Hamilton, Sansfaçon, Cournoyer

Applications for leave to appeal from sentences. Granted. Appeals from sentences. Dismissed.

The applicants were involved in the murder of the victim, who was shot in front of his family during a home invasion. The person who fired the shot (Nauzinor) was convicted of first-degree murder, and the applicants were convicted of manslaughter with a weapon. The trial judge sentenced Marcellus to 17 years’ imprisonment and sentenced Araghoune to 12 years’ imprisonment.

None of the grounds of appeal have merit. First, the jury did not need to decide the issues of whether Marcellus had forcibly confined the victim or assaulted him. As these were relevant elements in the sentencing, the judge had to analyze the evidence and reach his own conclusions on the matter, which he did. The applicant’s allegation that there is a contradiction between the judge’s conclusions is not accepted.  

In addition, the judge did not attribute moral responsibility to the applicants based on the subjective foreseeability of the victim’s death, which would have been contrary to the jury’s verdicts. Instead, he found that there was objective foreseeability. This did not prevent him from finding that there was a high degree of moral responsibility, as the applicants had played an important role in the planning and execution of the home invasion. Moreover, it was open to him to consider that the moral responsibility of Marcellus was even higher based on the different levels of involvement of the participants in the murder.

The upsurge in firearms offences does not justify the Court redefining the sentencing ranges. Those discussed in R. c. Vallée (C.A., 2017-04-26), 2017 QCCA 666, SOQUIJ AZ-51387072, 2017EXP-1349, remain appropriate. In this case, the judge erred in rejecting them, but it was not a decisive error. He explained that, even if he had been compelled to use the categories set out in Vallée, he would have felt it justified to use the upper limit of the range, or even to depart from it to impose a sentence proportionate to the seriousness of the offence and the applicants’ high degree of moral responsibility. This statement is in line with the case law. The applicants incorrectly suggest that the subjective foreseeability of the victim’s death is an essential element of the [translation] “near murder,” whereas this is clearly not the case, even if manslaughter is characterized as such. The judge was therefore justified in characterizing the manslaughter as a [translation] “near murder”.

Since one of the essential elements of the offence set out in section 236(a) of the Criminal Code (R.S.C. 1985, c. C-46) is the use of a firearm, it is an error in principle to consider the use of such a weapon as an aggravating factor in itself. There is no preclusion, however, to taking into account the circumstances in which the weapon was used, in this case, a home invasion and the use of the weapon in front of the victim’s family. In addition, while it is true that it was Nauzinor that used the weapon, the applicants were aware that it was in his possession during the home invasion. Moreover, the fact that they were subject to an order prohibiting them from possessing firearms is also an aggravating factor. Last, it is true that an unlawful purpose is a constitutive element of the offence, but the judge had to take into account the seriousness of that purpose. The home invasion is therefore an aggravating factor. Furthermore, the judge did not overemphasize the objectives of denunciation and deterrence.

The Court cannot conclude that the sentences, although harsh, are demonstrably unfit.

Text of the decision: http://citoyens.soquij.qc.ca