Adult Sentences and the YCJA

On January 13, the Ontario Court of Appeal released its decision in R. v. M.W. and T.F. 2017 ONCA 22. The judgment clarified the test for an adult sentence under the YCJA. This blog post will merely summarize the key points of the decision.

Young persons are entitled to a presumption of diminished moral culpability. This was established by the Supreme Court of Canada in R. v. D.B. 2008 SCC 25.

This presumption assumes that all young people start from a position of lesser maturity, moral sophistication and capacity for independent judgment than adults.

As a result of this presumption, young persons must normally receive a youth sentence under the YCJA. However, the Crown may apply under s. 64(1) of the YCJA for a young person to be sentenced as an adult, if certain criteria are met.

Those criteria are found in section 72(1) of the YCJA. It was amended in 2012 to expressly include the presumption of diminished moral culpability, which was recognized in R. v. D.B.: see S.C. 2012, c. 1, s. 183(1). It reads as follows:

72 (1) The youth court shall order that an adult sentence be imposed if it is satisfied that

(a)  the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(b)  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.

Before a youth court judge can sentence a young person as an adult, the Crown must satisfy the court that the presumption of diminished moral blameworthiness to which the young person is constitutionally entitled has been rebutted and that a youth sentence would not be of a sufficient length to hold the young person accountable for his or her offending behaviour. In R. v. M.W. and T.F, the Court of Appeal clarified that to be successful in an application to impose an adult sentence, the Crown must satisfy both parts of the test.

In order to rebut the presumption of diminished moral blameworthiness, 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.

The Crown must also satisfy the youth justice court that a youth sentence will not be sufficient to hold the young person accountable for his or her criminal behaviour. The focus here is typically on the duration of the maximum youth sentence available.

The Court of Appeal recognized there is a link between the two tests and 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. At para 105 the Court notes these include:

  • (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

The Court cautioned however that the two prongs must be approached separately and that there is a risk that courts may apply one factors inappropriately to one part of the test when it is only relevant to the other part of the test.

Fundamentally, youth justice courts must remember that young persons are “constitutionally different from adults for sentencing purposes”, and approach applications for an adult sentence appropriately: see para 163.

Author: Brock Jones

Criminal lawyer practicing in Toronto. Former adjunct professor of law, University of Toronto. Author of Prosecuting and Defending Youth Criminal Justice Cases from Emond Publishing. My personal views are posted on this blog. Any views or opinions expressed do not represent the views of the Ministry of the Attorney General or the Government of Ontario. http://www.emond.ca/prosecuting-and-defending-youth-criminal-justice-cases-a-practitioners-handbook.html

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