The Defence Toolkit – August 2, 2025: Diminished Moral Blameworthiness

I. Overview

[1] When I.M. was 17 years and 5 months old, he and several others confronted S.T., another 17-year-old, in an alley. The group sought to rob S.T. who they believed was in possession of firearms. S.T. died as a result of knife wounds sustained in the fray. I.M. was convicted of first degree murder by a youth justice court. The Crown sought an order that he receive an adult sentence. The sentencing judge was satisfied that the requirements for an adult sentence order were met, and he sentenced I.M. to life in prison without eligibility for parole before 10 years. The Court of Appeal dismissed I.M.’s appeal. Before this Court, I.M. says the courts below erred in their interpretation of s. 72(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), and those errors in law had a material effect on his sentence. I.M. asks that a youth sentence be imposed in place of the adult sentence of life imprisonment.

[3] The regime for sentencing under the YCJA, like that under the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), applicable to adults, endeavours to hold young persons accountable for their offending conduct through the imposition of sanctions with “meaningful consequences”. But the YCJA does so in a separate system for criminal justice based on “the principle of diminished moral blameworthiness or culpability” (s. 3(1)(b) YCJA). Thus, a youth sentence for first degree murder cannot exceed a period of 10 years, comprised of a committal to custody of no more than 6 years and a placement under conditional supervision in the community (s. 42(2)(q)(i) YCJA). By contrast, the applicable adult sentence for the same offence is life imprisonment, without possibility of parole for 10 years (ss. 235(1) and 745.1(b) Cr. C.).

[4] There is no doubt that the onus of convincing the youth justice court that an adult sentence should be ordered is on the Crown (s. 72(2) YCJA). Section 72(1) YCJA sets out what the Crown must prove. An adult sentence shall be ordered when the youth justice court is satisfied that the “presumption of diminished moral blameworthiness or culpability” of the young person is rebutted and when a youth sentence would not be of sufficient length to “hold the young person accountable” for their offending conduct….

[6]….When an individual is under 18 — when they are a “young person” according to the definition in s. 2(1) YCJA — they are entitled to the presumption of diminished moral blameworthiness in s. 72(1)(a) by virtue of theirchronological age. However, when a young person is shown by the Crown to have the maturity of an adult, they lose the benefit of the presumption that would otherwise mean, because of their age, that they receive a youth sentence under the YCJA. Like the presumption itself, rebuttal of the presumption by the Crown therefore rests on proof of a fact: when the young person’s developmental age, contrary to their chronological age, indicates they have the capacity for moral judgment of an adult, the young person is no longer deserving of the presumption’s benefit. 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.

[7] Importantly, the rule on rebutting the presumption of diminished moral blameworthiness in s. 72(1) YCJA must be read, if its meaning is uncertain, in a manner that conforms to the Canadian Charter of Rights and Freedoms. The Court has decided that there is a principle of fundamental justice under s. 7 of the Charter that young persons are entitled to a presumption of diminished culpability in sentencing (R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at paras. 69-70)….

….In the law of sentencing, this Court’s jurisprudence makes plain that facts that tend to aggravate a sentence must be proved beyond a reasonable doubt as a matter of fundamental justice under the Charter (paras. 78-80, citing R. v. Pearson, [1992] 3 S.C.R. 665, at p. 686, and R. v. Gardiner, [1982] 2 S.C.R. 368, at pp. 414-15).

[8] If the presumption is rebutted, I.M.’s jeopardy is substantially increased in that he faces the adult sentence of life imprisonment for murder as against a youth sentence that cannot exceed 10 years. The Crown must show that, notwithstanding the fact that I.M. was a young person at the time of the offence, his developmental age at that time was that of an adult. This must be done on a standard of beyond a reasonable doubt given that rebutting the presumption amounts to proving an aggravating factor. This is because rebuttal exposes I.M. to the risk of a sentence that is significantly more severe than the youth sentence applicable to first degree murder.[Emphasis by PJM]

[10] Courts have also disagreed on what factors a sentencing judge should consider in determining whether the Crown has successfully rebutted the presumption of diminished moral blameworthiness. 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. 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.[Emphasis by PJM]

[11] If the presumption is rebutted by the Crown under s. 72(1)(a), a second and distinct requirement must be met before an adult sentence can be ordered. Under s. 72(1)(b), the sentencing judge must be satisfied that a youth sentence would be insufficient to hold the young person accountable for the offence.

[12] The Crown again bears the onus to show that the youth sentence — in this case the one that is set out in s. 42(2)(q)(i) YCJA — would be unfit, but the standard of satisfaction is not beyond a reasonable doubt. Here the nature of the inquiry resembles the determination of a fit sentence, an evaluative inquiry involving a discretionary weighing of aggravating and mitigating circumstances relating to the offence and the offender and the balance of competing sentencing principles (see B.J.M., at para. 95).[Emphasis by PJM]

[13] At this stage, the seriousness of the offence is most germane, in that the exercise includes a consideration of whether a youth sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. The profile and background of the offender may again be relevant, but to a different end. At this stage, these matters are not considered in respect of the rationale engaged by the presumption in s. 72(1)(a) relating to the capacity for moral judgment but, instead, to the rationale of accountability to which Parliament speaks in s. 72(1)(b).

[14] In the case of I.M., and with respect for other views, I conclude that the Crown has not shown beyond a reasonable doubt that the presumption of diminished moral blameworthiness has been rebutted at the first threshold step in s. 72(1)(a). The sentencing judge applied the wrong standard to testing the Crown’s onus. The court then considered, as a factor in the calculus, the seriousness of the offence which was a further error of law in that it is not relevant to the inquiry under s. 72(1)(a).

[15] In addition, the sentencing judge did not properly consider aspects of I.M.’s medical history, as revealed by expert medical evidence, and his personal background. Moreover, implications of some of the facts found by the sentencing judge showed I.M.’s immaturity and lack of adult-like capacity for moral judgment at the time of the offence. These matters presented a further obstacle to rebutting the presumption. These errors had the cumulative effect of undermining the sentence which, following the standard of review explained in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44 et seq., is not deserving of deference on appeal.

[16] In the circumstances, this Court must intervene and conduct its own sentencing analysis (Lacasse, at para. 43; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 27)….

….Accepting the sentencing judge’s findings of fact, including those arrived at in respect of the circumstances of the offence, there was evidence before the youth court of I.M.’s difficult upbringing and mental health problems affecting his developmental age relevant to s. 72(1)(a), and demonstrating that his level of maturity was not that of an adult at the time of the offence. Furthermore, the evidence accepted by the sentencing judge also showed that, at the time of the offence, I.M. saw his own conduct in the robbery as an occasion to prove his worth to adult peers as a criminal. Four days after the event, I.M. also imprudently recounted his wrongful conduct to a schoolmate. These facts were not just proof of I.M.’s involvement in the crime, as the sentencing judge rightly noted, but also reflected signs of incautious bravado, lack of adult-like reasoning and I.M.’s immature susceptibility to untoward adult influence at the time of the offence.

[18]  For the reasons that follow, I would allow the appeal, set aside the judgment of the Court of Appeal, quash the youth justice court’s decision, and sentence I.M. afresh as a young person under s. 42(2) YCJA. I hasten to say that, I.M. remains no less accountable at sentencing for the offence he committed in 2011 as a young person….

A. The Two Prongs of Section 72(1) Should Be Considered Separately

[85] I agree with I.M. that s. 72(1) creates a two-pronged onus for the Crown and that sentencing judges should engage separately with the inquiries under s. 72(1). This is the most natural reading of the text of the provision. Considering the grammatical and ordinary meaning of s. 72(1), the words and structure of the provision suggest that Parliament intended these inquiries to be treated separately. In the English version, the two prongs are set out in independent paragraphs and are separated by the conjunction “and”, suggesting that there are two inquiries. It is also implicit in the phrasing and structure of the French version that both prongs must be independently satisfied. Furthermore, the ordinary meaning of the words in each paragraph indicates that the inquiries are different in nature. While the first paragraph requires the court to be satisfied the Crown has rebutted the “presumption of diminished moral blameworthiness” — a concept that is not defined in the statute — and sets out no other criteria, the second directs the court to consider specific provisions of the YCJA setting out the purpose and principles of sentencing in assessing the issue of accountability. The presumption is also listed as the first requirement, suggesting it is indeed a threshold consideration.

[87] ….Under the current s. 72(1), the Crown now has the burden to prove that a youth sentence is insufficient to hold the offender accountable. In addition, Parliament added the first prong, requiring the Crown to rebut the presumption of diminished moral blameworthiness. This interpretation is consistent with the broader context of the provision.

[88] ….Since the presumption must be rebutted for an adult sentence to be compliant with the Charter (paras. 70 and 76-78), a test with two separate prongs ensures that the presumption is given constitutional force by being assessed independently, before further consideration is given to whether a youth sentence would be of sufficient length to hold the young person accountable. I agree with the view that the blended approach to ss. 72(1)(a) and 72(1)(b) called for by the Crown flies in the face of the text of the provision which separates the two prongs; it fails to take account of the context and purpose of the YCJA that enshrines, distinct from accountability, the general principle of diminished moral culpability of young persons enshrined in s. 3(1)(b). And practically speaking, it is unworkable in that it would bring irrelevant factors such as seriousness of the offence into the evaluation of the applicability of the presumption, thereby distorting the analysis required of sentencing judges under s. 72(1)(a) (see Henderson, at para. 38).

[89] ….As Epstein J.A. observed in W. (M.), the YCJA recognizes young people as “constitutionally different” from adults for sentencing purposes (para. 163; see also R. v. Chol, 2018 BCCA 179, at para. 38; Okemow, at para. 52). As I will explain below, rebutting the presumption of diminished moral blameworthiness must therefore depend on the personal attributes of the offender that speak to their developmental age, rather than any objective assessments of fault that may flow from the offence at issue. To rebut the presumption, then, the sentencing judge must determine whether the young person’s presumed diminished moral blameworthiness is contradicted by their actual personal attributes. As I seek to explain further below, this is a factual question that ultimately asks whether, at the time of the offence, the developmental age of the young offender was akin to that of an adult.

B. Rebutting the Presumption of Diminished Moral Blameworthiness (Section 72(1)(a))

(1) The Presumption as a Principle of Fundamental Justice

[96] When a young person is sentenced, the separate regime of the YCJA applies because the offender is presumed to have diminished moral blameworthiness based on their chronological age. In D.B., this Court recognized the presumption as a principle of fundamental justice protected by s. 7 of the Charter (para. 76). Section 72(1) YCJA was subsequently amended to codify this principle, which was also enacted as a guiding principle for the whole of the YCJA in s. 3(1). In interpreting s. 72, this Court must determine how the Crown goes about meeting its onus to rebut the presumption of diminished moral blameworthiness that would otherwise justify a youth sentence.

[100] ….Drawing on s. 7’s residual protection for the presumption of innocence, Abella J. recognized the presumption of diminished moral blameworthiness as a principle of fundamental justice under s. 7 of the Charter (paras. 45-69 and 80), and held that the onus provisions in the presumptive offences regime unjustifiably violated s. 7 of the Charter. The Court found that imposing the burden on young offenders to rebut the presumption of an adult sentence undermined the central premise of the youth justice system: that young people are less morally culpable than adults due to their developmental immaturity (D.B., at paras. 66 and 68).

[102] While the presumption is rebuttable, s. 72(1)(a) imposes on the Crown a heavy onus to justify the imposition of an adult sentence given its status as a principle of fundamental justice as recognized by the Court in D.B. (paras. 45 and 68)….

(2) The Crown Must Prove That the Developmental Age of the Young Person Is That of an Adult

[104] As we shall see, the jurisprudence and scholarly commentary in youth matters have recognized that adult-like maturity and the capacity for moral judgment develop over time, echoing an idea Parliament gave voice to in the opening paragraph of the preamble to the YCJA: that “members of society share a responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood”. This Court’s judgment in D.B. recognized, at para. 62, that while age plays a role in the development of judgment and moral sophistication, chronological age and maturity may not be one and the same. In connection with the rebuttal of the presumption, it is important to note that a young person’s developmental maturity does not necessarily coincide with their chronological age.

[108] In other words, since developmental age underlies a young person’s presumed diminished blameworthiness, it must be the focus of the inquiry on an application to impose an adult sentence to remove the protection afforded by the presumption. Just as the presumption rests on a clear factual basis of chronological age, developmental age is similarly a factual inquiry, even if it is perhaps less straightforward. The Crown’s onus is not merely a procedural protection, as the Crown emphasizes (R.F., at para. 97), but a substantive protection. As I will explain, it requires the Crown to satisfy the court that the young offender’s developmental profile is inconsistent with that presumed of a typical youth — that they possess adult-like maturity, capacity for moral judgment, and independence (D.B., at paras. 41-47; see also Parkes, at pp. 12-14).[Emphasis by PJM]

[111] ….Expanding on W. (M.), in Chol, Stromberg-Stein J.A. articulated a non-exhaustive list of factors that could be relevant to the inquiry, including the young person’s independence or dependence on others, cognitive limitations, emotional or mental health issues, the maturity or immaturity of the reasoning behind the motive of the offence, and whether the actions demonstrated critical and adult-like judgment (para. 61).

(3) The Standard of Proof To Meet the Crown’s Onus To Rebut the Presumption Is Beyond a Reasonable Doubt

[117] As I will explain, I agree with the appellant. In my view, the Crown must rebut the presumption beyond a reasonable doubt as the inquiry under s. 72(1)(a) is factual in nature and can expose the young person to a more severe sentence.

(4) The Factors Relevant to the Crown’s Onus When Rebutting the Presumption

[131] ….This exercise is undertaken by considering factors that provide insight into the young offender’s personal developmental attributes at the time of the offence. This assessment is inherently fact-specific, nuanced, and contextual (see Chol, at para. 60). While it cannot be reduced to a rigid formula or checklist, the circumstances of the offender or evidence that speaks to the developmental age of the young person at the time of the offence will be most relevant (see D.B., at para. 41; W. (M.), at para. 98; Okemow, at para. 62; Chol, at paras. 43 and 61).

[132] Factors that speak to the offence, rather than the young offender, are beyond the scope of this inquiry unless they show something about the offender’s personal attributes reflecting their developmental age.

(a) Seriousness of the Offence Is Not Relevant to the Presumption

[135] I agree that courts should not weigh the objective seriousness of the offence in determining whether the Crown has rebutted the presumption, although not every abstract reference to seriousness will necessarily be an error. Moreover, the circumstances of the offence may be relevant if they clarify the youth’s developmental age at the time of the offence. I first address this issue before turning to other factors.

[140] ….In my view, factors that speak to the objective gravity of the offence, rather than the young offender, are irrelevant to this inquiry as they would not shed light on the offender’s developmental attributes.

[142] Consideration and weighing of the objective seriousness of an offence as a factor under the presumption is therefore an error in principle. However, I note that not every reference to objective gravity or seriousness will result in a reviewable error if it is plain that it did not impact the sentencing judge’s conclusion on the presumption and that the judge was focused on developmental age.

[143] ….While the factual circumstances of an offence may provide insight into an offender’s developmental age relevant to the first prong, they do not alter the offence’s inherent gravity (see para. 76; R. v. Hills, 2023 SCC 2, at para. 58). Maintaining this distinction ensures that s. 72(1)(a) remains focused on the young person’s developmental maturity rather than the objective gravity of the offence. A violent crime, however serious in character, tragic in consequence or troubling in execution, is not inherently indicative of a young person with the developmental age of an adult.

[145] In contrast with the objective seriousness of the offence, the circumstances of the offence may be a relevant consideration under the first prong of s. 72(1)(a), but only insofar as they offer insights into the young person’s developmental age….

[146] ….Courts must therefore exercise caution: the violent character of the commission of a crime, while relevant — like the seriousness of the offence — to the young person’s accountability under s. 72(1)(b), may not always carry relevant information to rebutting the presumption of diminished moral blameworthiness. Young persons may commit violent crimes in grim circumstances impulsively or to impress others, in ways that reflect a diminished capacity for adult-like judgment….

[147] Relevant considerations under s. 72(1)(a) may include whether the conduct is consistent with the presumed lesser maturity of the young offender, such as impulsiveness or bravado (R. v. A.M., 2024 ONSC 5323, at paras. 62-64). A young person’s impulsive reaction in the course of committing an offence can reflect a sense of invincibility that indicates immaturity, while deliberate planning may suggest more advanced moral and cognitive development as it may demonstrate that they engaged in critical thinking, considered planning, adult-like judgment, or demonstrated an understanding of the consequences of their actions (Chol, at para. 61). Yet, as noted by the intervener Justice for Children and Youth, even young offenders are capable of some degree of planning and deliberation. The focus must remain on whether the offender’s planning, combined with other considerations, reveals a level of sophistication and foresight that aligns with adult-level reasoning, rather than merely identifying the presence of planning.

[148] Similarly, a young offender’s post-offence conduct — that is, after-the-fact conduct temporally linked and related to the offence at issue — may be potentially informative, but warrants some caution in its consideration. I agree with the Court of Appeal that post-offence conduct may demonstrate a “level of maturity, moral sophistication, and capacity for independent judgement” (para. 81, citing W. (M.), at para. 98). Certain types of post-offence conduct — such as attempts to evade detection, destroy evidence, or mitigate the harm — may, depending on the case, suggest sophistication and capacity to form moral judgment.

[149] However, such conduct can also reflect impulsive reactions driven by juvenile fear and panic, rather than adult-like calculation (Chol, at para. 61). Post-offence conduct must be examined in context to avoid misinterpretation or overemphasis. The overarching question is whether the circumstances of the offence shed light on the offender’s developmental age in light of their broader personal attributes.(b) Factors Related to Personal Circumstances of the Offender.

(b) Factors Related to Personal Circumstances of the Offender

[151] Personal circumstances of the offender relevant to rebutting the presumption will be individualized, offender-centric evidence that the young person’s developmental age is akin to that of an adult. This may include the young person’s actual age, background, sophistication in thinking, capacity for independent judgment, behaviour after the offence, whether the person was living like an adult, cognitive, emotional and mental health, and susceptibility to external influences among others (Chol, at para. 61; W. (M.), at para. 98; R.D.F., at para. 37; C. C. Ruby, Sentencing (10th ed. 2020), at §22.48).

[152] An offender’s chronological age is an important personal attribute, as it helps anchor further developmental considerations. However, age is only one factor, and it cannot eclipse other indicators of the young offender’s developmental age as a matter of course (see A.M., at paras. 65-66)….

[153] It may well be true, as a common-sense generalization, that a young person very near to their 18th birthday will likely be more mature than, say, a 14- or 15-year-old in respect of whom s. 64 YCJA adult sentencing applications may also be brought. By the same token, common-sense generalizations about the maturity of 14-year-old offenders compared to those who are on the cusp of 18 may fairly suggest that the 14-year-old is less likely to have the developmental age of an adult. In all cases, however, fixing developmental age remains an individualized factual determination that cannot be cut short by a common-sense generalization based on chronological age that is insufficiently sensitive to the offender’s particular circumstances.

[155] Evidence of cognitive and emotional limitations, including behavioural disorders or mental health issues may also assist sentencing judges when determining the young offender’s developmental age. These factors do not excuse criminal conduct but may demonstrate the young person’s presumed vulnerability, reduced maturity and reduced ability to exercise independent judgment and capacity to make rational, informed decisions at the time of the offence (see R.D.F., at para. 37; Chol, at para. 61; R. v. Z.A., [2023] EWCA Crim 596, [2023] 2 Cr. App. R. (S.) 45 (p. 404), at para. 52; on cognitive trauma in young persons more generally, see also R. v. Brown, [2013] NICA 5, at para. 7; Bugmy v. The Queen, [2013] HCA 37, 302 A.L.R. 192, at para. 43; R. v. Amos, [2012] NSWSC 1021, at paras. 43 and 82). A young person with cognitive impairments may struggle to foresee the consequences of their actions or fully appreciate the harm caused to others, underscoring their diminished capacity for moral judgment.

[156] A young offender’s history and background are also relevant, as they can significantly shape a young person’s behaviour and judgment, and by extension, their development (s. 72(1)(a); Chol, at para. 61; B.J.M., at para. 110). That said, a young offender’s background encapsulates many aspects. Social context evidence, which I will consider below, may be relevant. Moreover, certain experiences, such as exposure to traumatic events, may fundamentally change their worldview and therefore their vulnerability, maturity, and capacity for moral judgment.

[159] Finally, although I.M. initially argued that expert evidence would always be necessary to assist in a youth justice court’s determination of whether the presumption is rebutted, at the hearing, this point was properly conceded. In my view, expert evidence is not required to rebut the presumption, though it may provide valuable assistance in certain cases (see, e.g., R. v. B.J.M., 2022 SKPC 38 (“B.J.M. Prov. Ct.”), at para. 47). This reflects the balance struck by Parliament in s. 72(1) to grant flexibility to sentencing judges to determine the most appropriate tools for assessing a youth offender’s moral blameworthiness when considering the practical realities of sentencing.

[160] Section 34(2) YCJA authorizes youth justice courts to order an assessment by a qualified expert on an application for an adult sentence. Section 34(1) permits youth justice courts, in their discretion, to determine whether to order a youth offender to be assessed by a qualified person, provided that the court believes a psychological report is necessary for an enumerated purpose and the young person is alleged to have committed a “serious violent offence”. Section 34(3) provides courts with the authority to remand a youth offender into custody to facilitate the preparation of such an assessment. While these assessments are distinct from expert evidence that may be tendered by the Crown or defence, they serve as a useful resource for courts in evaluating a youth’s developmental maturity.

(c) Social Context Evidence Relevant to Rebutting the Presumption

[164] This Court has addressed in a number of cases the mandatory direction in s. 718.2(e) Cr. C. that sentencing judges consider the unique situation of Indigenous offenders (R. v. Gladue, [1999] 1 S.C.R. 688, at para. 93; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 84-85). However, it has also generally recognized that an offender’s background and personal circumstances are relevant to their individual moral responsibility (Hills, at para. 58), and that systemic factors will be important in sentencing non-Aboriginal offenders as well (Gladue, at para. 69; Ipeelee, at para. 77). While this Court has not yet specifically considered the role of social context evidence in the sentencing of non-Indigenous offenders, jurisprudence from provincial appellate courts indicates that it can provide helpful guidance to understand the particular experience of an offender and their moral culpability. This is especially true with respect to offenders who belong to racialized groups who face overt and systemic discrimination (see Morris; R. v. Anderson, 2021 NSCA 62, 405 C.C.C. (3d) 1; R. v. Ellis, 2022 BCCA 278, 417 C.C.C. (3d) 102, at para. 78; R. v. C.K., 2022 QCCA 539, at para. 22; R. v. Pierre, 2023 ABCA 300, at para. 6; see also Hills, at para. 55).

[165] ….I recall that the YCJA expressly directs that measures taken against young persons should respect “ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons” (s. 3(1)(c)(iv))….

[166] The social context in which a young offender grows up can often affect the trajectory of their life. Understanding that trajectory helps place the young offender’s decisions in context, potentially demonstrating increased vulnerability, diminished judgment, and a reduced capacity for moral decision making. As the court explained in Morris, “an offender’s life experiences can . . . influence the choices made by the offender, and can explain, to some degree at least, why an offender made a choice to commit a particular crime in the specified circumstances” (para. 75). For example, as the intervener Justice for Children and Youth submits, gang affiliation can for some young persons act as a “refuge-seeking response to social dislocation or a lack of family stability, physical protection, or emotional or financial support” (I.F., at para. 33)….

C. Assessing Whether a Youth Sentence Would Not Be of Sufficient Length To Hold the Young Person Accountable (Section 72(1)(b))

(1) The Onus on the Crown To Satisfy the Sentencing Judge That an Adult Sentence Is Required for Accountability Under Section 72(1)(b)

[169] ….Once the Crown meets its burden of rebutting the presumption in s. 72(1)(a), it must still demonstrate that a youth sentence would be insufficient in length to hold the young person accountable for their wrongful conduct under s. 72(1)(b) to obtain an order for an adult sentence. The exercise under s. 72(1)(b) relates to assessing the fitness of a youth sentence in the circumstances. As such, the burden on the Crown is to satisfy the sentencing judge in the exercise of their discretion that the youth sentence is not of sufficient length to hold the young person accountable. Unlike s. 72(1)(a), the burden on this prong is not beyond a reasonable doubt but one of satisfaction, suited to the kind of discretionary exercise sentencing judges typically undertake when weighing competing factors to determine a fit sentence.

[171] Accountability under the YCJA reflects an equilibrium between different purposes: [TRANSLATION] “Rather than adopting a strictly punitive approach, the YCJA favours accountability aimed at transforming the young offender through measures tailored to their development and their capacity for reintegration” (Destrempe Rochette, at p. 72). For example, the YCJA requires sentencing judges to consider, in measuring the proper sanction to be imposed, the harm caused to victims (ss. 3(1)(c)(ii) and 38(3)(b)), alongside rehabilitation and reintegration into society, which are all understood to “contribut[e] to the long-term protection of the public” (s. 38(1)). The rules in the YCJA are different from those that apply to adult offenders, recognizing, as one scholar noted, an understanding that “children cannot be viewed merely as chronologically younger than adults, but rather as inherently vulnerable and immature human beings whose behavioural development and character formation remains ongoing” (Jones, at p. 97).

[172] ….This is an inherently contextual task rooted in judicial discretion (paras. 46-50). Accordingly, an assessment of the appropriateness of a youth sentence does not lend itself to proof beyond a reasonable doubt (see B.J.M., at paras. 91-99).

(2) Factors Relevant to Accountability Under Section 72(1)(b)

[174] The assessment under s. 72(1)(b) is not merely procedural or perfunctory. It engages with fundamental principles of youth sentencing, particularly those outlined in ss. 3(1)(b)(ii) and 38. A young offender does not lose the statutory guardrail of s. 72(1)(b) simply because they are developmentally mature. The statutory context makes clear that the accountability inquiry is not a foregone conclusion once the presumption inscribed in s. 72(1)(a) is rebutted; it remains a distinct and essential assessment.

[175] ….The fact that a youth’s developmental age may be comparable to an adult does not, in itself, justify the imposition of an adult sentence.

[176] Similarly, s. 38(2)(c) links proportionality to the seriousness of the offence and the offender’s degree of responsibility, while also prioritizing rehabilitation and restraint over denunciation and deterrence. Notably, general deterrence is excluded as a sentencing objective for young persons (R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 4). This is further reinforced by the YCJA’s provisions on custodial sentences. For example, s. 39(1) restricts such sentences to exceptional cases (C.D., at para. 39). Even for first degree murder, the maximum custodial sentence under the YCJA is six years (s. 42(2)(q)(i)). These principles inform the meaning of accountability under s. 72(1)(b).

[178] The breadth of the discretionary inquiry under the second prong necessarily includes examining relevant aspects of the offender’s background to better understand their choices leading to, and their individual responsibility for, the crime (Hills, at para. 58). Accordingly, sentencing judges must balance the aggravating and mitigating circumstances of the offence and the offender, including their post-offence conduct and pre-sentence behaviour, to determine if a youth sentence falls short of delivering meaningful accountability. The assessment thus parallels the determination of a fit sentence, which must balance the offence’s gravity with the offender’s culpability (L.M., at para. 17; Ruby, at §23.6; Vauclair, Desjardins and Lachance, at para. 47.2).

[179] As the Court of Appeal decided in the companion case of S.B., social context evidence is often indispensable in assessing a young person’s accountability (R. v. S.B., 2023 ONCA 369, 426 C.C.C. (3d) 367, at para. 71). I agree. Such information can shed light on the vulnerabilities arising from the offender’s background and therefore may assist in establishing a nuanced understanding of the offender’s conduct and culpability (see Morris, at paras. 13 and 97; see also Hills, at paras. 55 and 58). For example, evidence of socioeconomic disadvantage and exposure to violence may indicate that a harsher, adult‑style sentence is not appropriate, as it could exacerbate the young person’s vulnerabilities. Thus, social context evidence plays a dual role under s. 72(1). While it may be critical in the factual inquiry under the first prong, it is equally vital to understanding whether the available youth sentence would sufficiently hold the young offender accountable.[Emphasis by PJM]

[181] In sum, the accountability inquiry under s. 72(1)(b) must be understood as a distinct, normative decision that is predicated on — and only follows after — a rigorous factual inquiry into developmental age. It requires courts to balance the principles of proportionality, accountability, and rehabilitation in determining whether a youth sentence is adequate. This analysis reflects the YCJA’s overarching goals of promoting meaningful consequences, fostering reintegration, and addressing the harm caused by youth offences. By grounding the inquiry in these principles, judges can ensure that decisions are fair, individualized, and consistent with the needs of young offenders.

VIII. Application

B. Errors in Principle Justify Intervention by This Court

[187] First, the sentencing judge erred in law by applying the wrong standard of proof to the Crown’s burden under s. 72(1)(a). The presumption of diminished moral blameworthiness requires the Crown to establish, beyond a reasonable doubt, that the young person’s developmental age, at the time of the offence, was akin to that of an adult. Instead, the sentencing judge applied a lower threshold, requiring only “satisfaction after careful consideration by the court of all the relevant factors” (para. 25, quoting B.L., at para. 36). This failure to apply the correct standard constitutes an error in principle. By lowering the burden on the Crown, the sentencing judge distorted the required analysis, making it significantly easier to rebut the presumption than constitutionally required.

[190] Secondly, the sentencing judge in the present case erred by improperly considering the seriousness of the offence at the first prong. He considered this factor at the outset of his reasons. Although the sentencing judge recognized that this factor did not alone justify an adult sentence (at para. 29), it was in point of fact irrelevant to rebutting the presumption altogether. He then noted it again as a key factor in his ultimate conclusion that I.M. demonstrated the maturity, moral sophistication, and capacity for independent judgment of an adult (para. 38). Respectfully stated, this reasoning reflects a legal error. The objective seriousness of the offence does not speak to, and has no bearing upon, a young person’s developmental age.

C. Resentencing I.M. on Appeal

(1) The Crown Did Not Discharge its Burden To Rebut the Presumption Under Section 72(1)(a)

[199] At the time of the offence, I.M. was 17 years and 5 months old. It was not a mistake for the sentencing judge, or for the Court of Appeal, to observe that I.M. was on the “cusp” of his 18th birthday when he committed the offence (he was in fact about 7 months away from that date). But, at best, it was one contextual factor among others relevant to developmental age. I.M. was no less entitled, by statute and as a matter of constitutional law, to the benefit of the presumption of diminished moral culpability simply because he was close to coming of age. While proximity to adulthood may lean in favour of rebutting the presumption, it is not sufficient. Even those on the cusp of adulthood are presumed to have diminished moral blameworthiness in the absence of contrary evidence. On re-sentencing, the Court must begin from the premise that I.M.’s developmental age is coincident with his chronological age at the time of the offence. If the Crown is unable to prove otherwise beyond a reasonable doubt, then I.M. remains entitled to the benefit of the presumption and must be sentenced as a young person and held to account for the murder for which he was convicted under s. 42(2) YCJA.[Emphasis by PJM]

[200] I turn first to the sentencing judge’s findings of fact in respect of the violent circumstances of the murder of S.T. and I.M.’s role in the death. The sentencing judge fairly relied on such facts to assess the extent of I.M.’s involvement in the offence, as signs that I.M. planned the robbery in an adult-like manner. However, on closer inspection, some of these facts also raise questions about I.M.’s impulsiveness, susceptibility to peer influence, and propensity for risk-taking.

[201] First are the facts surrounding I.M.’s motivations for getting involved in the robbery that led to S.T.’s murder. The Crown points to evidence showing that I.M. wanted a firearm in the period leading up to and following the offence (R.F., at para. 8 and passim). It alludes to the text message I.M. sent to one of the adult co-conspirators that he — I.M. — saw the robbery as his “cum.up” to a more serious career in crime (para. 9). I accept, as the sentencing judge did, that these facts speak to I.M.’s involvement. At the same time, the “cum.up” framing is also consistent with adolescent risk-taking, susceptibility to influence of older criminal actors, and a young person’s failure to measure consequences as carefully as someone with the developmental age of an adult. These facts raise at least some reasonable doubt as to I.M.’s alleged developmental maturity. The Crown, in my view, gave no consideration to this matter and did not dispel the negative inferences it raises in rebutting the presumption.

[202] Second are the facts surrounding I.M.’s interactions with his schoolmate G.D. soon after the offence. The sentencing judge relied on G.D.’s testimony that I.M. described his involvement in S.T.’s death and showed him a bloodied shirt. The judge cited this as evidence “[i]mplicating I.M.” and as post-offence conduct that exacerbated the seriousness of the murder (heading of para. 11; see also para. 33). For I.M. to declare to a young peer four days after the event that he stabbed another youth, and to then display the victim’s bloodied clothes, was ill-considered and imprudent in the extreme. It showed bravado consonant with the impulsivity of an adolescent and stood in contrast to the capacity for moral judgment that one would expect from an adult. While these findings may establish I.M.’s role, they also stand as an obstacle that the Crown must overcome to rebut the presumption.

[205] On its face, I.M.’s difficult life circumstances are suggestive of a heightened vulnerability that reinforces, rather than overcomes, the presumption of diminished moral blameworthiness (D.B., at para. 41). Situating I.M.’s early criminal involvement in this context supports the view that his behaviour is consistent with adolescents’ susceptibility to peer pressure, proneness to risk-taking, and tendency to not appreciate long term consequences. The Crown’s onus required it to explain how, notwithstanding these difficulties, I.M. had the moral sophistication and capacity for judgment beyond his years at the time of the offence.

[206] The record before this Court does not support this conclusion. The Crown’s mistaken insistence on a holistic approach to ss. 72(1)(a) and 72(1)(b) based on moral blameworthiness meant that it neglected to address how I.M.’s background affected his developmental age. The Crown did not address how evidence concerning I.M.’s background was relevant to his vulnerability or to his capacity for moral judgment. The Crown failed to discharge its burden on this point as well.

[207] I.M.’s mental health at the time of the offence presents yet another obstacle in the face of the Crown’s position. The most direct evidence in this regard comes from Dr. Pearce’s forensic psychiatric report. The sentencing judge relied on Dr. Pearce’s evidence to conclude that I.M.’s “adolescent-onset conduct disorder” and other mental health problems meant that his rehabilitative prognosis at that time was negative (para. 59). However, Dr. Pearce’s report also sheds light on I.M.’s developmental maturity. He observed that I.M. exhibited impulsivity and poor emotional regulation, both of which are characteristic of youth who have not yet developed full adult moral judgment. He found that I.M.’s peer delinquency, supervision failures, and low school achievement reflected social susceptibility, external instability, and limited cognitive development (A.R., vol. I, at pp. 120-22).

[208] In all, these findings undermine the Crown’s proposition that I.M. exhibited adult-level reasoning and judgment at the time of the offence, roughly eight years prior to Dr. Pearce’s examination. The Crown’s submissions with respect to Dr. Pearce’s assessment do not overcome the doubt that his report raises: in this Court, the Crown noted simply Dr. Pearce’s conclusion that it was unclear to him that I.M.’s ingrained maladaptive personality traits and adolescent-onset disorder affected his rehabilitative prognosis in 2019. Nothing is said by the Crown about the impact of I.M.’s mental health problems on his capacity for moral judgment at the time of the offence (R.F., at para. 110).

[211] In sum, there is some evidence on the record that supports the Crown’s argument that the presumption of diminished moral blameworthiness has been rebutted. There remains, however, important unanswered evidence of impulsivity and conduct shaped by adult peer influence: I.M.’s “cum.up” comment, his boastful description to G.D., his decision to show the bloodied clothing, and Dr. Pearce’s report. These facts leave one with the impression that I.M. showed signs of youthful bravado, impulsivity and propensity to risk-taking. They also suggest that he was susceptible to peer influence and adult pressure. The reasonable doubt that arises with these facts presents an obstacle to the Crown’s argument that the presumption has been rebutted.

[212] Viewing the evidence in its totality on re-sentencing, I conclude the Crown has failed to discharge its onus to rebut the presumption of diminished moral blameworthiness. It was incumbent on the Crown to demonstrate, beyond a reasonable doubt, that I.M.’s developmental age was that of an adult, and dispel the evidence suggesting that I.M.’s developmental age — psychologically, socially, and morally — was in fact consonant with his chronological age. There is no question that sentenced as a young person I.M. will be held to account for his criminal conduct, but that is not the inquiry under s. 72(1)(a). In the absence of a demonstration by the Crown that displaces the presumption to the standard of beyond a reasonable doubt, I.M. remains entitled to be sentenced as young person.

IX. Disposition

[223] I would allow the appeal, set aside the adult sentence imposed by the sentencing judge, and sentence I.M. afresh by imposing on him a youth sentence of six years of committal to custody and four years of placement under conditional supervision pursuant to s. 42(2)(q)(i) YCJA, calculated from July 31, 2020, the date of the sentencing judge’s reasons…..