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Criminal - Sentencing - Youths (YCFA). R. v. S.B.
In R. v. S.B. (SCC, 2025) the Supreme Court of Canada dismissed a criminal appeal, here addressing when a youth defendant is liable to be sentenced as an adult [YCJA s.72(1)]:[61] As I sought to emphasize in I.M. [SS: which was released simultaneously], the second part of the youth justice court’s inquiry into whether an adult sentence should be imposed is a crucial step in the analysis. The failure by the Crown to meet its onus on s. 72(1)(b) can, on its own, frustrate an application for an adult sentence, even for a young person for whom the presumption of diminished moral blameworthiness has been rebutted.
[62] As a general rule, the sentencing regime in Part 4 of the YCJA proceeds on the basis that a youth sentence is of sufficient length to hold a young person accountable for offending behaviour. Section 72(1) requires the court to consider whether the case before them is an exception (see N. Bala, “R. v. B. (D.): The Constitutionalization of Adolescence” (2009), 47 S.C.L.R. (2d) 211, at pp. 230-31). Where the Crown has successfully rebutted the presumption of diminished moral blameworthiness, the youth court judge must then engage in a weighing and balancing of the relevant factors and principles set out in ss. 3(1)(b) and 38 YCJA. Section 72(1) also requires courts to consider the purpose of sentencing under the YCJA, which 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” (s. 38(1)).
[63] This task is evaluative in nature. As I explained in I.M., the exercise is akin to the exercise of discretion by a sentencing judge in the determination of a fit sentence (para. 169; see also Okemow, at para. 65; B.J.M. (C.A.), at para. 82). Youth court judges are entitled to deference in their assessment of whether a youth sentence will hold the young person accountable pursuant to s. 72(1)(b). It may include consideration of proportionality to the gravity of the offence and the moral culpability of the offender, including their participation in the offence, the young person’s needs for rehabilitation and reintegration, any previous record, the normative character of the conduct and societal values, especially when sentencing for a violent crime, and the harm caused by the young person (s. 38 YCJA; I.M., at paras. 180-81; see generally O. (A.), at paras. 42‑48; W. (M.), at para. 101; R. v. McClements, 2017 MBCA 104, 356 C.C.C. (3d) 79, at para. 47; B. Kobayashi and J. H. Michalski, “The Meaning of Accountability under Section 72(1)(b) of the Youth Criminal Justice Act” (2024), 72 Crim. L.Q. 373, at pp. 373-74). . R. v. I.M. [sentencing credits]
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 considered the issue of pre-trial incarceration sentencing credits for youth:(b) Pre-Sentence Custody Credit
[217] A question arises at this stage as to how this Court should account for the period that I.M. spent in pre-sentence custody between November 23, 2013, and July 31, 2020. Section 38(3)(d) YCJA requires that courts “take into account . . . the time spent in detention by the young person as a result of the offence”.
[218] The jurisprudence in respect of s. 38(3) has emphasized the importance of the discretion of the judge to grant or deny credit in order to fashion an appropriate youth sentence that is responsive to the needs of the young person. Some courts have applied credit for pre-sentence custody on a one-to-one or partial basis, depending on the specific context faced by the young offender and the rehabilitative goals of the sentence (R. v. B.L.P., 2011 ABCA 384, 519 A.R. 200, at para. 35). Other courts have declined to recognize any credits for pre-sentence custody (LSJPA — 1915, at paras. 45-51; T. (D.D.), at paras. 56-57; W. (M.), at para. 78; R. v. C.H.C., 2009 ABQB 125, 465 A.R. 240, at paras. 91-92). . 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 summarizes the ruling, emphasizing a re-interpretation of the YCJA s.72(1) test for how "the presumption of diminished moral blameworthiness or culpability of the young person is rebutted":[2] To resolve I.M.’s sentence appeal, the Court must interpret s. 72(1) to decide when a young person may be sentenced as an adult rather than under the sentencing regime set forth in the YCJA. The companion case of R. v. S.B., 2025 SCC 24, heard together with this appeal, raises the same issue.
[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. In these companion appeals, the Court must interpret s. 72(1) to determine what these requirements mean and whether, in the result, the Crown has met its burden in the different circumstances of I.M. and S.B., both of whom were young persons when they committed their offences.
[5] Courts across Canada have divided on whether or not the Crown must satisfy a sentencing judge that the presumption of diminished moral blameworthiness in s. 72(1)(a) has been rebutted beyond a reasonable doubt. In this case, the courts below found, instead, that rebutting the presumption calls for a weighing of considerations by a sentencing judge that does not lend itself to the imposition of the standard of proof of beyond a reasonable doubt on the Crown. On this view, a youth justice court must make an evaluative decision, or an informed judgment, to determine whether the young person has the maturity, moral sophistication and capacity for independent judgment of an adult. If the judge is satisfied of this after weighing the relevant considerations, the Crown has met its burden.
[6] I respectfully disagree with this reading of s. 72(1)(a). The statutory rule rests on a fact — the young person’s age — that justifies the presumption of their diminished moral blameworthiness unless the presumption is rebutted. 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 their chronological 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). Moreover, the rebuttal of the presumption in s. 72(1)(a) engages a young person’s constitutionally protected liberty interest in that it risks raising the severity of their sentence to that of an adult, in this case to life imprisonment. 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 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at p. 686, and R. v. Gardiner, 1982 CanLII 30 (SCC), [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.
[9] On a proper interpretation of s. 72(1)(a) YCJA, the Crown thus bears this persuasive burden if the youth justice court is to be “satisfied” that the presumption is rebutted. The constitutional principles recognized in D.B., Pearson and Gardiner, considered together, require this interpretation of s. 72(1)(a). The Crown must rebut the statutory presumption of diminished moral blameworthiness beyond a reasonable doubt so that the statute conforms to the imperatives of the Charter (R. v. B.J.M., 2024 SKCA 79, 441 C.C.C. (3d) 316, at paras. 63-70 and 117, and R. v. Henderson, 2018 SKPC 27, at para. 34; see also D. Parkes, “‘17 Going on 23’: Sentencing Young People to Life in Canada” (2025), 48:1 Dal. L.J. 1, fn. 50, at pp. 11-13).
[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.
[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).
[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). The court walks through this reasoning at paras 81-181, which should be reviewed in full by anyone facing such an issue.
. R. v. E.N.
In R. v. E.N. (Ont CA, 2024) the Ontario Court of Appeal considered sentencing in a young offender context:[18] We similarly see no error in the trial judge’s assessment of the mitigating factors and his application of the principles of restraint and rehabilitation for a youthful first offender with family support. It was open to the trial judge in the circumstances of this case to find that the respondent had rehabilitative potential. As this court said in McKnight, at para. 35: “The weighing of relevant factors, the balancing process is what the exercise of discretion is all about.” See also: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 49. . R. v. I.M.
In R. v. I.M. (Ont CA, 2023) the Court of Appeal considered the two-pronged test under YCJA s.64(1) to sentence a youth as an adult:[40] After the jury convicted the appellant of first degree murder, the Crown brought an application under s. 64(1) of the YCJA to sentence the appellant as an adult. The trial judge allowed the Crown’s application. The appellant was sentenced to life imprisonment with a ten-year period of parole ineligibility pursuant to s. 745.1(b) of the Criminal Code.
[41] The trial judge set out the basic purpose and sentencing principles under the YCJA, namely, “to hold a young person accountable 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”: YCJA, s. 38.
[42] The trial judge then turned to the two-pronged test for an adult sentence under s. 72(1) of the YCJA. Section 72(1) provides that an adult sentence shall be imposed where the youth justice court is satisfied that: (a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and (b) a youth sentence would not be of sufficient length to hold the young person accountable for his or her actions.[3]
[43] The trial judge noted that the onus under s. 72(1) is on the Crown. He went on to state that the standard “is neither proof beyond a reasonable doubt nor proof on a balance of probabilities” but rather “one of satisfaction after careful consideration by the court of all the relevant factors”, citing R. v. B.L., 2013 MBQB 89, 292 Man. R. (2d) 51, at para. 36 and R. v. O.(A.), 2007 ONCA 144, 84 O.R. (3d) 561, at para. 34.
[44] Under the first prong of the test under s. 72(1), the trial judge concluded that the Crown had rebutted the presumption of diminished moral blameworthiness. The trial judge considered the seriousness of the offence, the appellant’s principal role in the murder, the circumstances of the offence, the appellant’s close age to adulthood, his youth record, post-offence conduct and criminal antecedents. Based on this evidence, he determined that, at the time of the offence, the appellant “demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult”: R. v. W.(M.), 2017 ONCA 22, 134 O.R. (3d) 1, at para. 98, leave to appeal refused, [2017] S.C.C.A. No. 109.
[45] With respect to the second prong of the test, the trial judge reluctantly concluded that a youth sentence would be insufficient to hold the appellant accountable for his actions or to ensure public safety. ... . R. v. S.B.
In R. v. S.B. (Ont CA, 2023) the Court of Appeal considered sentencing as an adult under the Youth Criminal Justice Act (YCJA), and allowed an appeal (but does not vary the sentence) on grounds that the trial judge did not properly apply the "presumption of diminished moral culpability that applies to young offenders":[4] At the sentencing hearing for all three youths, the Crown applied under s. 64(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”) for the young offenders to be sentenced as adults. The youth court judge allowed this application. SB, MW, and TF were given life sentences with ten years’ parole ineligibility, pursuant to s. 745.1(b) of the Criminal Code, R.S.C., 1985, c. C-46.
[5] SB now appeals his sentence on the basis that the youth court judge: .... (3) failed to consider the presumption of diminished moral culpability that applies to young offenders (“the Presumption”) before imposing an adult sentence on SB.
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[15] In deciding to impose an adult sentence, the youth court judge looked to the three factors listed under s. 72(1) of the YCJA, as it existed at the time of the offences[1]: (1) the seriousness and circumstances of the offence; (2) the age, maturity, character, background, and previous record of the young person; and (3) any other factors that the court considers relevant. The youth court judge explained that a youth sentence would be imposed if it “would have sufficient length to hold the young person accountable for his or her offending behavior”. The youth court judge went on to note that the burden on the Crown “is not a heavy one”, as it simply “imposes an onus of satisfying the court, nothing more”, relying on R. v. O.(A.), 2007 ONCA 144, 218 C.C.C. (3d) 409, at para. 38.
....
[38] Having reviewed the reasons of the youth court judge, I find that he failed to consider and apply the Presumption to SB. I am aware that trial counsel agreed that the 2012 amendments to s. 72(1) of the YCJA, which expressly codified the Presumption should not apply in this case as the offence pre-dated the amendments. However, the Supreme Court of Canada in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3 established that the presumption of diminished moral culpability is a principle of fundamental justice: at para. 95. As such, there should be no offence for which a youth should be presumptively sentenced as an adult: R. v. D.B., at para. 70. Rather, in all circumstances, the Crown bears the onus of showing that the Presumption has been rebutted, and that a youth sentence under the YCJA would not be sufficient to hold the offender accountable for their criminal conduct: R. v. D.B., at para. 93. As the wording of the test for an adult sentence under s. 72(1) was amended to reflect the holding in R. v. D.B., the youth court judge ought to have turned his mind to this critical youth sentencing principle.
[39] The youth court judge’s reasoning for sentencing SB to an adult sentence does not mention the Presumption. As this court noted in R. v. W.(M.), at para. 83, the silence on this issue is concerning. The Crown submits that the youth court judge must be presumed to know the law. More specifically, the Crown argues that embedded in the youth court judge’s assessment of SB’s maturity is the finding that the Presumption was rebutted. I do not agree. The Presumption is not merely a common law requirement for youth sentencing; it is a principle of fundamental justice. The constitutionality of the adult sentencing regime under the YCJA relies on the proper consideration and application of the Presumption to cases such as SB’s. Given the importance of this principle, it was incumbent on the youth court judge to identify and discuss the Presumption in his reasons. I cannot take his silence to mean that he did. This is an error in principle which justifies intervention by this court.
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[58] Youth court judges must presumptively sentence persons under the age of eighteen at the time of the offence to a youth sentence. An adult sentence may only be imposed if the test under s. 72(1) of the YCJA has been met. As can be seen in the most current iteration of the test, there are two steps: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. [59] In R. v. W.(M.), at para. 95, this court cautioned that each step of the s. 72(1) test must be kept separate: “The two prongs address related but distinct questions and, although similar factors are applicable to both, there is not a complete overlap.” Consequently, in determining a fit sentence for SB, I shall address each step in turn. Ultimately, I will conclude that SB should be sentenced to an adult sentence for first degree murder. At paras 60-68 and 69 the court finds that the presumption "of diminished moral blameworthiness" was nonetheless met.
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