The presumption of diminished responsibility of youth in murder sentencing under Canadian law and the Youth Criminal Justice Act (YCJA): the case of R. v. TF & M.W.
In November of 2010, a young man by the name of Tyrone Bracken was shot dead in a stairwell in the Neptune complex in north Toronto. 4 youths (S.B., T.F., M.W., and Sh.B) where charged with first-degree murder for the killing. (Our firm acted for the fourth youth, “Sh.B.”)
After a two month trial presided over by Justice Ian Nordheimer (sitting without a jury), 3 of the 4 youths were convicted of first-degree murder. Sh.B was acquitted.
Everyone, including the deceased, was 16 years old at the time.
An application for adult sentences under the YCJA for 1st degree murder.
In the sentencing proceedings, the Crown brought an application pursuant to section 64(1) of the Youth Criminal Justice Act (YCJA) asking the Court to impose adults sentences on the three remaining for the degree of culpability. The relevant portion of the statute reads:
64 (1) The Attorney General may, before evidence is called as to sentence or, if no evidence is called, before submissions are made as to sentence, make an application to the youth justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and that was committed after the young person attained the age of 14 years.
(1.1) The Attorney General must consider whether it would be appropriate to make an application under subsection (1) if the offence is a serious violent offence and was committed after the young person attained the age of 14 years. If, in those circumstances, the Attorney General decides not to make an application, the Attorney General shall advise the youth justice court before the young person enters a plea or with leave of the court before the commencement of the trial.
Justice Nordheimer agreed with the Crown’s assessment and argument and consequently sentenced M.W., T.W., and S.B. as adults. M.W., T.F., and S.B. were ordered to serve life sentences with 10 years’ parole ineligibility, pursuant to s. 745.1(b) of the Criminal Code.
Comparison of sentences for youths, youths as adults, and adult sentences in murder:
Not surprisingly, the difference between adult and youth sentences is a significant one under Canadian law.
To break that down further still, there are significant differences between youth sentences, and youths sentenced as adults, and more differences yet again depending on the age of the youth offender.
The chart below simplifies the comparison:
1st Degree Murder
2nd Degree Murder
Place where served
Imprisonment for life
No parole for 25 years – s.745 (a)
If multiple murders, periods without eligibility for parole
Imprisonment for life
Judge’s discretion for determining parole eligibility. s.745.4
No parole for 25 years if is there is prior conviction for
Imprisonment for life but no minimum sentence.
Normal eligibility for parole s.745(d)
No parole provision about manslaughter exclusively
Murder: Federal Penitentiary
Manslaughter: Provincial or Federal Penitentiary depending on sentence.
10 years to be served as:
7 years to be served as:
Intensive rehabilitative custody and supervision order:
a) Penitentiary s.76(1)(c)
b) Youth jail, unless it is contrary to youth’s best
c) Once 20 years old, he is not to remain in youth jail
Youth as adult
(16 to 18 years of age at time of offence)
Imprisonment for life, parole as under:
Imprisonment for life, parole as under:
Imprisonment for life and parole as under:
Once 20 years old, not to remain in youth jail unless it is
Youth as adult
(Less then 16 years old at the time of of the offence)
Imprisonment for life, parole as under:
Imprisonment for life, parole as under:
Imprisonment for life and parole as under:
Youth jail, unless it is contrary to youth’s best interest
Once 20 years old, he is not to remain in youth jail unless
M.W. and T.W. at the Ontario Court of Appeal
Two of the three youths, T.F., and M.W., appealed both their convictions and sentences. S.B did not. On May 10, 2016 the sentencing appeals were heard and a decision was rendered by the Ontario Court of Appeal (Epstein, Pepall, and van Rensbrug JJ.A. presiding [Epstein J.A. writing for the Court]). The appeals against conviction remain pending.
Counsel for the two youth, Erika Chozik and Peter Copeland, argued that T.F. and M.W. should have received youth sentences as they did not receive the benefit of “presumed diminishment of moral blameworthiness” (i.e., “the Presumption”) to which they are entitled under the letter and spirt of the YCJA.
They further argued that the Court’s erred in reaching the conclusion that the “Intensive Rehabilitative Custody Supervision” program (IRCS) was ineffective in achieving proper accountability and supervision in relation to the nature of the offence and offenders and therefore warranted an adult sentence.
At the Ontario Court of Appeal, Ms. Chozik and Mr. Copeland urged the Court to conclude the sentence should be set aside, that T.F. and M.W. should be sentenced afresh, and as youths.
The Court of Appeal for Ontario agreed with counsel for the defence and did exactly that.
In so doing, they settled some critical areas of law as it relates to
- The presumption youths are afforded in sentencing as it relates to moral blameworthiness – even for offences as serious as murder.
- Clear rules on how sentencing courts must approach these presumptions whether a 64(1) order is appropriate.
- The applicability and worth of IRCS orders, as well as the evidentiary requirements before concluding such orders would have no meaningful impact upon the rehabilitation of a youthful offender.
A primer on sentencing for serious criminal offences under the Youth Criminal Justice Act.
In order to understand the significance of this judgment, it’s important to repeat (as the Court of Appeal did) some fundamental principles of sentencing under the YCJA. As stated from paragraphs 12-17 of their judgment:
- “Youth court judges must presumptively sentence persons who were 18 years of age or younger at the time of the offence under the YCJA.
- If convicted of first degree murder, the maximum sentence that a youth court judge may impose on a young person is 10 years, comprised of a committal to custody that cannot exceed 6 years and placement under conditional supervision to be served in the community for the balance of the sentence: YCJA, s. 42(2)(q). The proportion of custody to conditional supervision is within the youth court judge’s discretion, subject to the legislated maximums.
- For very serious offences, s. 42(2)(r) of the YCJA permits the imposition of an IRCS order as part of a youth sentence. A youth court judge may impose an IRCS order for up to 10 years in the case of first degree murder, if the young person qualifies for such an order: YCJA, ss. 42(2)(r), 42(7).
- Consistent with one of the primary purposes of the YCJA, the intent of the IRCS program is to provide young persons that qualify for the program with the treatment they need to ensure their effective rehabilitation and reintegration into society. Pursuant to s. 42(7), an IRCS order can only be imposed if the following four conditions are satisfied: a) the young person has been found guilty of murder, attempted murder, manslaughter, aggravated sexual assault or a third serious violent crime; b) the young person is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance; c) a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds to believe the plan might reduce the young person’s risk of recidivism; and d) the provincial director has determined that an IRCS program is available and the young person’s participation in it is appropriate.”
Comparatively, youths sentenced as adults receive a life sentence with no eligibility for parole until 10 years have passed.
Again, and to emphasize, it is still a life sentence, albeit one with a modified parole eligibility date compared to “adult sentences” served by those who committed the offence over the age of 18 at the time – and under the normal routine of Criminal Code Sentencing. This is mentioned as many misunderstand the reality parole eligibility is just that – eligibility. It does not guarantee release, nor does it evaporate the sentence.
In short, an youth sentenced as an adult serving a life sentence is either in jail, or on parole for the rest of their life.
By comparison, a youth serving a youth sentence for a murder would have their records sealed after they have served their sentence and would not be on parole for the rest of their life, and have their youth record sealed.
Youth sentence vs. adult sentence for a youth: moral responsibility, accountability, and YCJA sentencing tools:
As seen above, the differences between the two sentencing regimes are of utmost significance to the offender.
In order for the Crown to succeed on an application for a youth to be sentenced as an adult, the Crown must convince the Court that “the presumption of diminished moral blameworthiness or culpability of the young person is rebutted” and “a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.” – see s.72(1) of the YCJA.
In 2008, the Supreme Court of Canada recognized in the case of R. v. D.B. [2008[ 2 S.C.R. 3, that there is a “presumed diminishment of moral culpability” for youths and this must be taken into account in all sentencing proceedings. For a more detailed and through analysis of this principle and it’s importance, see “R. v. B. (D.): The Constitutionalization of Adolescence” by Prof. Nicholas Bala.
Notwithstanding this burden of the Crown to rebut diminished responsibility, the trial judge imposed adult sentences on M.W. and T.F. In reaching his conclusion, the trial judge held:
- “[T]he interests of the young person in rehabilitation and reintegration must be balanced against the societal interests in ensuring that young persons who commit serious violent crimes are subject to meaningful penalties that not only hold the young person accountable for his or her actions but will also assist in the protection and safety of the community at large.” – para 41 of the trial decision
- That although M.W. and T.F. would benefit from the ICRS program, there were significant problems that weighed against the appropriateness and affect of such an order.
- That “[I]t would be a rare and unusual case where the offence of first degree murder would not incline one toward the imposition of an adult sentence since the concept of retribution would normally tilt that factor towards that result. While the YCJA provides a penalty for first and second degree murder, the situations where those penalties will be properly viewed as having meaningful consequences are likely to be much fewer for the offence of murder than would be the case for all other offences.”
- That personal circumstances and character of both M.W. and T.F. militated towards an adult sentence; and,
- That societal interests of “meaningful sentences” are imposed for serious crimes such as these, even for youths. Such a sentence could not, in this case, be achieved through a youth sentence and the shortcomings of the ICRS.
The Court of Appeal disagreed in this analysis.
The presumption of validity and effectiveness of the Intensive Rehabilitative Custody and Supervision (IRCS) Program (and through implication, other YCJA sentencing mechanisms)
In essence, the Court of Appeal held that the trial judge’s conclusions relating to the ICRS were
a) speculative in reaching conclusions regarding that might shift the nature of treatment are supervision the youths would receive (paras 59-61),
b) incorrect in finding that there are no meaningful consequences for non-compliance with ICRS orders and supervision (paras 62-72), and
c) lacking in confidence in the ICRS program with no evidentiary basis.
In reaching their decision, the Court has recognized that courts ought not to draw speculative conclusions about the lack of effectiveness of the IRCS.
By extrapolation, the same could be said for many of the various statutory tools that judges may employ when addressing fit sentences for offenders under the YCJA. The IRCS is just one of many unique mechanisms permitted by a sentencing judge operating under the YCJA statute that now musts be recognized as being presumptively applicable when statutorily available.
Some of those options are helpfully summarized at this YCJA informational website.
While there is no guarantee that the IRCS, or any sentencing provisions under the YCJA, will achieve its intended objectives though its application, it is not a basis to discount the ICRS (or other unique YCJA options that might otherwise be discounted by judges when they do not fall within typical, and limited, sentencing options in criminal court – i.e., probation, fines, or incarceration).
As the Court stated:
 Finally, although it is fair to say, as the youth court judge did in this case, that the IRCS program cannot offer a “guarantee” that the appellants will be “completely rehabilitated”, this is not a basis to discount the IRCS program. This court recognized in R. v. A.O., 2007 ONCA 144, 84 O.R. (3d) 561, at para. 58:
There is no guarantee that any sentence, however skillfully fashioned, will ensure the rehabilitation of an offender. What is required under the YCJA is that the sentence has meaningful consequences for the affected young person and that it promotes his or her rehabilitation and reintegration into society.
Pre-trial custody and its relation to Intensive Rehabilitative Custody and Supervision (IRCS) Program’s applicability.
A rather esoteric, but important point from this judgment is when making assessments on the applicability of ICRS, pre-trial custody should be treated in a manner deemed appropriate by the judge; and not, as reasoned by the trial judge, in a formulaic manner that might militate away from ICRS applicability.
 It was in describing the “failings” in the IRCS regime that the youth court judge turned to the “subject of credit for pre-sentence custody”. At para. 49, he affirmed, with reference to his earlier decisions on the point, that he remained of the view “that some credit for pre-sentence custody must be given when imposing a sentence on young persons.”
 The law does not support this view. There is well-settled authority from this court that, although a youth court judge must consider pre-sentence custody in sentencing an offender, the judge’s treatment of the pre-sentence custody is discretionary […] particularly in the context of a Crown application to sentence a youth as an adult. […]
 The youth court judge therefore erred in assuming that the length of any youth sentence imposed had to be reduced by a certain amount of pre-sentence custody. Although the youth court judge described the issue of pre-sentence custody credit as “more academic than practical”, given his conclusion that an adult sentence was warranted, it is clear that his view that he had to give some credit for pre-sentence custody influenced his conclusion that a youth sentence would not be sufficiently long to hold the appellants accountable and accomplish the goals of rehabilitation and protection of the public.
In a system where pre-trial custody on homicide charges is far more the rule than the exception (even for youth), this is a very relevant and well-needed interpretation on how such pre-trial custody is to be treated when youths spend a considerable amount of time awaiting their trials (as M.W. and T.F. did here).
In plain language, what the sentencing judge found was that since they already served nearly 3.5 years, their normal enhanced credit would be 1.5 leaving them with a total sentence of apx. 5.25 years. If sentenced under the YCJA, they would then have only less than a year to serve before the mandated release date of 6 years under s. 42(2)(q). of the YCJA (with the remaining 4 under community supervision and IRCS).
To the sentencing judge, this additional time was not appropriate to properly reflect the proportionate accountability and supervision required for a fit sentence. He therefore moved the proper sentence to that of adult so that more actual incarceration time could be served to achieve these ends.
The Court of Appeal said this was not mandatory or preferred; and determined that even if more time is required to achieve the objectives under the YCJA, one does not have to take into account pre-trial custody, particularly if doing so would actually decrease the appropriateness of the youth sentence.
The new two-part test in determining the applicability of adult sentences for youth:
In setting aside the sentence and sentencing M.W. and T.F. in a de novo hearing, the Court of Appeal spoke of the presumptions properly applicable to youths. The Court held:
 The original provisions of the YCJA placed the onus on the young person convicted of certain “presumptive offences” such as murder, to satisfy the court that a youth sentence would be of sufficient length to hold him or her accountable. In D.B., the Supreme Court recognized the presumption of diminished moral culpability as a principle of fundamental justice and held that because of the principle, there should be no offence for which a youth should be presumptively sentenced as an adult. Rather, in all circumstances, the Crown bears the onus of showing that the presumption of diminished moral culpability has been rebutted and that a youth sentence would not be sufficient to hold the offender accountable for his or her criminal conduct: D.B., at para. 93.[Emphasis added]
 As previously indicated, in 2012, the wording of the test for an adult sentence in s. 72 of the YCJA changed to incorporate the holding in D.B. The two parts of the test were left unchanged. Since D.B.,to sentence a youth as an adult, the Crown must overcome the Presumption and must satisfy the youth court judge that a sentence under the YCJA would not be sufficient to hold the offender accountable for his or her criminal conduct. What did change is that the pre-2012 test was set out in a way that allowed for a blended analysis of the Presumption and of accountability, whereas the new test is expressly structured as a two-pronged test in which the Crown must satisfy both prongs. [Emphasis added]
The Court found that this inquiry is best dealt with as a two part analysis:
1) Has the Crown rebutted the presumption of diminished moral culpability, and
2) Have the proven that a youth sentence would not properly hold the offender accountable.
This two-part test is new, binding law, and critically important as it relates to sentencing youth as adults in Ontario (and Canada).
To date, there has been little analysis on what it means to have “diminished moral capacity” as it relates to these sentencing hearings. Similarly, until now, the two part analysis has been blended into one overall assessment in sentencing. The Court held, in making such a distinction:
 I have made a point of returning to the change in the legislation, with particular focus on the two separate prongs, as it provides the foundation for my view that the analysis of whether the Crown has overcome the Presumption and has satisfied the accountability test are best dealt with as separate inquiries. As I will explain, undertaking separate analyses of each prong is important. The two prongs address related but distinct questions and, although similar factors are applicable to both, there is not a complete overlap. It is not necessarily the case that every factor relevant to an assessment of whether a youth sentence would hold a young person accountable is relevant to the question of whether the Crown has rebutted the Presumption.
Part 1: The focus upon maturity and presumption of lacked moral sophistication and judgment.
As stated, to date there is little analysis of what exactly what overcoming the presumption means, nor is it defined under the YCJA. This placed the Court of Appeal in a position to formulating what this means. In doing so, Epstein J.A. placed the focus on maturity:
 In my view, the focus must necessarily be on the issue of maturity. The Presumption assumes that all young people start from a position of lesser maturity, moral sophistication and capacity for independent judgment than adults. Bala and Anand explain at p. 4:
Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self?awareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: “I don’t know.” This seemingly impertinent answer may simply reflect a lack of forethought or self-awareness, or non-responsiveness due to embarrassment and the shame of hindsight, or it may signal a more significant cognitive issue. Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. [Footnotes omitted.]
 In order to rebut the Presumption the Crown must satisfy the court that, at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him or her. [Emphasis added]
Part 2: Accountability and determining the fitness of sentence:
In addressing the second part of the test, the Court pointed to the guidance that jurisprudence and the YCJA provides. In assessing the sentence, a sentencing Court must consider:
- Do the sanctions imposed have meaningful consequences for the young person?
- Do they promote a sense of responsibility?
- Do they reintegrate the offender into society?
- Is it proportionate and rehabilitative?
- Does the offender have an appropriate attitude towards rehabilitation, and do they have a history that supports or detracts from it?
The Court also addresses the well-known provisions under section 38(2) and its applicability to the accountability component of the two-pronged test.
The interplay between Part 1 (maturity and diminished moral blameworthiness) and Part 2 (accountability through a fit sentence).
In explaining the interplay between Part 1 and Part 2, Court held:
 A central premise of the YCJA is that adolescents’ lesser maturity should affect the extent to which they are held accountable for criminal conduct: YCJA, s. 3(1)(b)(ii). This premise connects the Presumption’s focus on maturity with the determination of accountability.
 This link between the two tests is strengthened by the fact that similar factors are applied to determine whether the Crown has overcome the Presumption and whether a youth sentence would be sufficient to hold the young person accountable for his or her offending behaviour: (a) the seriousness and circumstances of the offence; (b) the age, maturity, character (including sophistication, intelligence and capacity for moral reasoning), background, and previous record of the young person; and (c) any other factors the court considers relevant. […]
 However, as closely connected as the two prongs – the Presumption and the issue of accountability – are, there is a risk associated with considering the Crown’s application to have the young person sentenced as an adult in a blended analysis in which the Presumption and accountability are dealt with together. The risk is that a factor relevant only to one of the two prongs may be relied upon to support a finding in relation to the other. [Emphasis added]
In amplifying the reasoning and problems associated with conflating the two tests as the Crown had suggested, the Court pointed to the very case before it:
 By way of example, an evidence-based assessment of the efficacy of the IRCS program in relation to the particular young person may be a valid consideration in determining whether a youth sentence with an IRCS order meets the principle of accountability. However, the efficacy of the IRCS program is plainly irrelevant to whether the Crown has overcome the Presumption.
 Therefore, in my view, the approach should be to analyze the two prongs of the test separately.
The effect of the Ontario Court of Appeal’s decision of R. v. M.W. & T.F. and it role in assessing adult sentences for youths under the YCJA
There is little doubt that this ruling will be heavily relied upon in sentencing youth convicted of homicides and other select offences where adult sentences are sought by the Crown. The Court of Appeal has not only set a clear guide on how such decision must be made by sentencing judges, but also reminded us of the importance of looking at youths for what they are: people who lack the maturity and moral blameworthiness of adults.
To me, the Court of Appeal got this case right and should be commended for their approach in dealing with youths. As best put by Prof. Bala in, “R. v. B. (D.): The Constitutionalization of Adolescence”
“Some adolescents commit very violent crimes; their impulsiveness, lack of foresight and limited moral development can result in callous, senseless acts that have tragic consequences and understandably shock their communities. Fortunately these crimes are relatively rare, but their relative infrequency and their often brutal nature contribute to the heightened media and public attention when they do occur. There are youths, few in number, who have committed the most serious offences, for whom accountability and protection of the public may require an adult sentence, and perhaps even a lifetime in custody.
It must, however, be appreciated that the limited moral and psychological development of adolescents requires that the justice system should generally hold them less accountable than adults who commit similar offences. Further, adolescents who end up serving all, or a portion, of their sentences in adult correctional facilities may pose a greater risk of re-offending than those who serve their entire sentences in the youth system.59 Thus, the legal regime for young offenders reserves an adult sentence for the exceptional cases, those where a youth has been found guilty of the most serious offence and is likely to pose a significant risk to public safety if an adult sentence is not imposed.
Adult sentencing for the most violent of young offenders may be justified on accountability principles and because of the need to protect society from those who pose a serious long-term risk, but it will not prevent violent youth offending. Placing an onus on the Crown to always justify with extraordinary treatment is consistent with the Supreme Court’s recognition of the constitutional presumption of diminished moral blameworthiness of youth and international law, as reflected in the Convention on the Rights of the Child.
A reduction in serious violent offending cannot be achieved by a legal “quick fix”, but rather requires a resource-intensive combination of preventative, enforcement and rehabilitative services.Although there is no national data on adult sanctioning under the YCJA, it is clear that only a relatively small number of youth have received this sanction. Some argue that increasing the number of youth receiving adult sentences would increase social protection. However, experience and social science research from the United States clearly indicate that increasing the number of youths subject to adult sentences does not have a deterrent effect on other offenders or enhance the protection of society. The unfortunate reality is that those youths who commit the most serious and senseless crimes are precisely those who lack foresight and judgment, and who will not be deterred by adult sentences. Indeed, there is significant evidence that adolescents who are placed in adult prison are more likely to re-offend on release than adolescents who have committed the same offences and have the same prior records but are kept in youth custody facilities. This is not surprising when one considers the relative rehabilitative value and inmate subculture in the different types of custody facilities. [Emphasis added]”