Ontario Criminal


Youth Offenders

Youth Criminal Justice Act

Crown did not rebut presumption of diminished moral culpability

Accused young persons T and M were involved in planning shooting of 16-year-old deceased, and were convicted of first degree murder. M and T were accepted for intensive rehabilitative custody and supervision (IRCS) orders, if sentenced as youth. Youth court judge granted Crown’s application to have adult sentences imposed and gave M and T life sentences with 10 years’ parole ineligibility. M and T had served 2.5 years of their adult sentences. M and T appealed. Appeals allowed; sentences varied. Adult sentences were set aside and youth sentences were substituted, of ten years with IRCS order, six years of which were to be in custody, for M, and ten years with IRCS order, four years of which were to be in custody, for T. Judge erred in concluding that IRCS program would not accomplish necessary rehabilitation by relying on speculative concerns about M and T’s willingness to cooperate with IRCS orders and other inaccurate assumptions about implementation and enforcement of such orders. It was appropriate to exercise discretion to impose maximum youth sentences on top of time served of adult sentence. Crown did not rebut presumption of diminished moral culpability of T or M. T and M were 16 years old at time of offence and resided in community of disadvantaged youths. T and M’s participation in crime did not evidence level of maturity or independent judgment and foresight beyond that of adolescent, but evidenced immaturity, impulsiveness, or other ill-considered motivation. T and M could be held sufficiently accountable for their criminal conduct by imposition of ten-year youth sentence with IRCS order on top of time spent serving adult sentences. Ten-year youth sentence with IRCS order would provide intensive treatment and counselling and was best sentence to meet sentencing objectives of protecting public and rehabilitation.

R. v. W. (M.) (2017), 2017 CarswellOnt 327, 2017 ONCA 22, Gloria Epstein J.A., S.E. Pepall J.A., and K. van Rensburg J.A. (Ont. C.A.); varied (2014), 2014 CarswellOnt 7925, 2014 ONSC 3436, Nordheimer J. (Ont. S.C.J.).

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