Wednesday, 2 March 2016

Refusing to snitch has no bearing on the sentence                        

Often when a suspect is being questioned by the police and the police know that the suspect had a partner in the crime and they don’t know who the crime was they will make an offer to the suspect: the offer being that if he tells them who is partner is, his trial judge will go easier on his sentence.

 It is rare that a suspect will risk his life and limb by turning in his partner. This article is about such a suspect and what the consequences were if he refused to co-operate with the police.

 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 which meant that he would be sentenced as an adult for whatever crime he was convicted.

Araya surrendered to the police and was charged with murder. No one else hasever been charged in the shooting. He refused to snitch on his friends. If he had, his sentence may have been less. 

In November 2011, after a four-week jury trial, Araya was found guilty of manslaughter. Section 236(a) of the Criminal Code, 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).

Araya appealed both his conviction and sentence to the Ontario Court of Appeal.  A majority of this panel allowed the conviction appeal and ordered a new trial; Strathy County Judge dissented. 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.
Relying on the Chief Justice’s dissent, the Crown appealed as of right to the Supreme Court of Canada. In March 2015, the Supreme Court allowed the Crown’s appeal and restored Araya’s conviction for manslaughter. The Supreme Court sent the case back to the Ontario Court of Appeal to consider the sentence appeal.                                                                               

I should point out that in Canada and many of the States in the US; they have a law that states that even if you don’t personally kill someone during a robbery, you can still be convicted of the murder or manslaughter of the victim.

All three panel members agreed that in sentencing Araya, the trial judge erred in principle: despite the mandatory minimum required by section  236(a) of the Criminal Code when a firearm is used, he also treated the use of a firearm as an aggravating consideration justifying a sentence beyond this minimum.
Thus, the Appeal Court sentenced Araya to 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 consideration as the court had imposed the sentence it thought fit. Araya’s lawyer submitted that a fit sentence would be in the range of four to six years. The Crown [prosecutor] submitted that, despite the trial judge’s error in principle, an eight-year sentence less pre-sentence custody is still a fit sentence.

In deciding what would be a fit sentence the court had to address two specific questions raised by the parties. First, should the court admit the fresh evidence tendered by Araya in support of his appeal? Araya’s lawyer submitted that it is admissible because it speaks to Araya’s current character and shows his ongoing efforts to rehabilitate himself. The Crown opposes the admission of the fresh evidence.  The Crown submitted that it has been filed too late and that it adds little to the mitigating evidence that was before the trial judge.

I am not impressed with the Crown’s position that it was too late to submit that evidence. It is never too late to submit pertinent evidence.

One of the most important questions before the court was whether or not the court should treat Araya’s failure to cooperate with the police and to disclose the identities of the other assailants as an aggravating consideration on sentence?

 Wheeling and dealing with criminals being questioned by cops is more of a way of life than many police officers and prosecutors care to openly admit. It is, quite simply, the practice of using snitches to obtain convictions against the criminal’s partners in crime or other criminals committing crimes.      

US Nationwide, court records indicate that 25% of offenders sent to federal prison for drug-related crimes provided information to prosecutors in exchange for shorter sentences. In some jurisdictions, like Idaho, Colorado and the Eastern District of Kentucky, more than half did. Sometimes these sentence reductions can amount to 50% or more, according to the U.S. Sentencing Commission. It certainly is an incentive to snitch especially of the original sentence is a very long period of incarceration.                          

According to a 2012 USA Today investigation that examined hundreds of thousands of court cases, “snitching has become so commonplace that in the past five years at least 48,895 federal convicts – one out of every eight – had their prison sentences reduced in exchange for helping government investigators.”  U.S. Attorneys and their local district attorney counterparts gather information to use as evidence in criminal cases from whomever they can, including prisoners seeking to shorten their sentences.                       

Those who are already incarcerated and the people who guard them know there are few secrets in jail or prison. People talk about everything, including their own cases. The more canny and opportunistic prisoners realize from first-hand experience that prosecutors “pay” well with sentence reductions for information on someone they have insufficient evidence to convict.

In Canada, the judges have a very wary eye on those kinds of snitches since many have testified that other prisoners confessed to them about unknown crimes they committed when in fact, the prisoners spoken about have been victimized by those kinds of snitches since the victimized prisoner never even spoke to the snitch at all. 

To the naïve or uninitiated, law enforcement, in its battle against crime, should be able to use every tool at its disposal. If that means relying on testimony from one criminal to convict another, so be it. Except in the most obvious cases of prosecutorial overreach, juries hold their collective noses and vote guilty, ignoring misgivings about the source of the incriminating “proof” or the motives of the jailhouse snitch who takes the stand against a defendant.    

Prosecutors eager to close a case often reward criminals with sentence reductions for inaccurate, manufactured or questionable “evidence” or testimony against another offender.

The pressure to snitch is overwhelming. Suspects accused of federal crimes almost always accept plea bargains. Those who don’t are generally convicted at trial, and the lengthier sentences they typically receive for refusing to plead guilty are known as the “trial penalty.” For someone in such a position, who may be facing a mandatory minimum prison term of 10 to 20 years, informing on fellow criminals is their only chance at leniency.

There is always the risk that snitches face when they are in prison. They are generally placed in protective custody with other snitches, pedophiles and former police officers. They miss out on outdoor activities, hobby shops etc.

Over half a century ago, I was sent to an adult reformatory for first offenders for giving shelter to a friend being looked for by the police. I was a trustee and had my own office in the administration office.                             

The superintendent (Charles Sanderson) of the institution asked me to talk to the men and convince them not to participate in a proposed riot. I was successful in talking half the institution out of not rioting. Later Sanderson asked me for the names of the leaders of the riot. I refused to cooperate for obvious reasons.  He ordered that I was to be isolated from the men and I was kept in solitary confinement for four months. When it was apparent that I wouldn’t give him the names, he had me shipped to a tougher institution.  He didn’t know that the superintendent of that institution was an old friend of mine and I was treated well in his institution. The rioters sent from Sanderson’s institution to the one I was also sent to gave me no trouble at all. Had I been a snitch, I would have been in real danger. By the way, Sanderson was later fired from his job.
Back in the 1970s, I was asked to give a series of lectures to senior supervisors of federal prisons in Ontario on how to deal with prisoners. While being give a series of tours in the prisons, I noticed that the protective custody block of Kinston Penitentiary wasn’t locked. The warden told me that it wasn’t necessary since there was always a guard standing at the entrance. A year later the prisoners rioted. They grabbed the guard and then attacked the inmates in protective custody. They were all seriously injured.

I realize how important snitches can be in solving crimes but f they wish to remain silent, it is easy to see why.

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.

The Crown argues that Araya knew 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’s lawyer argued that a failure to “snitch” should not aggravate his sentence.

The Court of Appeal addressed this very issue nearly 40 years ago in R. v. Rosen in which Mr. Justice Dubin said succinctly, at paragraph 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.”

The Appeal Court hearing Araya’s appeal said in part;

“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. 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.”

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 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. 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. 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.

 The Court of Appeal granted Araya leave to appeal his sentence, allowed the sentence appeal, and it reduced Araya’s sentence from eight years’ imprisonment to six years’ imprisonment (less 15 months’ credit for pre-sentence custody).

As you can see, robbery in which the victim dies is a very serious crime so it follows that despite Araya’s efforts at rehabilitation, the new sentence was appropriate.

There is no doubt in my mind that if this young man had snitched on the other men, including the shooter, his sentence would be less but his life in prison would be a living Hell.  

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