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Criminal - Sentencing - YCJA (2). R. v. T.M. [Deferred custody and supervision order]
In R. v. T.M. (Ont CA, 2025) the Ontario Court of Appeal issued supplementary reasons for allowing a Crown appeal, explaining "in greater detail why ss. 42(5)(a) ['Considerations as to youth sentence - Deferred custody and supervision order'] and 42(2)(p) ['Considerations as to youth sentence - Youth sentence'] of the YCJA do not violate ss. 7 or 15(1) of the Charter".
Here the court summarizes the case:[1] These supplementary reasons follow this court’s earlier decision of June 16, 2025, in R. v. T.M., 2025 ONCA 436. In that decision, we resolved the appeal from the sentencing order made by the sentencing judge of the Ontario Court of Justice. We concluded that ss. 42(5)(a) and 42(2)(p) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”) – which prohibit deferred custody for offences involving serious bodily harm and limit such custody to six months – do not infringe ss. 7 or 15 of the Canadian Charter of Rights and Freedoms. We also varied the sentence by imposing a fit disposition of 18 months’ probation with conditions and a community service order of 100 hours.
[2] These reasons expand on the constitutional analysis underlying that conclusion. They explain in greater detail why ss. 42(5)(a) and 42(2)(p) of the YCJA do not violate ss. 7 or 15(1) of the Charter. In doing so, the judgment addresses both the equality rights concerns raised and the broader youth sentencing framework established under the Act.
[3] The impugned provisions are constitutional. They do not compel a custodial sentence for a young person who is otherwise appropriate for a community-based disposition. The YCJA provides youth justice courts with a broad range of non-custodial sentencing options designed to promote rehabilitation and to respond to the developmental needs of young people. These options include youth probation – a dynamic sanction which is far more robust than adult probation and has long been used to hold young people accountable for serious bodily harm offences in appropriate cases – along with many other flexible dispositions, some of which are only available to young people. This framework reinforces individualized and proportionate sentencing and upholds the principle that custody must remain a last resort, especially for young people being sentenced for a first offence.
[4] The provisions also do not detract from the YCJA’s rehabilitative objectives or weaken the presumption in favour of non-custodial measures which underlies its careful scheme. Rather, they must be interpreted harmoniously with those very objectives and scheme. This contextual interpretation shows that Parliament added deferred custody to give youth justice courts more flexibility in cases not involving serious bodily harm – not to tie their hands in other cases by restricting additional options and reversing the settled jurisprudence authorizing the use of robust probation orders where appropriate.
[5] Instead, the provisions place reasonable limits on the use of deferred custody. They prevent its overextension and avoid exposing young persons to an unwarranted risk of incarceration, while also signalling offence gravity and supplying an immediate consequence for causing or attempting to cause serious bodily harm – the unavailability of one sentencing option. In this case, the sentencing judge’s failure to apply those statutory limits would have subjected the respondent to an unnecessarily prolonged custodial risk, contrary to Parliament’s intent.
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G. Conclusion
[114] Read in their full statutory and contextual setting, ss. 42(5)(a) and 42(2)(p) of the YCJA do not infringe ss. 7 or 15(1) of the Charter. Neither provision mandates incarceration, nor do they result in harsher treatment of young persons relative to adults. Rather, they operate within a nuanced youth-specific accountability framework that harmonizes proportionality with meaningful consequences and rehabilitation. The YCJA equips judges with a wide array of non-custodial sentencing tools, enabling them to advance both objectives while fulfilling Parliament’s central aim of reducing youth incarceration.
[115] The sentencing judge erred by examining ss. 42(5)(a) and 42(2)(p) in isolation, without properly situating them within the YCJA’s broader remedial and protective architecture. Because these provisions are constitutional, the judge was required to apply them as written and to rely on the extensive suite of non-custodial options available under the YCJA to craft a fit sentence for the respondent, who displayed significant rehabilitative potential and accepted responsibility for his conduct.
[116] The Crown appeal is, therefore, allowed. The sentence is varied to 18 months’ probation, including 100 hours of community service, on the terms jointly proposed by counsel and set out in the initial judgment. . R. v. T.M.
In R. v. T.M. (Ont CA, 2025) the Ontario Court of Appeal issued supplementary reasons for allowing a Crown appeal, explaining "in greater detail why ss. 42(5)(a) ['Considerations as to youth sentence - Deferred custody and supervision order'] and 42(2)(p) ['Considerations as to youth sentence - Youth sentence'] of the YCJA do not violate ss. 7 or 15(1) of the Charter".
Here the court outlines the YCJA’s sentencing principles:(3) The YCJA’s Foundational Sentencing Principles
[32] In seeking to promote the long-term protection of society while advancing the interests of young people, Parliament enacted the YCJA to “send a clearer message to … restrict[] the use of custody … [and] reduce the unacceptably high level of youth incarceration”: R. v. C.D., 2005 SCC 78, [2005] 3 S.C.R. 668, at para. 48 (quotation omitted); see also I.M., at para. 69. Parliament delivered that message through several interrelated measures:. Adopting a more nuanced and youth-specific understanding of accountability, one that requires proportionate and constructive consequences that foster rehabilitation and reintegration and that take full account of young people’s circumstances and social context;
. Closely linking proportionality with rehabilitation;
. Expanding the range of non-custodial alternatives;
. Establishing strong safeguards against the imposition of custody; and
. Ensuring that young people are not punished more harshly than similarly situated adults. [33] These remedial sentencing principles must be interpreted and applied generously and purposively: I.M., at para. 63, citing YCJA, s. 3(2).
a. Parliament’s Remedial Objectives
[34] Parliament enacted the YCJA to advance the best interests and unique circumstances of young people, to reduce and restrict youth incarceration, and to protect the public. These objectives must be understood together and applied in harmony: I.M., at paras. 63-65.
[35] First, “the YCJA is generally focused on the best interests of the young person”: R. v. R.E.W. (2006), 2006 CanLII 1761 (ON CA), 79 O.R. (3d) 1 (C.A.), at para. 40; see also I.M., at paras. 64-65. As I will explain, the Act’s careful and context-sensitive approach to youth accountability reflects this foundational commitment.
[36] Second, Parliament sought to reduce and strictly limit the use of incarceration for young people. It aimed to correct what had been described as a “national disgrace” – a prior legislative regime that resulted in Canada imprisoning a greater proportion of its youth than any comparable country: R. v. J.K.E., 1999 YTYC 501, at paras. 60-61. That former scheme exposed first-time offenders to harsh conditions and, in some cases, punished young people more severely than adults: C.D., at paras. 34-40, 48-49.
[37] Parliament’s emphasis on the best interests of youth and on restricting youth custody is consistent with Canada’s obligations under the United Nations Convention on the Rights of the Child, Can. T.S. 1992, No. 3. Articles 3(1) and 37(b) require that a young person’s best interests be a primary consideration in any judicial decision concerning them and that detention be used only as a measure of last resort. Parliament intended the YCJA to “fully compl[y]” with these obligations, as the Minister of Justice stated during committee proceedings and as the statute’s preamble reflects.[3] The Act should therefore be interpreted, as far as its text permits, in a manner that fulfills these commitments: I.M., at para. 65; C.D., at para. 35; R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at para. 41; Quebec (Minister of Justice) v. Canada (Minister of Justice) (2003), 2003 CanLII 52182 (QC CA), 175 C.C.C. (3d) 321 (Que. C.A.), at paras. 132-151 (“Quebec Reference”); Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Assn., 2022 SCC 30, [2022] 2 S.C.R. 303, at paras. 44-49.
[38] Third, Parliament sought to protect society in the long term. The YCJA’s sentencing principles are the means by which this objective is achieved: I.M., at para. 63; R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 31, citing YCJA, s. 38(1).
[39] Public protection is inseparable from promoting young people’s interests and limiting the use of custody, because “public safety is best achieved through rehabilitation”: I.M., at para. 66. Non-custodial sentences harness young people’s strong rehabilitative potential, which incarceration often undermines. Effective rehabilitation benefits society by enabling young people to reach their full potential, reducing youth crime, and preventing the young person who appears before the court today from becoming the repeat adult offender of tomorrow: I.M., at paras. 179-80; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 55; D.B., at para. 62; C.D., at para. 48; R. v. M. (J.J.), 1993 CanLII 91 (SCC), [1993] 2 S.C.R. 421, at p. 429; Quebec Reference, at paras. 135-137.
b. The Three Pillars of Youth Accountability
[40] To achieve its objectives, Parliament placed a multifaceted, nuanced, and context-sensitive conception of accountability at the centre of youth sentencing. Section 38(1) identifies three essential components of accountability: (1) the imposition of “just sanctions,” (2) that have “meaningful consequences for the young person,” and (3) that “promote … rehabilitation and reintegration into society.” I explain each principle, how they relate to one another, and how social context evidence assists courts in applying them.
[41] It is important to acknowledge that this approach has not always been fully appreciated. In R. v. A.O., 2007 ONCA 144, 84 O.R. (3d) 561, this court interpreted “accountability” and “meaningful consequences” primarily through the lens of retribution, a principle which is a component of proportionality: paras. 46-50.[4] However, I.M. expressly rejected A.O.’s narrower view. The Supreme Court made clear that meaningful consequences are distinct from proportionality,[5] and that “[a]ccountability … cannot be equated solely with retribution”: I.M., at para. 170. As binding authority, I.M. now governs the interpretation of these concepts in this province.
[42] The first pillar – just sanctions – corresponds to proportionality. Sentences must be proportionate to the seriousness of the offending behaviour and the young person’s degree of responsibility: Ipeelee, at para. 37. This requires courts to consider the factors set out in A.O. – the youth’s culpability, the harm caused, and the normative character of the conduct. These considerations ensure that the youth justice system maintains public confidence and responds appropriately to more serious, harmful, or blameworthy behaviour: I.M., at para. 173; see also A.O., at paras. 46-47; S.B., at para. 63; YCJA, preamble & ss. 3(1)(a), 38(1), 38(2)(c).
[43] Parliament modified the proportionality principle to reflect the realities of young people’s lives, which require sensitivity, restraint, and age-appropriate responses. Youth proportionality sets an upper limit and prohibits imposing disproportionately harsh sentences, whether to punish or to rehabilitate: A.O., at paras. 47, 50. At the same time, it departs from the more punitive orientation of adult proportionality by emphasizing that accountability must “be consistent with the greater dependence of young persons and their reduced level of maturity”: YCJA, s. 3(1)(b)(ii). This approach is grounded in young people’s developmental needs, diminished blameworthiness, and heightened vulnerability to the effects of custody: I.M., at paras. 110, 129, 171, 175; R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 75.
[44] The second pillar – meaningful consequences – requires consequences that have a constructive, forward-looking impact on the young person. This meaning governs because the English and French versions of s. 38(1) share it: R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856, at paras. 5-6. The French text refers to “perspectives positives,” comprising the sense of “meaningful” or “constructive prospects.” Thus, meaningful consequences should positively shape the young person’s future trajectory, including by promoting a sense of responsibility: LSJPA - 0713, 2007 QCCA 114, at para. 52; LSJPA - 0715, 2007 QCCA 116, at paras. 47-48; R. c. D.N., 2010 ONCA 168, 253 C.C.C. (3d) 455, at para. 36; Le Robert & Collins, 11th ed. (New York: HarperCollins Publishers, 2020), at pp. 721, 758 (definitions of “positif, -ive” and “perspective”).
[45] Judges must therefore impose consequences that are meaningful for the individual young person and tailored to their needs and stage of development. Such consequences must address the underlying circumstances of the offending behaviour and foster the young person’s respect for societal values, sense of responsibility, willingness to acknowledge and repair harm, and connection to family and community. These are person-centred, individualized measures tailored to the young person’s unique circumstances: I.M., at paras. 170-171; B.W.P., at paras. 25, 31, 33; D.B., at paras. 61-65; R. v. A.A.Z., 2013 MBCA 33, 298 C.C.C. (3d) 59, at paras. 30-32; YCJA, ss. 3(1)(a)(iii), 3(1)(c)(i)-(iii), 38(2)(e)(iii).
[46] The third pillar – rehabilitation and reintegration – is a central focus of the YCJA. Whereas the Criminal Code identifies rehabilitation as only one of several discretionary objectives, the YCJA situates rehabilitation and reintegration at the heart of accountability. This represents a fundamentally different approach to youth sentencing: see D.B., at paras. 1, 93. Section 38(1) explicitly requires both meaningful consequences and the promotion of rehabilitation and reintegration. These objectives take priority over denunciation and specific deterrence: I.M., at paras. 129, 170, 175; R. v. Okemow, 2017 MBCA 59, 353 C.C.C. (3d) 141, at paras. 45-46, 70. Judges must, therefore, “emphasize … rehabilitation and reintegration” and select the sentence “most likely to” achieve these goals, subject to proportionality: YCJA, ss. 3(1)(b)(i), 38(2)(e)(ii).
[47] The second and third pillars reflect Parliament’s commitment to advancing the best interests of young people: R.E.W., at para. 40. Interpreted purposively and in light of Canada’s obligations under the Convention on the Rights of the Child, they reflect a legislative judgment that treating constructive consequences, rehabilitation, and reintegration as primary considerations will promote young people’s best interests in the sentencing context. They must be applied with this purpose front of mind. This does not mean that custody is never appropriate, nor that best interests override proportionality. Rather, courts must give effect to those interests as fully as possible within the constraints of proportionality: Quebec Reference, at paras. 132-151.
[48] Parliament expected youth court judges to harmonize these three pillars and to apply each of them as fully as possible. As I.M. emphasized, accountability “encompasses sanctions that are not only proportionate but also promote meaningful consequences and societal reintegration,” requiring “sentences that reflect young offenders’ circumstances while addressing the gravity of their actions”: para. 170; see also S.B., at para. 62. An integrated approach is essential to “guide [young people] into adulthood” through individualized measures which match their developmental needs and rehabilitative potential: I.M., at paras. 104, 171.
[49] It is, therefore, an error in principle to treat proportionality – or retribution – as the dominant or isolated focus of youth sentencing: Sirois c. R., 2017 QCCA 558, at paras. 40, 50. While some earlier decisions such as R. v. S.J.N.S., 2013 BCCA 379, 305 C.C.C. (3d) 160, at para. 27, suggested a more hierarchical model, I.M. clarified that youth accountability requires a holistic approach. Accountability is not measured solely by the severity or length of a sentence, but also by whether the sentence fosters constructive outcomes that support rehabilitation and reintegration. These three pillars cannot be cleanly separated. A sentence that undermines rehabilitation, exacerbates a young person’s vulnerabilities, or fails to produce constructive consequences will often be disproportionately harsh: I.M., at para. 179; M. (C.A.), at para. 82; R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at paras. 34, 36; R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at paras. 135, 165.
[50] As Professor Malcolm Thorburn notes, the YCJA’s approach calls on courts “to embrace more creativity in the crafting of sentences and not be restricted by an undue emphasis on retribution.” Judges should therefore seek “the type of sentence … most conducive to the rehabilitation and reintegration of the young person,” while still respecting proportionality: “Accountability and Proportionality in Youth Criminal Justice” (2009) 55 Crim. L.Q. 304, at pp. 308, 321-322. In practice, this often favours non-custodial sanctions, which can promote responsibility and strengthen the social bonds that incarceration risks severing.
[51] I.M. also emphasized that social context evidence is “often indispensable” in assessing accountability: at para. 179. Such evidence provides a fuller understanding of a young person’s background, vulnerabilities, judgment, needs, and the inequities they may have experienced: I.M., at para. 166; S.B., at para. 50. It informs proportionality by clarifying the youth’s degree of responsibility and shapes all three pillars by illuminating how a particular sanction will affect the young person. Social context evidence may reveal, for example, that a custodial sentence would be disproportionate, not constructive, and harmful to rehabilitation because it “could exacerbate the young person’s vulnerabilities”: I.M., at para. 179.
[52] Social context considerations are especially important for racialized young people who face discrimination: I.M., at paras. 164-65, citing R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641. This aligns with Parliament’s direction that sanctions must “respect … ethnic, cultural, and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements”: YCJA, s. 3(1)(c)(iv). As a result, the principles developed in Gladue, Ipeelee, and Morris apply with full force – and often greater weight – in youth sentencing because the YCJA places stronger emphasis on rehabilitation, reintegration, and meaningful consequences, along with reduced reliance on custody, and correspondingly less emphasis on punishment: I.M., at paras. 162-67, 179; R. v. C.P. & J.A., 2009 NBCA 65, 349 N.B.R. (2d) 214, at para. 25; R. v. T.J.D., 2016 MBCA 67, 330 Man. R. (2d) 146, at para. 4.
c. Expanding Non-Custodial Options & Restricting Custody
[53] To equip judges to achieve accountability in a manner that is sensitive to young people’s social context, Parliament aimed to give judges more options – not fewer. Thus, the YCJA expanded the range of non-custodial sentencing options. The Act introduced two new youth-specific dispositions – intensive support and supervision orders and non-residential programs. Together with existing dispositions such as probation, community service, and prohibition orders, these measures give judges greater capacity to reduce the use of custody for young persons: R. v. J.S.M., 2005 BCCA 417, 200 C.C.C. (3d) 400, at para. 33; Justice Andrea E.E. Tuck-Jackson, “Evaluating the Youth Sentencing Regime in Comparison with Adult Court,” in David Cole & Julian Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice (Toronto: Irwin Law, 2020) 315, at pp. 327-328.
[54] These non-custodial options can often best achieve accountability, advance young people’s best interests, and protect the public. As the Supreme Court has noted, they may “provide more meaningful consequences and be more effective in rehabilitating young persons” than incarceration: C.D., at para. 48 (quotation omitted); see also R. v. K.O., 2012 NLCA 55, 326 Nfld. & P.E.I.R. 55, at para. 31. They promote rehabilitation by allowing young people to address their difficulties in their own social environments, supported by family and community. They also enable the imposition of consequences such as reparations and participation in programming, which can be more constructive, developmentally appropriate, and responsive to young people’s needs than custody: I.M., at paras. 129, 171; R. v. P.R., 2018 SKCA 27, 365 C.C.C. (3d) 120, at paras. 98-99; Nicholas Bala & Sanjeev Anand, Youth Criminal Justice Law, 3rd ed. (Toronto: Irwin Law, 2012), at p. 500.
[55] Incarceration, by contrast, risks deepening young people’s existing challenges and vulnerabilities. As the late Chief Justice McMurtry recognized, it may have little or no constructive effect on those who, because of developmental difficulties, peer pressure, or limited life options, are indifferent to custody or perceive it as a “rite of passage” that will enhance their social standing: I.M., at paras. 179-80; P.R., at paras. 98-99; R. v. Morrisseau, 2017 ONCJ 307, 38 C.R. (7th) 190, at para. 94; The Hon. Roy McMurtry & Dr. Alvin Curling, The Review of the Roots of Youth Violence Report, Vol. 1: Findings, Analysis and Conclusions (Toronto: Queen’s Printer for Ontario, 2008), at p. 277.
[56] For these reasons, Parliament prioritized restraint and imposed strict limits on the use of incarceration. Section 39(1) of the YCJA makes custody a measure of last resort by prohibiting custodial sentences unless one of four statutory “gateways” is met. Even where custody is available, Parliament enacted strong, interlocking safeguards. Judges must select the least restrictive proportionate sentence capable of achieving accountability and must first consider non-custodial alternatives, taking into account the likelihood of the young person’s compliance, the pre-sentence report, and the youth’s own sentencing proposal. Judges are prohibited from imposing custody if any of these alternatives is reasonable and must explain why less restrictive options are inadequate if a custodial sentence is ordered: YCJA, ss. 38(2)(d)-(e), 39(2)-(3), (6), and (9); see also I.M., at paras. 129, 176; C.D., at paras. 39, 48; D.B., at para. 43.
[57] Taken together, these provisions establish a general rule against incarceration and in favour of non-custodial sanctions. While custody may be necessary in some cases involving violent, serious, or repeat offending, it remains an exceptional last resort, and community-based dispositions are the norm: I.M., at paras. 129, 176; R.E.W., at para. 44; R. v. J.S. (2006), 2006 CanLII 22101 (ON CA), 81 O.R. (3d) 511 (C.A.), at para. 45; Okemow, at para. 42.
[58] This general rule carries special force for young people being sentenced for their first offence. Non-custodial dispositions are strongly preferred for those young people, while custody is reserved for the most serious cases and avoided whenever possible. This enduring principle, which emerged in earlier caselaw and is now reflected in ss. 38-39 of the YCJA, advances a compelling policy – to protect society and advance young people’s best interests, every effort should be made to ensure that a young person’s first offence is also their last. Practising restraint achieves this crucial goal by promoting rehabilitation, preserving family and community ties, and keeping impressionable young people away from the negative peers and influences to which custody risks exposing them: R. v. M.F., 2025 ONCA 596, at paras. 25-26; see also, e.g., R. v. P.L.M. (1985), 1985 CanLII 5807 (NS CA), 69 N.S.R. (2d) 99 (C.A.), at para. 5; R. v. W.S.G. (1991), 90 Nfld. & P.E.I.R. (N.L.C.A.), at para. 17; R. v. S.B. (1994), 1994 CanLII 3881 (SK CA), 125 Sask. R. 303 (C.A.), at paras. 39-41; R. v. K.(E.P.) (1997), 1997 CanLII 4583 (PE SCAD), 154 Nfld. & P.E.I.R. 359 (P.E.I.C.A.), at paras. 3-4.
[59] In addition, through s. 38(2)(a), Parliament prohibited judges from punishing young people more harshly than adults who commit the same offence in similar circumstances. This requirement is mandatory, not discretionary: D.B., at para. 43. It reflects Parliament’s view that young persons “presumptively do not bear the same level of responsibility as adults” and that youth accountability must reflect their developmental realities rather than the Criminal Code’s more punitive approach to adult sentencing: I.M., at paras. 67, 110, 171.
d. Summary of the YCJA’s Governing Sentencing Principles
[60] For ease of reference, I summarize the YCJA’s relevant foundational sentencing principles below:1. The YCJA must be applied generously to achieve its aims of advancing young people’s best interests, reducing and restricting youth incarceration, and protecting the public.
2. Accountability is achieved by (a) proportionality, (b) meaningful consequences, and (c) rehabilitation and reintegration. Judges must harmonize these three pillars instead of treating proportionality as predominant and should advance young people’s best interests as much as possible when applying them.
a. Proportionate sentences must account for young people’s diminished blameworthiness and developmental challenges in addition to the seriousness of the offending behaviour.
b. Meaningful consequences are person-centred sanctions that respond constructively to young people’s needs and circumstances.
c. Rehabilitation and reintegration must be prioritized and the proportionate sentence most likely to achieve these objectives must be selected.
3. Social context evidence is vital to accountability because it can reduce moral blameworthiness and shed light on which consequences will be meaningful and promote rehabilitation and reintegration – especially for young people who belong to racialized groups and face discrimination.
4. Non-custodial sanctions are normally the best way to achieve accountability – they should be considered first and must be selected if they are a reasonable alternative to custody.
5. Custody is a last resort.
6. Young people cannot be punished more harshly than adults who committed the same offence in similar circumstances. At paras 61-94 considers non-custodial YCJA sentencing alternatives.
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