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Criminal - Sentencing - YCJA (3). 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".
The court considers whether the YCJA s.42(5)(a) and 42(2)(p) violate Charter s.15 ['discrimination'], here on 'age' grounds:D. Section 42(5)(a) Respects Equality Rights
[19] The Crown submits that the sentencing judge erred in finding that s. 42(5)(a) of the YCJA violates the equality rights of young persons under s. 15(1) of the Charter. According to the Crown, the ruling failed to account for the Act’s comprehensive sentencing framework, which is designed to serve the unique needs and interests of young people. I agree. When properly understood in its full statutory context, s. 42(5)(a) does not undermine the YCJA’s remedial sentencing principles, nor does it prevent judges from avoiding the inappropriate incarceration of young persons. Rather, although the provision removes one sentencing option from consideration, it still leaves youth justice judges with a broad array of tools to impose proportionate, community-based sentences that keep young people out of custody.
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[23] Turning to the provision at issue, there is no dispute that the first step of the test is satisfied. Section 42(5)(a) draws a distinction based on age: it removes the option of deferred custody from young persons who cause or attempt to cause serious bodily harm, even though adults who commit the same conduct may still qualify for a conditional sentence under the Criminal Code.
[24] The central question, therefore, is whether this age-based distinction is discriminatory. A distinction is discriminatory when it imposes a burden or withholds a benefit in a manner that reinforces, perpetuates, or exacerbates disadvantage. In short, it must worsen the claimant group’s situation or negatively affect it. For example, a law that places individuals found not criminally responsible in a worse position than those found guilty discriminates on the basis of mental disability. By contrast, distinctions that have a neutral effect, or that leave the claimant group’s circumstances unchanged, do not meet this threshold: Sharma, at paras. 28, 52; C.P., at para. 153, per Wagner C.J.; Ontario (Attorney General) v. G., 2020 SCC 38, [2020] 3 S.C.R. 629, at para. 67.
[25] Assessing this second step requires an examination of the broader legislative context, which is an especially important consideration in sentencing. Sentencing provisions do not operate in isolation, and there is no constitutional right to any particular sentence, save one that does not infringe s. 12 of the Charter. Rather, the full sentencing framework, including all guiding principles and available options, shapes how the challenged provision functions and how it affects the claimant group: Sharma, at paras. 56-61.
[26] It is also inappropriate to cherry-pick isolated features from fundamentally different legislative schemes or to demand point-by-point equivalence across regimes. Section 15(1) guarantees equal, not identical, treatment, and Parliament may draw age-based distinctions so long as they are not discriminatory: Sharma, at para. 58; C.P., at paras. 144, 159, per Wagner C.J. This principle is directly relevant here because the YCJA establishes a distinct and purposely different sentencing regime than that which applies to adults under the Criminal Code: I.M., at paras. 110, 171.
(2) The Sentencing Judge’s Error: Viewing s. 42(5)(a) in Isolation
[27] The sentencing judge began from the correct premise: s. 42(5)(a) would discriminate against young persons if it required youth justice courts to incarcerate them for conduct for which adults may receive a community-based sentence under the Criminal Code. Such an outcome would be harmful to young people. Custody represents a greater loss of liberty and is generally less effective at promoting rehabilitation than community-based options: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 40, 109. It can also disturb and unsettle a young person’s education and social circumstances, often aggravating their pre-existing challenges: I.M., at para. 180. As the sentencing judge observed, differential treatment that increases young people’s exposure to incarceration is inconsistent with their heightened vulnerability and reduced moral blameworthiness – considerations that the YCJA is designed to address, not aggravate. See also R. v. T.R., [2005] O.J. No. 6179 (C.J.), at para. 43.
[28] This conclusion remains sound despite the Crown’s submission that open custody is not equivalent to traditional incarceration. Even open custody is typically more onerous for young people than deferred custody. Although it is less restrictive than adult penitentiary custody and permits some supervised community contact, open custody remains imprisonment. Young persons remain confined unless granted approved leave, which can strain their family and community relationships, expose them to negative peer influences, and hinder their rehabilitation. For these reasons, open custody is generally more detrimental to youth than deferred custody: R. v. H. (M.), 1990 CarswellBC 849 (C.A.), at para. 15; R. v. B.D. (1986), 1986 CanLII 4622 (ON CA), 24 C.C.C. (3d) 187 (Ont. C.A.), at pp. 190-91; R. v. C. (K.L.) (2004), 2004 SKPC 98 (CanLII), 252 Sask. R. 254 (Prov. Ct.), at para. 44; R. v. G. (H.W.), 2003 SKPC 122, 236 Sask. R. 209, at para. 53; Justice Brock Jones et al., Prosecuting and Defending Youth Criminal Justice Cases, 3rd ed. (Toronto: Emond, 2024), at p. 288.
[29] However, the sentencing judge erred by examining s. 42(5)(a) in isolation from the YCJA’s broader statutory framework. The Act is designed to ensure that custody is used only as a last resort and that accountability is achieved, whenever appropriate, through a wide range of non-custodial and community-based measures. By failing to consider this context, the sentencing judge incorrectly concluded that s. 42(5)(a) displaced key sentencing principles and forced youth court judges to impose custody where non-custodial options remained available.
[30] When the YCJA’s full remedial framework is properly taken into account, the opposite is true. As Justice Katherine McLeod has explained, the mere unavailability of deferred custody “does not mean that a youth must go to jail.” Instead, the YCJA provides judges with ample tools to craft community-based sentences where appropriate: “the tools are within the Act to structure a sentence that does not necessarily entail a loss of liberty … if a sentencing judge believes a youth can and should serve a sentence in the community, that option is available”: R. v. Z. (M.), 2005 CarswellOnt 8447 (C.J.), at paras. 48, 51.
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(7) No Discriminatory Impact Proven
[95] When the YCJA’s comprehensive sentencing framework is properly applied, it becomes clear that s. 42(5)(a) does not place young persons at a disadvantage relative to adults. The YCJA offers a wide range of dispositions and preserves substantial judicial discretion. Judges retain numerous non-custodial options capable of serving the same functional purposes as conditional sentences under the Criminal Code – including robust probation orders, which met this need long before deferred custody was ever introduced. Because s. 42(5)(a) does not render youth worse off than adults, s. 15(1) of the Charter does not demand a line-by-line correspondence between the YCJA and the Criminal Code, nor does it entitle the respondent to extract the most favourable elements from the adult regime while retaining the distinctive advantages of the youth sentencing system.
[96] The result in this case – namely, that a non-custodial sentence was appropriate – illustrates the point. At sentencing, the respondent, who had no prior record, demonstrated genuine progress toward rehabilitation and reintegration through community-based programs, volunteer work, and educational pursuits. A custodial sentence would have significantly disrupted that progress. Such a consequence would not have been constructive and would have undermined, rather than advanced, the respondent’s rehabilitation. This would have frustrated the overriding goal in first offence cases – to protect society and advance the young person’s best interests by making every effort to ensure that the first offence is also the last.
[97] Although accountability also requires proportionality, the YCJA did not require resort to deferred custody to craft a proportionate sanction in this case. In the adult system, judges often prefer conditional sentences to probation to achieve proportionality because the Criminal Code restricts the imposition of punitive probation conditions. Under the YCJA, by contrast, equally robust probation conditions are expressly authorized and could have been imposed here if necessary. Additional proportional consequences – such as a driving prohibition or community service – were also available. In any event, individual deterrence and public protection were not pressing concerns, given that the offence was out of character and the respondent demonstrated genuine remorse and rehabilitation.
[98] Even if s. 42(5)(a) had not been applicable, s. 39(2) would have precluded a custodial disposition in this case. By overlooking the breadth of the YCJA’s non-custodial tools and presuming that deferred custody was the only meaningful alternative to incarceration, both the parties and the sentencing judge expanded the reach of youth custody beyond Parliament’s intent. This approach exposed the respondent to an unnecessary risk of immediate incarceration – a consequence that would have been neither constructive nor conducive to rehabilitation, that risked exacerbating his vulnerabilities, and that would have frustrated the policy of avoiding imprisonment for first offences whenever possible: I.M., at paras. 179-80.
[99] While individual deterrence and short-term public protection may be more salient in other cases, incarceration is not the inevitable response. Youth justice courts can use non-custodial alternatives to achieve these objectives by imposing proportionate and constructive consequences, ensuring adequate supervision, and insulating young persons from negative influences – just as they did for decades before deferred custody emerged. As well, certain options – such as intensive support and supervision and non-residential programs – are available only to youth and may offer stronger deterrent effects than custody, which, as the late former Chief Justice McMurtry observed, frequently fails to deter young offenders and may instead exacerbate their vulnerabilities. These programs compensate for the unavailability of deferred custody under s. 42(5)(a), ensuring that youth are not treated more harshly than adults: J.S.M., at para. 38; Z. (M.), at paras. 44-46; D.B., at para. 64; I.M., at paras. 179-80; Tuck-Jackson, at pp. 327-328; McMurtry & Curling, at p. 277.
[100] Moreover, actual incarceration is not automatically required even where it may appear to offer greater individual deterrence or short-term public protection. As I.M. emphasized, the YCJA subordinates individual deterrence to proportionality and prioritizes rehabilitation and restraint over denunciation and deterrence: at para. 176. Denunciation and individual deterrence are discretionary objectives. While public safety is vital, the YCJA furthers long-term protection through individualized dispositions that address the causes of offending, promote rehabilitation and reintegration, and impose proportionate and constructive consequences: B.W.P., at para. 31. Judges therefore retain discretion to impose non-custodial sentences when their rehabilitative and long-term protective benefits outweigh the marginal additional deterrence offered by incarceration: Okemow, at paras. 43-44, 57; P.R., at paras. 62, 66, 74-76, 79, 99. This may often be the case for young people without a prior record, where the cardinal policy is to ensure that their first offence remains their last: M.F., at paras. 25-26; K.(E.P.), at paras. 3-4.
[101] For example, in this case, permitting T.M. to remain with his family and within his community best promotes long-term public safety. The record demonstrates that this environment is optimal for supervising his behaviour and fostering his rehabilitation and reintegration following his first offence, including within his Indigenous community. Incarceration would jeopardize that progress by separating him from positive supports and potentially exposing him to negative peers, thus frustrating the overriding policy to make every effort to ensure that his first offence is also his last: G. (H.W.), at para. 53; I.M., at paras. 179-80. Even deferred custody would “unnecessarily limit[]” his family’s supervisory role and increase the risk of harsher sanctions for minor future lapses: R. v. T.D.P., 2004 SKPC 57, 250 Sask. R. 3, at para. 54. Any additional deterrence these stricter options might offer is unnecessary, given T.M.’s low risk of reoffending.
[102] The sentencing judge erred in assuming that, if deferred custody would have been preferable to other non-custodial dispositions, then actual custody must be the next-best option. That is not how the YCJA operates. Non-custodial options are not evaluated in isolation. Rather, as explained earlier, s. 39(2) requires a contextual analysis comparing available custodial and non-custodial dispositions and assessing how each aligns with the statute’s sentencing principles. Thus, a judge may still properly conclude that non-custodial options are preferable to actual custody, even if deferred custody would have been ideal.
[103] Finally, s. 38(2)(a) reinforces the constitutionality of this approach by requiring that young persons not be punished more harshly than adults who committed the same offence in similar circumstances. This mandatory principle required the sentencing judge to impose a non-custodial disposition if a similarly situated adult would have received a conditional sentence. Together with the YCJA’s broader sentencing framework, this safeguard ensures that s. 42(5)(a) does not produce discriminatory outcomes: D.B., at para. 43; R. v. F. (E.), 2007 ONCJ 113, 157 C.R.R. (2d) 189, at paras. 116, 159; J.S.M., at para. 37; R. v. A.T., 2004 ABPC 91, 362 A.R. 157, at paras. 67, 72.
E. Section 42(2)(p) Respects Equality Rights
[104] The sentencing judge also held that s. 42(2)(p) of the YCJA – which limits deferred custody orders to six months – violates s. 15(1) of the Charter. She reasoned that the provision creates a discriminatory, age-based distinction because youth are restricted to six months of community custody, while adults may receive conditional sentences of up to two years less a day. In her view, this shorter limit prevents youth court judges from using longer periods of community custody to avoid imposing actual incarceration.
[105] This conclusion is incorrect. The six-month cap in s. 42(2)(p) does not create a discriminatory age-based distinction; rather, it is a contextual sentencing limit that reflects the YCJA’s distinct framework and its protective orientation. In the adult regime, maximum custodial sentences are often far higher than both the maximum conditional sentence and the YCJA’s custodial ceilings. Dangerous driving causing death – the respondent’s offence – carries a maximum adult sentence of life imprisonment, whereas the maximum youth custodial sentence would ordinarily be two or three years. The six-month limit on deferred custody mirrors this structural difference. Like the adult scheme, the YCJA ensures that community-based custody remains shorter than actual custody, consistent with the statute’s emphasis on restraint and proportionality: T.R., at paras. 49–51; J.S.M., at para. 36.
[106] Moreover, s. 42(2)(p) does not unduly constrain judicial discretion because deferred custody may be combined with longer non-custodial dispositions. If a judge concludes that six months of deferred custody alone is insufficient to fulfill the objectives of sentencing, they may follow it with probation or impose an intensive support and supervision order, neither of which is subject to a six-month cap: J.S.M., at para. 40; J.H.-D., at paras. 20-21, 26-37.
[107] The six-month limit also serves important protective purposes tailored to the needs and vulnerabilities of young persons. It prevents “net-widening” by ensuring that youth are not subjected to extended periods during which a breach can result in immediate incarceration. Prolonged exposure to such conditions can be particularly harmful for young people, who experience time differently and feel more acutely the pressures of the justice system: C.P., at paras. 149, 161, per Wagner C.J.; S.J.L., at para. 64. A longer deferred custody period, such as two years, could lead to disproportionately severe consequences, heighten vulnerability, and increase the risk of deeper entrenchment in the justice system: I.M., at paras. 179-80.
[108] By declining to apply s. 42(2)(p), the sentencing judge expanded the reach of custody beyond Parliament’s intention. Her approach would have required the respondent to live under the threat of immediate incarceration for nearly two years, an extraordinarily long period in the life of a young person, instead of the six months prescribed by the YCJA, followed by probation. This reasoning failed to account for the respondent’s developmental needs as a young person and his particular vulnerability to the criminal justice system involvement, especially, as a racialized and Indigenous young person: S.J.L., at para. 64; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 90.
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