Supreme Court clarifies rules around youth sentencing

In a pair of decisions, the Supreme Court of Canada clarified the sentencing rules in serious youth criminal justice cases and made it harder to have them punished as adults.

The Youth Criminal Justice Act sets out a two-part analysis. First, sentencing judges must determine whether they are satisfied that the accused has the reduced moral blameworthiness of youth and doesn’t possess the sophistication and rational judgment of an adult at the time of the crime. Once that has been established, they must be satisfied that a sentence is sufficient to hold the young person accountable and that the established statutory youth sentence is insufficient.

In a 7-2 decision, the top court ruled that sentencing judges must prove beyond a reasonable doubt that the accused has the developmental age of an adult, despite their chronological age in the first prong of that two-pronged test. However, that same standard need not apply to determine whether the youth sentence is insufficient. 

“Proving that a young person has the developmental age of an adult may, of course, be more complicated than proving chronological age, but it is no less a factual inquiry that lends itself just as well to proof beyond a reasonable doubt,” Justice Nicholas Kasirer wrote for the majority.

The majority also emphasized that the severity of the crime is not to be a factor in determining the developmental age. That should be considered only when determining the length of the sentence.

“The seriousness or objective gravity of the offence, for example, while relevant at the second stage of the analysis under s. 72(1)(b) YCJA, has no logical bearing on the determination of whether a young person displays the capacity for moral judgment of an adult at the time of the offence,” Kasirer wrote. 

“As such, it is irrelevant to rebutting the presumption in s. 72(1)(a). At the same time, factors that properly fix on the young offender’s developmental age and capacity for moral judgment, such as their mental health and background, need to be considered where they are part of the record.”

I.M. was 17 years and five months old when he and a group of legal adults planned and carried out a robbery of another 17-year-old with the intent of stealing a firearm. The victim was stabbed and died, and following the attack, I.M. bragged to another student about it and showed him the bloodied clothes before fleeing the country.

The Supreme Court said the sentencing judge did not prove beyond a reasonable doubt that I.M. had the developmental age of an adult, and found his mental health and impulsivity were not taken into account. 

His adult sentence was overturned, and instead, the maximum youth sentence of ten years — of which only six can be spent in a facility—was imposed.

In the case of S.B., he and two other youths planned and carried out the killing of a 16-year-old. After the murder, they directed the cover-up and expressed a desire to kill a third co-accused who had witnessed the death, along with his mother and sister. 

The Court unanimously upheld his adult sentence, however the reasons were split 7-2, with Justices Côté and Rowe offering concurring reasons.

Cori Singer, an associate at Addario Law Group LLP in Toronto, was co-counsel for the Canadian Civil Liberties Association (CCLA), which intervened in the cases. She says the case changes the landscape of youth sentencing.

“The decision affirms that youth have a constitutional right to be treated differently from adults in sentencing, and that the government has a heavy burden to prove that someone under 18 requires an adult sentence.”

The CCLA argued that courts were breaching youths’ constitutional rights by making it too easy for the government to rebut the presumption that they did not have the moral blameworthiness consistent with an adult’s capacity, effectively requiring the youth to argue they should get a youth sentence.

“The result was that too often, minors were being treated like adults and getting adult sentences instead of youth sentences,” Singer says.

The old standard of “satisfied” was below both the criminal standard of beyond a reasonable doubt and the civil standard of a balance of probabilities. The criminal standard now applies.

The CCLA focused its submissions on the presumption as part of the first prong of the sentencing test, insisting it was not just a test in a statute, but a constitutionally protected principle of fundamental justice.

“When the Court talks about the importance of using that [criminal] standard, they’re really using the frame of protecting the Charter rights and reading the statute in light of constitutional imperative,” Singer says.

Vibert Jack, litigation director with the BC Civil Liberties Association, which also intervened in the case, says that the lower courts had overemphasized the seriousness of the offence in both cases in a way that really diminished the importance of the presumption.

“Young people have a diminished capacity for moral reasoning,” he says. 

“We all know that they’re more impulsive; they don’t understand the consequences of their actions. For those reasons, it’s of the utmost importance that we value their potential for rehabilitation. It’s important for everyone, but especially for young people.”

Jack says the seriousness of the offence is irrelevant to the capacity for moral reasoning, as a youth who commits even the most serious offence still has the potential to change, to become better at moral reasoning. That needs to be recognized in sentencing.

“The Supreme Court of Canada agreed with us that the seriousness of the offence should not be considered in the test to rebut the presumption, and that any evidence used to rebut the presumption really needs to go specifically to the capacity for moral blameworthiness of the young person.”

He adds that the decision prevents the presumption from becoming a discretionary assessment by a judge. It also maintains what it should be — a constitutional legal safeguard for young people — and makes clear that there is an imperative under the Charter and international law that youth detention only be used as a last resort.

Jody Berkes, of Berkes Law in Toronto and member-at-large of the CBA’s criminal justice section, says that from the defence bar's perspective, lawyers will be aided in determining moral blameworthiness through tools like Morris reports, Gladue reports, or other psychological evidence.

“The court says that oftentimes, a psychiatrist could testify to shed light on those personal circumstances and how they affect the maturity of the young person.”

Mary Birdsell, the executive director of Justice for Children and Youth, which also intervened in the decision, hopes that the clarity provided by the Court will assist trial judges to proceed with greater consistency.

“We appreciate that understanding the complex social and developmental realities of young people is challenging, and that the assessment of the developmental realities of young people is a complex exercise that requires education, and may require expert assistance,” she said in an email. 

“If we are going to sentence young people and hold them accountable in the criminal legal system in meaningful ways that will serve to realize rehabilitation, we must rise to these challenges.”

Berkes says that being a lawyer is about being able to compartmentalize analyses. While the Court says lawyers need to engage in the first prong, they need to ensure that factors from the second prong don’t bleed into that first step.

“Intellectually, that’s not an easy task,” he says. 

“There is a tendency as human beings to allow a multitude of factors to affect our decision-making.”

The Supreme Court of Canada is cautioning judges that these inquiries have to be kept separate and distinct. He says they’re also cautioning Crowns that when presenting evidence, they shouldn’t be lumping evidence that is properly dealt with in the second step of the inquiry into the first step.

“Judges’ decisions are much better when the lawyers that appear in front of them cite the right test, provide the correct evidence, and give them the tools to make their decision,” Berkes says.