Making Amends : Perform _200______ hours of community service to the satisfaction of your Supervisor within 18 months of the date of this order and provide written proof to your Supervisor of your completion of the hours within one week of their completion. Weapons Ban : You are prohibited from owning, having in your possession or carrying a weapon, including knives except those you use for preparing or eating food. Work tools, while you are at work, are a permitted exception to this ban.

Do not possess a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. Work/Education/Training : You will work, take an educational course or upgrading, receive vocational training or some combination of these tasks, as approved by your Supervisor.

Terms of the Probation Order: PROBATION ORDER ACCUSED’S NAME: Hasron Araya DOCKET NO.: 210022497P1 JUDGE: Mark TC Tyndale PROBATION ORDER TERM: two years You shall for a period of two years from the date of the Order: (

a) Keep the peace and be of good behaviour; (

b) Appear before the Court when required to do so by the Court; and (

c) Notify the Court or the Probation Officer in advance of any change of name or address, and promptly notify the Court or the Probation Officer of any change of employment or occupation. No Contact: (

d) Have no contact or communication whatsoever, either directly or indirectly, with: Phillipe Lugela. Reporting : Within two business days of now report in person to a Probation Officer at Court Probation Office (Main Floor, Calgary Courts Centre, 601 5 St SW, (403) 297-5779) and after that first meeting you will continue to report, as directed by your Probation Officer; that may be by telephone or in person, whatever your Probation Officer tells you; Remain in Alberta: You will remain in Alberta unless written permission to leave the province is obtained from the Court or your Probation Officer.

Reside: You will live where approved by your Probation Officer or at [address omitted], Calgary, Alberta; While residing at [address omitted], you will obey all house rules as set out in writing by [name of address owner omitted] . A willful breach of these house rules may be considered a breach of this Probation Order. Any change in address must also be approved in writing, in advance, by your Probation Officer. You must provide written proof of your address to your Probation Officer, within one business day of it being requested of you.

Curfew Restrictions: For the first 9 months keep a curfew and remain in your home or its grounds between the hours of __6:00__ p.m. and _6:00___ a.m. For the next __9__ months keep a curfew and remain in your home or its grounds between the hours of _11:00___ p.m. and _6:00___ a.m. Exceptions to House Arrest/Curfew Restrictions: These exceptions apply to the house arrest/curfew restrictions: Medical or other emergencies for you or your family. Travel to, travel from and remaining at: work, education or vocational training.

You must provide in advance to your Probation Officer a copy of your work/education/training

schedule for at least one week, within one business day of your Probation Officer’s request. court, professional appointments, court-ordered counselling or treatment sessions and Probation Officer reporting appointments; the location for performing community service hours; religious services;

shopping for necessities of life, as authorized in writing by the Probation Officer and to be at least 2 hours per week. Any other exception approved in writing by your Probation Officer. Monitoring: Maintain a land line telephone without call-forwarding features. Answer your land line telephone when it rings. Present yourself at the door to your home and at the door of a surveillance vehicle, in response to the directions of a surveillance officer or peace officer.

Whenever outside your home, carry with you your Probation Order documents, including any written authorizations from your Probation Officer, and produce them on demand of a peace officer or a surveillance officer.

Assessment, Counselling, and Treatment : Go for assessment and participate in and complete any counselling, treatment or programming directed by your Probation Officer, including: o Psychiatric/Psychological o Life Skills o Self Esteem o Other: Any appropriate course designed to divert youth at risk of gang involvement Waiver: Sign any release or waiver of information as directed, providing access to information required by your Probation Officer. Proof: Provide your Probation Officer with proof in writing that you have followed through and completed any treatment or counselling you have been directed to take.

No Intoxicants: For the first 12 months of this Order, you are prohibited from buying, having in your possession, using or consuming intoxicating substances, including alcohol, recreational cannabis, and any drug not prescribed for you by a doctor or dentist. For the first 12 months of this Order, you are banned from entering any liquor store, wine shop, bar, lounge, tavern or other place where the main business is the sale of alcohol, or of recreational cannabis. Communication and Mobility: Your only cellular phone must be one for which you receive monthly billing statements and not a pay-as -you-go service.

You will provide your Probation Officer with your monthly cellular telephone billing statement, within one week of receiving it. Searches: Submit to random searches by a peace officer of your person, or a vehicle you are driving. Weapons Bans : You are prohibited from owning, having in your possession or carrying a weapon, including knives except those you use for preparing or eating food. Work tools, while you are at work, are a permitted exception to this ban.

Work / Education / Training : You will work, take an educational course or upgrading, receive vocational training or some combination of these tasks, as approved by your Probation Officer. _______________________________________________________

Corrigendum of the Sentencing Decision of The Sentencing Decision of the Honourable Justice M.T.C. Tyndale _______________________________________________________ The address of Mr. Hasron Araya has been redacted from the decision