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Criminal - Youth Criminal Justice Act (YCJA) (2). R. v. I.M.
In R. v. I.M. (SCC, 2025) the Supreme Court of Canada allowed a criminal YCJA appeal, this from an Ontario CA decision that upheld the sentencing of a youth as an adult [under YCJA s.72(1)].
Here the court considers key statutory and doctrinal bases of the YCJA regime, particularly the sentencing provision that allows a youth to be sentenced as an adult [YCJA s.72(1)]:V. Statutory Context for the Appeal
[56] A review of the statutory context for applications by the Attorney General to have a young person sentenced as an adult is essential to discerning the proper interpretation of s. 72(1) YCJA, a matter at the core of this appeal. The parties have rightly argued the case on the basis that the amended s. 72 applies to I.M.[1]
[57] Under the YCJA, a “young person” is someone between the ages of 12 and under 18 years old (s. 2(1)); the Act applies to persons 18 and over, like I.M., who committed an offence while a young person (s. 14(5)). In Canadian law, a person cannot be convicted of an offence in respect of conduct on their part while less than 12 years old (s. 13 Cr. C.). While a child of that age is, under statute, doli incapax (i.e. deemed to be incapable of committing a crime), a young person 12 and over and under 18 can be convicted of a criminal offence, including a “serious offence”, as defined in s. 2(1), for which the maximum punishment is imprisonment for 5 years or more.
[58] This is a sentence appeal. The order made by the youth justice court to sentence I.M. as an adult is, on appeal, considered to be “part of the sentence” (ss. 37 and 72(5) YCJA). In addition to setting out the basis for the imposition of an adult sentence to a young offender, s. 72 also includes a direction that the onus under s. 72(1) falls to the Attorney General. As amended in 2012, s. 72(1) sets out the requirements for imposing an adult sentence, providing that the Crown must satisfy the youth justice court that the presumption of diminished moral blameworthiness is rebutted and that an adult sentence is necessary to ensure accountability. This test is central to the outcome of the present appeal. The Crown has the burden to demonstrate why a sentence imposed in accordance with the specific sentencing principles of the YCJA is inadequate in the particular circumstances of the case (D.B., at paras. 82 and 93; W. (M.), at para. 154). Section 72(2) places the burden of proof entirely on the Crown.
[59] Section 72 provides:72(1) The youth justice 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.
(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.
(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.
(3) In making an order under subsection (1) or (1.1), the youth justice court shall consider the pre-sentence report.
(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.
(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) or (1.1) is part of the sentence. [61] Section 72 appears in Part 4 of the YCJA, entitled “Sentencing”. After conviction but prior to I.M.’s sentencing under the YCJA, the Crown brought an application before the youth justice court for an order that an adult sentence be imposed on I.M. for first degree murder. Under s. 64 YCJA, the Attorney General can bring an application in respect of a young person over 14 years old who has been found guilty of an offence for which an adult is liable for imprisonment for more than 2 years. Both those conditions are met here.
[62] The YCJA applies to “serious violent offence[s]” defined in s. 2(1) YCJA to include murder, attempted murder, manslaughter and aggravated sexual assault. A young person may thus be properly sentenced for murder under the YCJA. The Crown can, as it did here, bring an application for an offender to be sentenced as an adult, although the effect of s. 64 is to preclude an application for offenders who are 12 or 13, even those who have been convicted of murder. In the eyes of Parliament, 12- and 13‑year-olds are too young to be properly sentenced as adults, even for a violent crime such as murder. Moreover, unless the Crown brings a successful application under ss. 64 and 72, young persons aged 14 to 17 are sentenced for their crimes under Part 4.
[63] The YCJA includes a Declaration of Principle in s. 3 that outlines a series of principles that apply to the whole of the Act, including the rules on sentencing in Part 4, and a direction at s. 3(2) that the YCJA be interpreted liberally. Section 3(1) makes plain that Parliament seeks to protect the public through a balance of different policy objectives. The youth criminal justice system is intended to hold young persons accountable for their conduct but also to promote rehabilitation and reintegration of young persons (s. 3(1)(a)). Importantly, the Declaration was amended in 2012 to recognize — echoing language, as we shall see, in the judgment of this Court in D.B. — that the youth criminal justice system must be separate from that of adults and based on the “principle of diminished moral blameworthiness” (s. 3(1)(b); s. 168(2) of the Safe Streets and Communities Act). Indeed, Parliament has directed that, in deciding an application by the Crown under ss. 64 and 72, including what sentence is necessary to hold them accountable pursuant to s. 72(1)(b), the youth justice court must take into account, in particular, the “greater dependency of young persons” and their “reduced level of maturity” in s. 3(1)(b)(ii):3 (1) The following principles apply in this Act:
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(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:
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(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, ... [64] Section 3(1)(c) also provides that within the limits of fair accountability, measures taken against young persons who commit offences should “reinforce respect for societal values”, encourage the repair of harm to victims and the community and be meaningful for the young person given their needs and level of development. These measures should “respect gender, ethnic, cultural and linguistic differences” and respond to, in particular, the needs of Aboriginal youth. The YCJA thus provides a distinct sentencing framework for young persons, acknowledging that their cognitive development, decision‑making capacity, and potential for rehabilitation are different from adults. Yet Parliament also recognizes, in ss. 3(1)(a)(i) and 38(1), the importance of imposing meaningful consequences on them for offending behaviour, and fixes its lengthiest custodial and supervisory sentences for what the YCJA defines as “serious violent offence[s]” in s. 2(1), which includes murder.
[65] The preamble to the YCJA further reinforces these considerations. It affirms that Canadian society has a responsibility to address the developmental challenges of young persons and that Canada is a party to the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, which says that the detention of young persons must be a measure of last resort. The preamble also states that the youth justice system must command public respect, foster responsibility, ensure meaningful accountability, and reserve its most serious interventions for the most serious crimes.
[66] This case concerns sentencing, not criminal liability. The statutory framework governing youth sentencing is set out in Part 4 of the YCJA. Section 38(1) provides that the purpose of youth sentencing is to hold a young person accountable through just sanctions that promote rehabilitation and reintegration while contributing to the long‑term protection of the public. This provision reflects Parliament’s view that public safety is best achieved through rehabilitation:38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [67] Section 38(2)(c) further explains that “the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence”. This reinforces the idea that sentencing must be both individualized to the young person and proportionate, recognizing that youths, even when convicted of serious crimes, presumptively do not bear the same level of responsibility as adults. “This does not mean that young people are not accountable”, wrote the majority of this Court in D.B.: “They are decidedly but differently accountable” (para. 1).
[68] These principles frame the assessment that a youth court must make in deciding whether it is satisfied that an adult sentence, rather than a sentence fixed by Parliament in Part 4 of the YCJA, should be imposed pursuant to s. 72(1). Before an adult sentence can be imposed, a court must determine whether the presumption of diminished moral blameworthiness has been rebutted. This presumption exists precisely because young persons, by virtue of age, cannot be presumed to have the same capacity for moral culpability as adults (W. (M.), at para. 97).
[69] The YCJA is animated by the objective of minimizing custodial sentences (see R. v. C.D., 2005 SCC 78, [2005] 3 S.C.R. 668, at paras. 48-50). Yet it does provide for what Parliament calls “meaningful consequences” to ensure that young persons are held accountable for criminal offences (preamble and s. 38(1) YCJA). A conviction for first or second degree murder, for example, attracts a custodial sentence that seeks to hold a young person accountable and to promote their rehabilitation into society, both of which are understood as “contributing to the long‑term protection of the public”, according to the purpose of youth sentencing recorded in s. 38(1). Parliament also directs that a youth sentence, subject to the principle of proportionality as applicable to young persons at s. 38(2)(c), may aim to denounce unlawful conduct and deter the young person from committing offences (s. 38(2)(f)).
[70] The YCJA has a number of special sentencing rules that recognize the character of murder as a serious violent offence. But it bears noting that, unlike an adult sentence for the same offence, a sentence for murder under the YCJA has a maximum but no mandatory minimum custodial sentence (Bala and Anand, at pp. 121 and 554). Section 42(2)(q)(i) provides for a maximum 10-year sentence for first degree murder, consisting of up to 6 years in custody, followed by a period of conditional supervision. To that, the sentencing judge may impose other enumerated sanctions “that the court considers appropriate” (s. 42(2)). This sentence underscores the fact that young persons convicted of the most serious offences remain subject to meaningful accountability, but within a framework that accounts for their presumed diminished culpability and rehabilitative potential. The relevant parts of s. 42(2) provides:(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:
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(q) order the young person to serve a sentence not to exceed
(i) in the case of first degree murder, ten years comprised of
(A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed six years from the date of committal, and
(B) a placement under conditional supervision to be served in the community in accordance with section 105, ... [71] The sentencing regime for first degree murder in s. 42(2)(q)(i) expressly contemplates, in Part 5 of the YCJA, the intervention of a youth justice court judge to oversee how the custodial and supervision portions of the sentence are implemented as part of Parliament’s purpose to “contribute to the protection of society” (s. 83(1)). In the case of youth sentences for certain serious violent crimes, including murder, and before the custodial portion of a sentence expires, s. 104(1) permits the Attorney General to apply for a continuation of custody if there are “reasonable grounds to believe that the young person is likely to commit an offence causing the death of or serious harm to another person”. A decision made on a s. 104 application for continuation of custody is based on the evaluation by a youth court of possible persistent violent behaviour and the risk to reoffend (see s. 104(3); L. Tustin, A Guide to the Youth Criminal Justice Act (2024/2025 ed.), at pp. 226-27). Further, in the case of a youth sentence for first degree murder, s. 105(1) requires that, “at least one month before the expiry of the custodial portion of the youth sentence”, the youth justice court determine the conditions that will apply during the period of community supervision. This allows for a contemporaneous and fact-sensitive measure of the young person’s needs and of the community safety interest in the conditions of supervision. Together, ss. 104 and 105 are part of the youth sentencing regime that help ensure that youth sentences for serious violent offences proceed with timely oversight and evaluation of the young person’s rehabilitation and risk of reoffending, in keeping with the purpose of the YCJA, by a youth court judge apprised of all of the relevant facts at the end of the custodial period of the sentence.
[72] As an alternative to the custodial sanction for first degree murder in s. 42(2)(q)(i), the youth justice court can make an IRCS order for a period not exceeding 10 years (s. 42(2)(r)(ii)). The order is aimed at first degree murder committed by a young person with mental illness, where the offender will be subject to a treatment and supervision plan (see S. Davis‑Barron, Youth and the Criminal Law in Canada (2nd ed. 2015), at pp. 432-33). This ensures that young persons who suffer from a mental illness or disorder receive adapted rehabilitation, consistent with the overarching purpose of the YCJA.
[73] Youth court judges are thus tasked with determining whether the principles and objectives of fair, proportionate and meaningful accountability, as set out in ss. 3(1)(b)(ii) and 38(1), can be fully achieved within the YCJA regime. In this case, this applies in respect of the sentence Parliament has set for first degree murder in s. 42(2)(q)(i). The inquiry under s. 72(1) is not whether the young person should be held accountable — accountability is already a central consideration in Part 4 — but rather which sentencing regime ensures meaningful accountability in the circumstances of a case, considering the young offender’s age.
[74] Even where an adult sentence is imposed, the distinction between youth and adult offenders remains critical. Section 76 YCJA provides that a young person sentenced as an adult may still serve their sentence in a youth facility, reinforcing Parliament’s recognition that even those who receive adult sentences remain developmentally distinct from fully matured offenders.
[75] Finally, the adult sentence for first degree murder is imprisonment for life (s. 235(1) Cr. C.). Section 745.1 Cr. C. establishes reduced parole ineligibility periods for young persons sentenced as adults, recognizing their greater rehabilitative potential. Similarly, s. 743.5 Cr. C. governs the transition between youth and adult correctional facilities, ensuring that the legal system remains responsive to the unique circumstances of young offenders. . R. v. Canadian Broadcasting Corporation
In R. v. Canadian Broadcasting Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an 'open court' order, here involving the Youth Criminal Justice Act (YCJA) "which limits access to records and information with respect to criminal proceedings against young persons".
Here the court considers (largely on the evidence before it, not the law) whether the media parties were required to make formal YCJA s.119(1)(s) application ['Persons having access to records'] to obtain records, or whether such records could be released less formally:(3) The YC judge did not err in finding that the appellants were required to make an application on notice for access under s. 119(1)(s)
[88] The YC judge held that, to obtain access to records under s. 119(1)(s), an applicant must make an application on notice to the Crown and the Young Persons. The appellants say that requiring them to make a formal application is inconsistent with the wording of s. 119(s) and that it renders access unnecessarily complicated and impractical. I do not agree.
[89] In my view, the requirement for an application, whether oral or in writing, is plain on the wording of s. 119(1)(s). Section 119(1) states that “the following persons, on request, shall be given access to a record…” This language must, however, be read harmoniously with the text of subpara. (s), which confers a judicial gate-keeping role for the purpose of determining whether access should be granted and on what terms. This mandates a motion or application as opposed to an administrative process. The language of subpara. (s) stands in contrast to the language of subparas. (a) through (r), which does not refer to any determination by a judge as a precedent for access.
[90] In S.L. v. N.B., at para. 51, Doherty J.A. stated that s. 119(1)(s) “allows any person, including the victim, to bring a motion before a youth justice court judge for an order allowing access to any of the records made and kept under the Act.” He later suggested, however, that a person could first request access to the records in the court and in the possession of the Crown Attorney. The latter comment was obiter. I agree with the YC judge and the SC judge that s. 119(1)(s) is premised on a motion or application on notice.
[91] Courts in Ontario and elsewhere have consistently required that the Crown should be given notice of s. 119(1)(s) applications for access: see R. v. M.M., at para. 29; Toronto Star Newspaper Ltd. 2012, at para. 2; D.C.F., Re, at p. 259. They have also required that notice should be provided to young persons whose privacy rights are at issue in YCJA proceedings: see Toronto Star Newspaper Ltd. 2012, at para. 2; Toronto Community Housing Corporation v. R., 2018 ONCJ 100, at paras. 15-17; and Boyer v. Doe, 2017 ONCJ 272, [2017] O.J. No. 2188, at para. 9. A notice requirement is consistent with the YCJA underlying policy of protecting the privacy of young persons and the recognition that stigmatization of young persons charged with offences may greatly reduce their potential for rehabilitation. As noted by Binnie J. in F.N., the disclosure of information in YCJA records may have a profound and lasting negative impact on a young person. In response to an application, a young person has an opportunity to communicate any circumstances that may make them particularly vulnerable to inadvertent identification, and the Crown has an opportunity to advise the court of any other circumstances that may weigh in favour or against access.
[92] Finally, the appellants complain that requiring them to seek access by way of motion or application is unduly burdensome and may lead to delays in obtaining information in a timely way. This same argument was raised and rejected in S.L. v. N.B., at para. 56:Counsel for the respondents argue that the interpretation of the Act advanced by the Attorney General creates practical problems, adds procedural hurdles for plaintiffs like the respondents, and increases the costs associated with litigation. Even if I agreed with this submission, it could not alter the intention of Parliament as expressed in the clear language used by it. In any event, I do not agree that the interpretation I favour creates significant practical difficulties. [93] The appellants’ concerns about delay are speculative and not borne out on the facts of this case. They served their application on December 30, 2023; it was heard two weeks later. They obtained an order granting them partial access to the Records less than a month after the Young Persons’ first court appearance. Based on the evidence of Ms. Chiasson, the order gave the appellants access to all information and Records that she needed for fact-checking purposes at the time, given that media had attended all hearings except that on December 28, 2022. Immediate access to further information would not have served any purpose, since media representatives were not entitled to disclose the Young Persons’ names or identifying information under the Act, and a s. 517 ban prevented publication of the evidence at the bail hearings and a court’s reasons for granting or denying bail. . R. v. Canadian Broadcasting Corporation
In R. v. Canadian Broadcasting Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of statutory 'open court' orders, here involving the Youth Criminal Justice Act (YCJA) "which limits access to records and information with respect to criminal proceedings against young persons".
The court contrasts statutory aspects of the YCJA regime (which are akin to 'open court' orders), with the actual common law 'open court' orders:(a) The distinction between a limitation to access under common law and a limitation pursuant to valid statutory enactment
[42] The appellants contend that, further to the open court principle affirmed in Dagenais, Mentuck and Sherman Estate, a court has only a limited discretion to make any order to limit the media’s access to court records and ability to report on their contents. The appellants argue that the courts below erred by failing to apply the Dagenais-Mentuck test, rather than the criteria set out at s. 119(1)(s) of the YCJA, to determine whether the appellants should have access to the Records. They contend that the YC judge’s interpretation of the Act “reverse[s] the open court principle”.
[43] The appellants’ argument fails to recognize the distinction between the exercise of a discretionary judicial power in common law and the application of a statutory exception. Rather than reversing the open court principle, the interpretation by the courts below respects an exception to it created through valid legislative enactment.
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[48] The Dagenais-Mentuck test is subject to an important qualification, however. It ensures that the open court principle is respected where a party asks a court to limit access to hearings or court records through the exercise of the court’s inherent discretion to manage its own proceedings. It does not displace or negate the effect of a statutory exception to the open court principle. As held in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22, and reiterated in Sherman Estate at paras. 38 and 40, the test “applies to all discretionary limits on court openness, subject only to valid legislative enactments”. The constitutionality of such an enactment may be challenged. In that case, any limit it imposes on the open court principle must be shown to be a reasonable and justified limitation in a free and democratic society under the Oakes test: Sherman Estate, at para. 40, citing Dagenais, at p. 878, and Vancouver Sun, at para. 30.
[49] In the absence of a successful constitutional challenge, ss. 110, 118 and 119 of the YCJA remain valid legislative amendments.[2] As a result, the courts below were correct in finding that the appellants must meet the criteria set out in s. 119(1)(s) to obtain access to the youth records.
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