




WARNING

THIS
    IS AN APPEAL UNDER THE

YOUTH
    CRIMINAL JUSTICE ACT

AND
    IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to
    records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section
    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent
    disclosure by school) or (1.15) (information to be kept separate), 45(2)
    (destruction of records) or 46(1) (prohibition against disclosure) of the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable
    on summary conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.W., 2017 ONCA 22

DATE: 20170113

DOCKET: C59241 & C59382

Epstein, Pepall and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.W. and T.F.

Appellants

Peter Copeland, for the
    appellant TF

Erika Chozik and Nicola Langille,
    for the appellant MW

Brock Jones, for the
    respondent

Heard: May 10, 2016

On appeal from the sentences imposed on June 10, 2014 by
    Justice Ian V. B. Nordheimer of the Superior Court of Justice, with reasons
    reported at 2014 ONSC 3436.

Epstein J.A.:

A.

OVERVIEW

[1]

On November 17, 2010, Tyrone Bracken was shot in the head in the
    stairwell of an apartment building on Neptune Drive. He died instantly. SB
    fired the gun. Two friends of the deceased  TF and ShB  were present during
    the killing. Shortly after the shooting, MW arrived at the scene.

[2]

SB, ShB and the appellants  TF and MW  were charged with first degree
    murder. Although SB pulled the trigger, the appellants were found to have
    participated in developing and implementing a plan to kill Tyrone. ShB was
    acquitted. The other three  SB, TF and MW  were found guilty, as charged.

[3]

At the time Tyrone was murdered, all involved, including Tyrone, were 16
    years old.

[4]

The Crown applied under s. 64(1) of the
Youth Criminal Justice Act
, S.C. 2002, c. 1 (
YCJA
), for the appellants to be sentenced as adults.
The
    defence sought a 10 year sentence within the Intensive Rehabilitative Custody
    Supervision (IRCS) program. The
youth court
    judge allowed the Crowns application.
The appellants were given life

s
e
nten
c
es

with
    10

y
e
a
rs

p
a
role

inel
i
g
ib
i
l
i
t
y, pursuant to s. 745.1(b) of the
Criminal
    Code
.

[5]

The

appellants have appealed
    their convictions and the sentences imposed
.
On S
e
ptemb
e
r

23,

2015,

this
    court order
e
d

t
h
a
t

this
    combined

s
e
n
t
e
n
c
e

a
p
p
ea
l

p
ro
c
e
e
d

in
a
dv
a
n
c
e

of
    the
combined c
onv
i
c
t
i
on
a
pp
ea
l.

[6]

On appeal, the main arguments the appellants advance can be summarized
    as follows:

(a)

The youth court judge erred in
    his conclusion that problems with the IRCS program rendered a youth sentence
    ineffective in accomplishing the relevant principles of sentencing.

(b)

The
youth court judge, in assessing
    whether to impose an adult sentence,
failed
    to afford the appellants the benefit of the presumption of diminished moral
    blameworthiness (the Presumption) to which they are, in law, entitled.

[7]

As a result, the appellants submit that the sentences imposed should be
    set aside and this court should sentence them
de novo
. They argue that
    they should be given youth sentences with an IRCS order.

[8]

I agree with the appellants that the youth court judge erred in
    concluding that the IRCS program would not accomplish their necessary
    rehabilitation. In coming to that conclusion, the youth court judge relied on
    speculative concerns about the appellants willingness to cooperate with IRCS
    orders as well as other inaccurate assumptions about the implementation and
    enforcement of such orders. In my view, this approach tainted the youth court
    judges assessment of whether a youth sentence with an IRCS order for each
    appellant would be sufficient to achieve the sentencing goals set out in the
YCJA
and, in my view amounted to reversible error.

[9]

Accordingly, I would set aside the youth court judges decision to
    sentence the appellants as adults, putting this court in the position of being
    tasked with determining a fit sentence for each appellant.

[10]

For reasons I
    will explain, I conclude that the Crown has not met the burden of overcoming
    the Presumption for either appellant, and that a youth sentence would be of
    sufficient length to hold each appellant accountable for his offending
    behaviour.
[1]
Given that the IRCS program remains available to the appellants, and
    particularly in the light of the appellants rehabilitative potential,

I would allow the appeal, set aside the
    adult sentences and sentence both TF and MW under the provisions of the
YCJA
with an IRCS order, as detailed below.

B.

SENTENCING FRAMEWORK

[11]

In cases where,
    as here, the Crown brings an application to sentence as an adult a person
    convicted of first degree murder who was under the age of 18 at the time he or
    she committed the offence, the youth court judge has two choices. The youth
    court judge may sentence the offender either as a youth under the
YCJA
or as an adult under the
Criminal Code
.

(1)

Sentencing
    Young People Convicted of First Degree Murder under the
YCJA

[12]

Youth court
    judges must presumptively sentence persons who were 18 years of age or younger
    at the time of the offence under the
YCJA
.

[13]

If convicted of
    first degree murder, the maximum sentence that a youth court judge may impose
    on a young person is 10 years, comprised of a committal to custody that cannot
    exceed 6 years and placement under conditional supervision to be served in the
    community for the balance of the sentence:
YCJA
,

s. 42(2)(q).
    The proportion of custody to conditional supervision is within the youth court
    judge's discretion, subject to the legislated maximums.

[14]

For very serious
    offences, s. 42(2)(r) of the
YCJA
permits the imposition of an IRCS
    order as part of a youth sentence. A youth court judge may impose an IRCS order
    for up to 10 years in the case of first degree murder, if the young person
    qualifies for such an order:
YCJA
, ss. 42(2)(r), 42(7).

[15]

Consistent with
    one of the primary purposes of the
YCJA,
the intent of the IRCS
    program is to provide young persons that qualify for the program with the
    treatment they need to ensure their effective rehabilitation and reintegration
    into society.

[16]

Pursuant to s.
    42(7), an IRCS order can only be imposed if the following four conditions are
    satisfied:

a)

the young person has been found guilty of murder, attempted murder,
    manslaughter, aggravated sexual assault or a third serious violent crime;

b)

the young person is suffering from a mental illness or disorder, a
    psychological disorder or an emotional disturbance;

c)

a plan of treatment and intensive supervision has been developed for the
    young person, and there are reasonable grounds to believe the plan might reduce
    the young person's risk of recidivism; and

d)

the provincial director has determined that an IRCS program is available
    and the young person's participation in it is appropriate.

[17]

In the light of
    the objectives of the
YCJA
and s.
    42, the term
emotional disturbance should have a broad, flexible
    and inclusive meaning: Nicholas Bala & Sanjeev Anand,
Youth Criminal
    Justice Law
, 3rd ed. (Toronto: Irwin Law, 2012), at pp. 688-689;
R. v.
    A.H.
, 2006 SKQB 413, [2006] S.J. No.
    582
. In
A.H
., at para. 42, Klebuc J., as he was then,
    explained that to fall within the definition of the term emotional
    disturbance there need only be 
a deviation from, interruption of, or interference with a
    normal emotional state that can be materially addressed by specialized
    treatment and rehabilitative service.
The young person need not fall within a classified mental illness or
    psychological disorder to qualify for the IRCS program.

(2)

Sentencing Young
    People Convicted of First Degree Murder under the
Criminal Code

[18]

Where the young
    person is convicted of first degree murder and sentenced as an adult under the
Criminal
    Code
, the youth would receive a life sentence:
Criminal Code
, s.
    235(1). Here, given that both TF and MW were 16 at the time of the offence,
    they would be eligible for parole after serving 10 years:
Criminal Code
,
    s. 745.1(b).

(3)

The Test

[19]

A youth court
    judge may only sentence a young person as an adult if the youth court judge
    finds that the test set out in s. 72(1) of the
YCJA
has been met. This
    test has evolved.

[20]

Section 72(1) of
    the
YCJA
was amended in 2012 to expressly include the presumption of
    diminished moral culpability, which was recognized

in
R. v. D.B.,
2008 SCC 25, [2008] 2 S.C.R. 3: see S.C. 2012, c. 1, s. 183(1).

[21]

The current
    formulation of the framework reads as follows:

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.

[22]

In this case,
    the parties agreed, given the date of the offence, that the pre-2012 version
    the
YCJA
applied to the youth court judges analysis, which read as
    follows:

72 (1) In making its decision on an application heard
    in accordance with section 71, the youth justice court shall consider the
    seriousness and circumstances of the offence, and the age, maturity, character,
    background and previous record of the young person and any other factors that
    the court considers relevant, and

(b) if it is of the opinion that a youth sentence imposed
    in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii)
    and section 38 would not have sufficient length to hold the young person
    accountable for his or her offending behaviour, it shall order that an adult
    sentence be imposed.

[23]

In my view,
    nothing turns on which version of s. 72(1) of the
YCJA
the youth court
    judge applied. Although the Presumption was not expressly stated in the earlier
    version of s. 72(1), since
D.B.
, youth court judges have been required
    to presume diminished moral blameworthiness for all young persons. Under either
    iteration of s. 72(1) of the
YCJA
, before a youth court judge can
    sentence a young person as an adult, the Crown must satisfy the court that the
    presumption of diminished moral blameworthiness to which the young person is
    constitutionally entitled has been rebutted and that a youth sentence would not
    be of a sufficient length to hold the young person accountable for his or her
    offending behaviour:
D.B
., at paras. 45, 93;
R. v. Joseph
,
2016 ONSC 3061
, [2016]
    O.J. No. 2450, at paras. 48-52;
R. v. C.S.
,
    2014 ONSC 4362, [2014] O.J. No. 4206, at paras. 9-10;
R. v. B.L
.,
    2013 MBQB 89, 292 Man. R. (2d) 51, at paras. 3, 35. As can be seen from the
    wording of the legislation, to be successful in an application to impose an
    adult sentence, the Crown must satisfy both parts of the test.

C.

YOUTH COURT JUDGES REASONS FOR SENTENCE

[24]

The youth court
    judge
framed his analysis around the three
    factors set out in the pre-2012 version of s. 72(1) of the
YCJA
-
the seriousness and circumstances of
    the offence, the circumstances of the young person, and any other factors that
    the court considered relevant. He expressed the view that if a youth sentence
    would have sufficient length to hold the young person accountable for his or
    her offending behaviour, then a youth sentence must be imposed. If, however,
    he were to conclude that a youth sentence would not have that effect, he would
    have to impose an adult sentence.

(1)

The First
    Factor  the Seriousness and Circumstances of the Offence

[25]

This was a
    planned and deliberate murder of a teenage boy in which each appellant played a
    role. TF was Tyrones friend. TF used this friendship to get Tyrone into the
    stairwell in the apartment building where Tyrone lived and where the shooting
    took place. TF also alerted MW, who alerted SB, to the fact that Tyrone was at
    the complex on Neptune Drive. TF also arranged for SBs entry into the apartment
    building.

[26]

MW was the
    conduit between SB and TF. Although MW did not arrive at the scene until after
    Tyrone died, MW relayed key information from TF to SB, and ensured that TF and
    SB were in contact so that they could connect when SB arrived at the complex.

[27]

The youth court
    judge held that the seriousness of the appellants actions was exacerbated by
    their post-offence conduct. The youth court judge found that TF hid the firearm
    in his apartment and got his mother to dispose of it. The youth court judge
    also found that MW deflected the blame for Tyrones murder to others and
    engaged in discussions with SB about the need to kill ShB, and possibly ShBs
    mother and sister, as well. The youth court judge was also troubled by the fact
    that the evidence did not reveal any reason why Tyrone was murdered.

(2)

The Second
    Factor  the Circumstances of the Offender

(a)

TF

[28]

TF was almost 17
    years old when the murder took place. TFs parents separated when he was three years
    old.  TF has had little contact with his father. A step-father came into the
    picture  a man who abused TFs mother.

[29]

TF did not do
    well in school due to the fact that he suffers from a learning disability. He
    described himself as always down and started using marijuana daily since the
    age of 14 at least in part due to his negative mood.

[30]

The youth court
    judge noted TFs criminal record  two convictions for assault, one for robbery
    and three for failing to comply with court orders.  TF had completed the open
    supervision portion of his sentence on the robbery conviction just three days before
    the murder. At the time of the murder, TF was on probation and was subject to a
    weapons prohibition order. The youth court judge also commented on the fact
    that TF had a number of behavioural incidents while in custody  the most
    significant being that he assaulted another youth. He was convicted as an adult
    for that offence.

[31]

The youth court
    judge also reviewed various positive factors identified in TFs pre-sentence
    report (PSR). The author of the report indicated the improvement in TFs
    conduct after he was detained on the murder charge. Significantly, TF had
    attained his high school diploma and earned a number of certificates for
    participating in other programs. He had been described as a role model to his
    peers while at the Cecil Facer Youth Centre (CFYC) and staff commented that
    TF was noticeably more mature when he eventually returned to the Roy McMurtry
    Centre (RMC). At RMC, TF continued to exhibit role model behaviour and he was
    polite and respectful towards staff.

[32]

The youth court
    judge commented on the report prepared by Dr. Lisa Ramshaw, a psychiatrist at
    CAMH, under s. 34 of the
YCJA
.
[2]
He noted Dr. Ramshaws view that TF experienced substantial levels of anger and
    anger-related problems that were considered likely to interfere with his
    day-to-day functioning and his relationships with others.  Dr. Ramshaws
    opinion was that TF was at high risk for future aggression. However, Dr.
    Ramshaw had also indicated that with structure, counselling and direct
    supervision, TF had made gradual improvements in his behaviour, academics and
    maturity.

[33]

The youth court
    judge further noted that Dr. Ramshaw cautioned that her report was limited by TFs
    unwillingness to discuss the offence because he was appealing his conviction
    and was acting on the advice of counsel not to discuss what happened. It was
    against that background that the youth court judge commented that there was no
    evidence that TF had accepted responsibility for his actions in relation to the
    murder or felt any remorse and, as such, these mitigating factors were absent.

(b)

MW

[34]

The youth court
    judge observed that MW had just turned 16 at the time of the offence.

[35]

As a result of
    MWs fathers abuse of MWs mother, they separated when MW was three years old.
    MW had little contact with his father after the separation and began to show
    behavioural problems at the age of four or five. MW was diagnosed with ADHD but
    refused to take medication for his condition. He would lose his temper easily
    and become quite angry, although the youth court judge noted that MWs anger
    problems were, at the time of trial, less severe than they were in the past. 
    At about the age of nine, MW turned to marijuana and smoked daily by grade 6 or
    7.

[36]

MWs criminal
    record consisted of a conviction for possession of a prohibited or restricted
    firearm with ammunition and assault with a weapon. At the time of the murder, MW
    was on probation arising from these offences. He was also subject to a weapons
    prohibition order. He admitted to having sold drugs, although he was never
    caught by the police for doing so.

[37]

The youth court
    judge reviewed MWs PSR.  It described him as mature and cooperative. While in
    custody, MW received 20 certificates for various achievements  most significantly,
    having attained his high school diploma. However, MW also accumulated behavioural
    incidents while in custody, including two assaults and two incidents where he
    was suspected of hiding drugs.

[38]

The youth court
    judge noted that in her s. 34 report about MW, Dr. Ramshaw identified problems
    with aggression flowing from anger, lack of trust and poor coping strategies.
    The report also indicated MWs susceptibility to negative peer influences. Dr.
    Ramshaws overall assessment was that, although MW did not suffer from a major
    mental illness, he had emotional disturbances involving anger and trust. She
    concluded that he posed a moderate risk of reoffending.

[39]

The youth court
    judge noted that, as in the case of TF, MW refused to discuss the offence
    because he was appealing his conviction. MW also maintained that he was
    innocent. This posed a dilemma for sentencing because, although MW was entitled
    to take the position that he was wrongly convicted, his silence concerning the
    offence resulted in his not taking responsibility for his actions or showing
    remorse. The youth court judge expressed additional concern that, since MW also
    maintained that he had previously been wrongly convicted for another offence,
    he was generally unwilling to assume responsibility for his actions.  Again,
    these otherwise mitigating factors were therefore unavailable.

(3)

Other Factors

(a)

Societal Interests

[40]

The youth court
    judge acknowledged, referring to s. 38(1) of the
YCJA
, the importance
    of what he referred to as the interests of society saying, at para. 41:

[T]he interests of the young person in rehabilitation and
    reintegration must be balanced against the societal interests in ensuring that
    young persons who commit serious violent crimes are subject to meaningful
    penalties that not only hold the young person accountable for his or her
    actions but will also assist in the protection and safety of the community at
    large.

While the
YCJA
is offender-centred, it is not
    offender exclusive.  Rehabilitation was but one factor in the overall analysis.

(b)

Consideration of IRCS

[41]

The youth court
    judge then turned to a consideration of the role of an IRCS order in these
    circumstances. The youth court judge expressed no doubt that TF and MW would
    benefit from the IRCS program. However, he identified what he described as certain
    problems with the IRCS program, including: (a) that a transfer from a
    provincial to a federal penitentiary could eliminate the funding needed for the
    program; (b) the programs lack of enforcement mechanisms; and (c) the limited duration
    of the order, particularly given the youth court judges view that he was
    required to give actual credit for pre-sentence custody, and subsequent lack of
    supervision. The youth court judge contrasted the supervision available under
    the
YCJA
and the National Parole Board in the federal system. The
    youth court judge also noted at para. 50, that [w]hile an IRCS order is a
    positive opportunity for the rehabilitation of any young person, it does not
    come with any lifetime warranty.

[42]

Ultimately, at
    para. 51, the youth court judge concluded that:

[T]hese failings in the IRCS regime are fundamentally problematic
    for a case such as this. It makes it unwise to place too much reliance on the
    IRCS order as the answer to the fundamental concern raised by the conduct in this
    case. It is simply too risky to assume that the IRCS order will be able to bear
    the weight of ensuring the desired result, which is not only the rehabilitation
    of the offender but also the protection of the public. I repeat that while I
    accept that an IRCS order would be beneficial for the rehabilitation of MW and TF,
    rehabilitation is not the sole goal mandated by the
YCJA
.

[43]

In concluding
    his analysis, on the first factor, the youth court judge found that the
    seriousness of the offence weighed in favour of an adult sentence, stating at
    para. 52:

[I]t would be a rare and unusual case where the offence of
    first degree murder would not incline one toward the imposition of an adult
    sentence since the concept of retribution would normally tilt that factor
    towards that result.  While the
YCJA
provides a penalty for first and
    second degree murder, the situations where those penalties will be properly
    viewed as having meaningful consequences are likely to be much fewer for the
    offence of murder than would be the case for all other offences.

[44]

On the second
    factor, the youth court judge concluded that although both appellants had shown
    degrees of positive personal growth, numerous elements of their background and
    personal circumstances supported the imposition of an adult sentence.

[45]

Finally, on the
    third factor, the youth court judge reasoned at paras. 54-55 that:

Society has an interest in ensuring that young persons who
    commit serious violent offences are subject to meaningful penalties. The
YCJA
says that the test is whether the length of a youth sentence would hold the
    young person accountable.  The Court of Appeal has said that accountable, in
    that sense, equates to the principle of retribution. The Supreme Court of
    Canada has said that retribution requires a reasoned and measured determination
    of an appropriate punishment which properly reflects the moral culpability of
    the offender.

This was the most serious of offences. It was the planned and
    deliberate murder of a sixteen year old boy at the hands of three other sixteen
    year old boys. The victim is shot execution style in the stairwell of his apartment
    building for reasons that remain unknown. It is the type of event that, to most
    citizens of this city, is both inexplicable and inherently alarming. It is
    difficult for most people to understand how young persons can come to engage in
    such conduct and, consequently, it instils fear in the minds of ordinary
    people.

[46]

The youth court
    judge then summarized his reasoning for imposing adult sentences for each
    appellant.

[47]

Concerning TF,
    he said at paras. 59-60:

TF

p
o
s
e
s
t
he

m
ost

d
i
f
fi
c
u
l
t

s
i
t
u
a
ti
on

b
ec
a
use

o
f

h
i
s

pos
it
i
v
e

ach
i
e
v
e
m
en
t
s

w
h
i
l
e

i
n cu
st
o
d
y
.
I
ndeed,

of

t
he

t
h
r
e
e,
TF
ap
p
ea
r
s

t
o

ha
v
e

m
ade

t
he

gr
e
a
t
e
s
t

s
t
ri
d
es

i
n

c
h
a
ng
i
ng

h
i
s
    ou
t
l
ook

and

h
i
s

a
t
t
i
t
ude.
H
e

has

m
a
t
u
r
ed

and

p
r
e
s
e
n
t
s

a
m
uch
m
o
r
e

encou
r
a
g
i
ng

p
i
c
t
u
r
e

i
n
t
e
r
m
s

o
f
i
n [sic] h
i
s d
e
a
l
i
n
g
s

wit
h

o
t
he
r
s.
A
t
t
he s
a
m
e
ti
m
e,

ho
w
e
v
e
r
, s
e
ri
o
us

con
c
e
r
n
s
r
e
m
a
i
n
r
e
g
a
r
d
i
ng
TF

s

i
s
s
u
es

su
r
r
ound
i
ng

an
g
er

m
an
a
g
e
m
en
t
.

H
e

has

m
ade

so
m
e

p
r
o
g
r
e
s
s

i
n

t
h
i
s
r
e
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a
r
d

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u
t

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t

app
e
a
r
s

t
o

be

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a
r
g
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l
y

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he

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e
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l
t

of

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he

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t
r
u
c
t
u
r
e
d

s
e
t
t
i
ng

t
hat

h
e

has

b
e
e
n

i
n.
O
f cou
r
s
e,

t
he
l
on
g
er
t
he

s
t
ru
c
t
u
r
ed

s
e
t
ti
ng
r
e
m
a
i
ns,

t
h
e
g
r
ea
t
e
r

p
o
t
e
n
t
i
al
t
h
e
r
e
i
s
f
or
t
he p
r
o
g
r
e
s
s

t
o

con
t
i
n
u
e and

f
or

i
t
t
o

beco
m
e
i
n
g
r
a
i
ned.

I
n

add
it
i
on,

I
    con
t
i
n
u
e

t
o

b
e

t
r
ou
b
l
ed

by

t
h
e

f
a
c
t

t
h
a
t
TF

us
e
d

h
i
s

po
s
i
t
i
on

as

a
fr
i
end

o
f
T
y
r
one

t
o

l
u
r
e
h
i
m

i
n
t
o

t
he

s
t
a
ir
w
e
l
l
w
h
e
r
e

he

cou
l
d

be

k
ill
ed.

N
ot

o
n
l
y

does

su
c
h

condu
c
t
r
ep
r
e
s
e
nt

a

m
ost

f
u
nda
m
en
t
al

b
r
e
ach

o
f

t
r
us
t
,

t
h
e
r
e
i
s

no

e
v
i
dence
t
h
a
t
TF

h
a
s

a
ny
r
eal
r
e
g
r
et
f
or

h
i
s

a
c
t
i
on
s
.
    Fu
r
t
he
r
,

a
s

i
s
t
he

c
a
s
e

w
it
h
t
he o
t
h
e
r
s,

t
he
r
e

i
s

n
o

ex
p
l
a
n
a
t
i
on

f
o
r
TF
s

r
o
l
e
i
n
t
h
i
s

e
v
en
t
.
T
h
i
s
i
s

m
o
r
e

t
r
oub
l
e
s
o
m
e,

t
hou
g
h,

i
n TFs

c
a
s
e

g
i
v
en

h
i
s
r
e
l
a
t
i
ons
h
i
p

w
it
h
T
y
r
one

a
nd

h
i
s

f
a
m
il
y
.
I
n

pa
r
t
i
c
u
l
a
r
,

t
h
e
r
e

i
s

no

e
x
p
l
a
na
t
i
on

w
hy
TF
cho
s
e
t
o

s
a
c
r
i
f
i
ce

T
y
r
one
i
n

t
he

w
ay
t
h
a
t

he

d
i
d

g
i
ven

h
i
s
r
e
l
a
t
i
on
s
h
i
p,

n
o
t

o
n
l
y
w
it
h
T
y
r
one,

but

w
it
h

T
y
r
o
n
e

s

m
o
t
her

and
    w
i
t
h
h
i
s
s
i
s
t
e
r
.

TFs

c
o
ndu
c
t

r
a
i
s
es

a

s
e
r
i
ous
i
s
s
u
e
r
e
g
a
r
d
i
ng h
i
s

a
t
t
i
tude
t
o
w
a
r
ds

o
t
h
e
r
s,

o
ne
t
h
a
t

i
s

v
e
r
y
tr
o
u
b
l
i
ng
f
or

h
i
s
f
u
t
u
r
e

i
n
t
e
r
a
c
t
i
on
w
it
h

any pe
r
s
o
n

w
it
h

w
h
o
m

he

m
i
g
ht

c
o
m
e

i
n
t
o

co
nf
li
c
t
.
T
h
a
t

con
c
e
r
n,

c
o
up
l
ed

w
it
h

h
i
s
    on
g
o
i
ng
    an
g
er

p
r
o
b
l
e
m
s,

s
a
t
i
s
f
i
es

m
e

t
h
a
t

c
o
n
t
i
nu
i
ng sup
e
r
v
i
s
i
o
n
i
s

n
ec
e
s
s
a
r
y
f
or
t
he p
r
o
t
ec
t
i
on
o
f

t
he

p
u
b
l
i
c.
A
n

adu
l
t

s
en
t
en
c
e

p
r
o
v
i
d
e
s

a

l
on
g
er

pe
r
i
od
f
o
r

TF

t
o

co
n
ti
n
u
e

t
o
    de
m
ons
tr
a
t
e

i
m
p
r
o
v
e
m
ent

w
h
il
e

p
r
o
v
i
d
i
ng
    a

g
r
ea
t
e
r
l
e
v
el

of

s
u
pe
r
v
i
s
i
on

r
e
g
a
r
d
i
ng h
i
s
    p
r
o
g
r
e
s
s.
I
t

a
l
so
p
r
o
v
i
des

a
g
r
ea
t
e
r
l
e
v
el

of

p
r
o
t
e
c
ti
o
n
f
or
t
h
e pu
b
l
i
c.

[48]

Concerning MW,
    he said at paras. 57-58:

When it comes to MW, I acknowledge that there are positives in
    terms of his achievements since he has been in custody. However, there are also
    continuing issues regarding MWs ability to control his behaviour and
    aggressiveness as the large number of behaviour incidents, while he has been in
    custody, demonstrate. In addition, as I have already set out, there is no
    acceptance by MW of any responsibility for his actions nor any signs of
    remorse, either for the killing of Tyrone or for any of the other criminal
    activity in which MW has engaged. Further, MWs active participation in the
    discussions about killing [the witness] remain a particularly troubling aspect
    of his involvement in this matter.

I am not satisfied that a youth sentence, even if coupled with
    an IRCS order, would adequately hold MW accountable for his actions nor would
    it provide the necessary level of protection to society. I will add that, to
    the degree that MW has achieved some rehabilitation while in custody, I see no
    reason why that progress cannot be continued in a Federal penitentiary. Federal
    penitentiaries provide programming  albeit not to the level that an IRCS order
    would provide. However, an adult sentence provides for a longer period for
    rehabilitation to take hold and a greater level of supervision regarding
    whatever efforts MW may make in that regard.

D.

THE STANDARD OF REVIEW

[49]


Sentencing
    judges are afforded wide latitude in their determination of a fit sentence.
    Among other things, they have the advantage of having heard and seen the
    witnesses. They are therefore in the best position to determine a just and
    appropriate sentence that is consistent with the objectives and principles of
    the relevant sentencing regime. The fact that a judge deviates from the proper
    sentencing range does not in itself justify appellate intervention.
In
    the absence of an error in law or principle that has an impact on the sentence,
    an appellate court should only interfere with the sentence imposed at trial if
    it is demonstrably unfit:
R. v. M.(C.A.)
, [1996] 1 S.C.R. 500, at
    para.
90;
R. v. Rezai
(1996), 31 O.R. (3d) 713
    (C.A.);
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras.
11,
    44;
R. v. Grant
, 2016 ONCA 639, [2016] O.J. No. 4419, at para. 162.



E.

ANALYSIS

(1) Did the youth court judge err in his conclusion that problems with the
    IRCS program rendered a youth sentence ineffective in accomplishing the
    relevant principles of sentencing?

(a)

Arguments on Appeal

[50]

The appellants
    submit that the youth court judge made numerous errors in his assessment of the
    enforceability, potential duration and effectiveness of an IRCS order, leading
    him to conclude that adult sentences were required.

[51]

The appellants
    argue that the youth court judge failed to interpret the provisions governing
    IRCS-based dispositions purposively in concluding that there is no evident
    penalty in the event that a young person does not participate in treatment or
    programming, and that no further legal consequences flow from a young persons
    refusal to participate in treatment or programming.

[52]

The appellants
    further submit that the youth court judge erred in his assessment of the
    potential length of a youth sentence because, in his view, the requirement set
    out in s. 38(3)(d) of the
YCJA
that time spent in detention must be
    taken into account means that some amount of actual credit for pre-sentence
    custody had to be given when imposing a sentence on a youth.

[53]

The appellants
    also contend that the youth court judges concerns that they might change their
    minds about participating in the IRCS program were speculative and contrary to
    the evidence presented on sentencing. Moreover, the youth court judge demanded
    an unreasonably high degree of certainty that the program would rehabilitate
    both appellants.

[54]

Finally, the
    appellants argue that the youth court judge took inappropriate factors into
    consideration in discounting the effectiveness of the IRCS program, including
    the possibility that they could be transferred to a federal penitentiary where
    funding for IRCS is not available.

[55]

The respondents
    position is that the youth court judge raised valid concerns about the IRCS
    program and contemplated realistic problems regarding the implementation and
    enforcement of IRCS orders. It was appropriate, argues the respondent, for the
    youth court judge to be concerned that a youth sentence with an IRCS order
    lacked the ongoing supervision of the National Parole Board that would be
    available if an adult sentence of life imprisonment were imposed. Once the IRCS
    orders end, so too does any supervision of the appellants. The respondent
    points out that the youth court judge was particularly focused on the lack of
    long-term supervision, given that he was not satisfied the appellants would be
    rehabilitated by the end of a youth sentence, leaving the public inadequately
    protected.

(b)

Errors in IRCS Analysis

[56]

I would give
    effect to this ground of appeal.

[57]

As previously
    indicated, the youth court judge identified a number of problems associated
    with the IRCS program. This analysis significantly impacted his assessment of
    why a youth sentence was insufficient to hold the appellants accountable for
    their actions. As I will now explain, I do not share his view.

[58]

I will deal with
    each of these perceived problems in turn.

(i)

Custodial Placement and Funding

[59]

The youth court
    judge believed that the uncertainty of the appellants custodial placement was problematic
    because it would impact the availability of funding for, and therefore the
    ability of the appellants to participate in the IRCS program. The youth court
    judge observed, at para. 45, that since TF is now 20 years old, he is p
r
e
su
m
p
ti
v
e
l
y
    su
b
j
e
c
t

t
o

b
e
i
ng
tr
a
n
s
f
e
r
r
ed

t
o

an

adu
l
t

f
a
c
i
l
it
y.
The youth court judge expressed the concern that,
    pursuant to s. 93(2) of the
YCJA
, if TF were

s
er
v
i
ng a

s
i
x
y
ear

cu
s
t
odial

s
e
n
t
ence,

i
t
w
ou
l
d

be

o
p
en

t
o

t
h
e

Pr
ov
i
nc
i
a
l
D
ir
e
c
t
o
r

t
o

a
s
k

t
o

h
av
e

h
i
m
tr
a
n
s
f
e
r
r
ed

t
o

a

Fe
d
e
r
a
l

pe
n
i
t
en
t
i
a
r
y.
 The youth court judge worried that once
    TF left the provincial system,
t
he

f
und
i
ng

f
or

t
h
e
I
RC
S

program

w
o
u
l
d

c
e
a
s
e.
The
    youth court judge also expressed concern that f
or
t
he

I
RC
S

o
r
der
t
o

co
n
t
i
nue, TF
w
o
u
l
d

hav
e

t
o

remain in a p
r
o
v
i
nc
i
al

r
e
f
or
m
a
t
o
r
y

f
o
r

a

m
uch

l
on
g
er

pe
r
i
od
o
f

ti
m
e

t
han is normal for adults. The youth court
    judge found that the same concerns applied to MW who turned 20 a few months
    after the youth court judge gave his reasons for sentence.

[60]

With respect, based
    on the record before him, the youth court judges placement and related funding
    concerns were not justified. The concerns were premised on the possibility that
    the provincial director may decide to transfer either appellant to a federal
    facility, a decision that would halt access to funding. However, s. 93(1) of
    the
YCJA
provides that a young person serving a youth sentence who
    reaches the age of 20, shall be transferred to a provincial correctional
    facility for adults to serve the remainder of the youth sentence, unless the
    provincial director orders that the young person continue to serve the youth
    sentence in a youth custody facility. It is only when the provincial director
    brings an application, and after the young person, the provincial director and
    representatives of the provincial and federal correctional systems have had an
    opportunity to be heard, that a youth court judge may order the remainder of
    the sentence to be served in a federal penitentiary  and then only if it would
    be in the best interests of the young person or the public:
YCJA
, at
    s. 89.

[61]

Simply put, the
YCJA
framework presumes that young persons will serve their sentences in provincial
    facilities, unless circumstances indicate that a transfer to the federal system
    is warranted.  Nothing in the evidence suggests any basis for the provincial
    director to bring an application for the transfer of either appellant to the
    federal system, let alone supports the conclusion that it would be in the
    appellants or the publics best interests for them to be transferred. The
    record shows that, in the provincial system, the appellants demonstrated both
    the incentive and the ability to become responsible members of society.

(ii)

Enforcement

[62]

With respect to
    enforceability, the youth court judge emphasized that an IRCS order can only
    operate with the young persons willing participation and commitment. He found
    there to be no penalty if the young person chooses, at some future point, to
    stop participating in the program. He explained that an IRCS order is not like
    a conditional sentence where the breach of a condition results in the person
    being brought back before the court to re-evaluate the sentence. It is also not
    like a probation order where the breach of a condition is, in and of itself, a
    separate offence.

[63]

I do not agree
    with the youth court judges statement, at para. 46, that [a] young person
    could, at any point during the ten years where the IRCS order would be
    outstanding in a case such as this, decide to no longer abide by its terms and
    there would be no further legal consequences for that young person.
To the contrary,
the
YCJA
provides for
    legal consequences in the event of non-compliance as well as strong incentives
    to comply.

[64]

I start with the
    consequences in the event of non-compliance with the IRCS program. For the most
    part, these consequences involve increased time in custody.

[65]

Section 94 of
    the
YCJA
establishes the framework for monitoring a youths
    participation and cooperation with the terms of an IRCS order. Section 94(3)
    provides the provincial director with the discretion to bring a young person,
    subject to an IRCS order, before a youth court judge at any time during the
    custodial term of the sentence for a review of his or her sentence. Section
    94(19)(c) says that where the offence is murder, the youth justice court can,
    after reviewing the matter and if the provincial director so recommends,
    convert a youth sentence with an IRCS order under s. 42(2)(r) into a regular
    youth sentence under s. 42(2)(q). As a result, the young person would no longer
    have access to the resources, treatment and rehabilitative services available
    through the IRCS program.

[66]

Further, under
    s. 104 of the
YCJA
, during the custodial portion of the sentence, if a
    youth court judge is satisfied that 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 before the expiry of the youth sentence, the
    judge may order that the young person remain in custody for a period not
    exceeding the remainder of his or her sentence.

[67]

In addition, if
    the young person is non-compliant during the community supervision portion of
    his or her sentence and the youth justice court is satisfied on reasonable
    grounds that the young person either has breached or will breach a condition
    under an IRCS order, the young person may be returned to custody for the
    balance of his or her sentence:
YCJA,
ss. 106-109.

[68]

For these
    reasons, I disagree with the youth court judges assessment that there are no
    enforcement mechanisms if a young person does not comply with an IRCS order or
    chooses not to participate in treatment and programming.

[69]

I now turn to
    the incentives to encourage compliance with the terms of an IRCS order. For the
    most part, these incentives involve decreased time in custody.

[70]

The
YCJA
encourages compliance through the s. 94 annual reviews. Significantly, a youth
    justice court may, having regard to the needs of the young person and societys
    interests, grant the young person early release from custody and place him or
    her under conditional supervision:
YCJA
, s. 94(19)(b).
[3]
In addition, the provincial director can make a recommendation to the youth
    justice court that a young person be released from custody and placed under
    conditional supervision if he or she is satisfied that the needs of the young
    person and the interests of society would be better served by doing so:
YCJA
,
    s. 96. Bala and Anand, recognize the force of this incentive. They explain at
    pp. 642-643:

The most effective means of successfully engaging a young
    offender who is in custody, therapy, or counselling will usually involve
    offering the possibility of early review and release from custody as an
    incentive to participation. This type of inducement can serve to secure the
    youths co-operation, and it makes sense to offer early release to a youth who
    has successfully undergone treatment. Youth who are subject to the IRCS
    sentence are eligible for early release under section 94 or 96, as well as for
    rehabilitation leave, which may provide an incentive for active engagement in
    any treatment programs offered.

[71]

These provisions
    of the
YCJA
give teeth to the IRCS program. They provide meaningful
    consequences to discourage non-compliance and meaningful incentives to
    encourage compliance, with IRCS orders. As Bala and Anand explain, the
    potential of an increase or decrease in time spent in custody is a strong
    motivating factor.

[72]

Moreover, the
    youth court judges consideration of the possibility that the appellants might
    change their minds about participating in the program was speculative and, in
    fact, contrary to the evidence presented on their behalf. As I will detail
    below, the record shows that both appellants respond well to structure and
    supervision. Moreover, Rawle Elliott, an advocacy officer with the Office of
    the Provincial Advocate for Children and Youth, met with TF and MW to assess
    their willingness to participate in the IRCS program. Mr. Elliott testified at
    the sentencing hearing that both appellants consented to treatment and agreed
    to comply with the program.

(iii)

Duration of the Sentence and Ongoing Supervision

[73]

The youth court
    judge expressed concern at para. 48 that with an IRCS order
t
h
e
r
e

i
s

no

on
g
o
i
ng sup
er
v
i
s
i
o
n
of a type
s
i
m
il
ar

t
o
t
he

s
u
pe
r
v
i
s
i
on

p
r
o
v
i
ded

by

t
he

N
a
t
i
o
n
al

P
a
r
o
l
e

B
o
a
r
d

i
n

t
he

c
a
s
e

o
f

a

p
e
r
son

w
ho

r
ece
i
ve
s
    a

l
i
f
e

s
e
n
t
e
nce

f
or

m
u
r
de
r
.

I
n

t
hat

l
a
t
t
er

s
i
t
u
a
ti
o
n
,

t
he

pe
r
s
o
n

i
s

s
ub
j
e
ct

t
o

su
p
e
r
v
i
s
i
on

f
or
l
i
f
e.
The youth court judge used TF as an example to
    highlight that
i
f

c
r
e
d
i
t
i
s

g
i
v
en

f
or

TFs

p
r
e
-
s
e
n
t
ence

c
us
t
ody of
3.5

y
ea
r
s,

t
he

m
ax
i
m
u
m

pe
ri
od

t
h
a
t
TF
w
o
u
l
d

b
e

su
b
j
e
ct

t
o

t
h
e

I
RC
S

o
r
d
e
r

w
ou
l
d be

6.5

y
ea
r
s.

When
TF
i
s

i
n

h
i
s

m
i
d
-
t
w
en
t
i
e
s, the IRCS order would end, as

w
ou
l
d

a
l
l

sup
e
r
v
i
s
i
on

o
v
er

h
i
m
.
The youth court judge found MWs situation to be
    similar.

[74]

In my view, the
    youth court judges identification of this as a problem with the IRCS program
    demonstrates a lack of confidence in the program. There is no evidence to
    support a conclusion that the program could not effectively address the
    appellants underlying emotional disturbances, or that the appellants would not
    be adequately rehabilitated by the program.

[75]

First, and
    contrary to the concerns expressed by the youth court judge, the appellants s.
    34 psychological report speaks about their commitment to programming and their
    promising degree of success with structured programs. Dr. Ramshaw commented
    that despite TFs long-standing difficulties with anger, he exhibits pro-social
    values and does well in supportive environments. Similarly, although MW
    struggled with anger, trust and had poor coping strategies, Dr. Ramshaw
    believed that his maturity and behaviour would improve with structure and
    direct supervision. Dr. Ramshaw therefore concluded that both TF and MW would
    likely develop further pro-social skills and greater resilience over the
    long-term if given an opportunity to participate in the IRCS program. The
    appellants respective PSRs support Dr. Ramshaws views in this regard.

[76]

With respect, on
    this record, I am of the view that it is speculative to assume that the
    appellants would not continue to progress within the IRCS program, or to assume
    that they would not be rehabilitated to the point where they could safely
    rejoin society by the end of an appropriate youth sentence. The youth court
    judge fairly recognized that rehabilitation is only one factor for
    consideration and that societys interest in having an offender sentenced to
    meaningful consequences is also an important consideration. However, a youths effective
    rehabilitation serves the interests of society.

[77]

It was in
    describing the failings in the IRCS regime that the youth court judge turned
    to the subject of credit for pre-sentence custody. At para. 49, he affirmed, with
    reference to his earlier decisions on the point, that he remained of the view
    that some credit for pre-sentence custody must be given when imposing a
    sentence on young persons.

[78]

The law does not
    support this view. There is well-settled authority from this court that,
    although a youth court judge must consider pre-sentence custody in sentencing
    an offender, the judges treatment of the pre-sentence custody is
    discretionary:
R. v. D.S.
, 2008 ONCA 740, 93 O.R. (3d) 211, at para.
    26;
R. v. D.W.
, 2008 ONCA 268, [2008] O.J. No. 1356, at para. 3.
    Section 38(3)(d) of the
YCJA
requires the youth court judge to take
    detention into account, but the judge is not required to actually deduct pre-sentence
    custody when crafting an appropriate sentence. Whether and to what extent credit
    is given for pre-sentence custody against a youth sentence is within a youth
    court judges discretion, particularly in the context of a Crown application to
    sentence a youth as an adult:
D.W.
, at para. 3;
R. v. M.B.
,
    2016 ONCA 760, [2016] O.J. No. 5365. In such cases, pre-sentence custody can be
    taken into account as a consideration in determining whether the young person
    would serve an adult or youth sentence as opposed to through an actual credit
    to length of sentence imposed. Other appellate courts have come to the same
    conclusion:
R. v. N.W.P.
, 2008 MBCA 101, 231 Man. R. (2d) 61, at para.
    23;
R. v. R.R.J.
, 2009 BCCA 580, [2009] B.C.J. No. 2519, at para. 60;
R.
    v. D.D.T.
, 2010 ABCA 365, 493 A.R. 167, at paras. 57, 59.

[79]

The youth court
    judge therefore erred in assuming that the length of any youth sentence imposed
    had to be reduced by a certain amount of pre-sentence custody. Although the
    youth court judge described the issue of pre-sentence custody credit as more
    academic than practical, given his conclusion that an adult sentence was
    warranted, it is clear that his view that he had to give some credit for pre-sentence
    custody influenced his conclusion that a youth sentence would not be sufficiently
    long to hold the appellants accountable and accomplish the goals of rehabilitation
    and protection of the public.

[80]

Finally,
    although it is fair to say, as the youth court judge did in this case, that the
    IRCS program cannot offer a guarantee that the appellants will be completely
    rehabilitated, this is not a basis to discount the IRCS program. This court
    recognized in
R. v. A.O.
, 2007 ONCA 144, 84 O.R. (3d) 561, at para.
    58:

There is no guarantee that any sentence, however skillfully
    fashioned, will ensure the rehabilitation of an offender. What is required under
    the
YCJA
is that the sentence has meaningful consequences for the
    affected young person and that it promotes his or her rehabilitation and
    reintegration into society.

(c)

Conclusion with Respect to the Youth Court Judges Assessment of the
    IRCS Program

[81]

In my view,
    these errors and their impact on the youth court judges decision to impose an
    adult sentence, lead to the conclusion that the sentence must be set aside:
Lacasse
,
    at paras. 11, 44.

(2) Additional Grounds of Appeal

[82]

Although, as set
    out above, the appellants argued that the youth court judge erred in his view
    of the efficacy of the IRCS program, I do note that the appellants primary
    ground of appeal was that the youth court judge erred by not giving them the
    benefit of the Presumption.

[83]

The fact that
    the youth court judge did not mention the Presumption in his reasons is of
    concern. However, in the light of my conclusion that the youth court judge
    committed reversible error in his analysis of the IRCS program, it is not necessary
    to consider the Presumption argument. Nor is it necessary to consider the other
    grounds advanced by the appellants before this court.

[84]

The obligation
    of this court is to sentence the appellants
de novo
 the task to
    which I now turn.

F.

WHAT IS A FIT SENTENCE FOR EACH APPELLANT
?

[85]

Two issues need
    to be determined. The first is whether youth sentences should be imposed, which
    requires the court to decide whether the Crown has overcome the Presumption and
    has demonstrated that adult sentences are warranted to hold the appellants
    sufficiently accountable for their criminal actions. The second is the effect
    of the approximately 2.5 years the appellants have served of their adult
    sentences on this courts jurisdiction to impose maximum youth sentences.

[86]

Because the
    impact of the time the appellants have spent serving their adult sentences
    factors into my analysis of the sentences to be imposed, I will deal with the
    second issue first.

(1)

The Impact of
    the Time the Appellants have Spent Serving their Adult Sentences

[87]

TF and MW request
    that the adult sentences the youth court judge imposed be set aside and that
    this court impose maximum youth sentences of 10 years to commence when this
    decision is released. The end result would be that they will serve maximum
    youth sentences on top of the time already served of the adult sentences they
    received after trial. For the following reasons, I am of the view that this
    court is in a position to accede to this request.

[88]

First, nothing
    in s. 687(1) of the
Criminal Code
restricts the courts ability to
    vary a sentence, provided the variation is within the limits prescribed by
    law. As noted by the Supreme Court in
Lacasse
at para. 38, the power
    of an appellate court under s. 687(1) includes substituting a sentence for the
    one imposed by the trial judge. The scope of the power of an appellate court to
    vary a sentence is limited to the maximum prescribed penalty for the offence of
    which the accused has been convicted, irrespective of the sentence imposed by
    the sentencing court:
R. v. Hill
, [1977] 1 S.C.R. 827.

[89]

Second,
    exercising discretion to impose youth sentences on top of the time served of an
    adult sentence is consistent with a purposive interpretation of the
YCJA
.
Holding otherwise would have the
    effect, in certain cases, of preventing a reviewing court from substituting a
    youth sentence for an adult sentence where such a disposition was clearly
    warranted. When a reviewing court concludes that the Crown has not overcome the
    Presumption or that a youth sentence would otherwise be long enough to hold the
    young person sufficiently accountable for his or her criminal conduct, the
    court should not be precluded from imposing a youth sentence because of a
    concern that the sentence will not be of sufficient duration after having to
    deduct some or all of the time the young person spent in pre-sentence custody.
    This difficulty becomes even more acute when dealing with young persons who
    have been accepted into the IRCS program, designed to rehabilitate the young
    person through his or her participation in lengthy and intensive therapeutic
    programming.

[90]

Precedent for
    imposing a maximum youth sentence on top of time spent serving an adult
    sentence can be found in this courts decision
in
D.W
.
    In that case, the young person was found guilty of second degree murder. Although
    a youth sentence with an IRCS order had been recommended, the youth court judge
    did not impose a youth sentence because he believed he was required to discount
    the full amount of pre-sentence custody from the maximum youth sentence and was
    concerned that the young person would only spend a further 18 months in custody.

[91]

This court
    concluded that the maximum youth sentence satisfied accountability, as well as
    rehabilitation and protection of the public. The court went on to accede to the
    appellants request to be sentenced to the maximum youth sentence without
    credit for the portion of the adult sentence already served. The court ordered
    the sentence to commence upon the release of its reasons.

[92]

Similar
    considerations are engaged here and, as I will now explain, I am of the view
    that a maximum youth sentence would satisfy the relevant sentencing principles
    for both appellants.

(2)

The Preferred
    Approach

[93]

The original
    provisions of the
YCJA
placed the onus on the young person convicted
    of certain presumptive offences such as murder, to satisfy the court that a
    youth sentence would be of sufficient length to hold him or her accountable. In
D.B.
,

the Supreme Court recognized the presumption of
    diminished moral culpability as a principle of fundamental justice and held
    that because of the principle, there should be no offence for which a youth
    should be presumptively sentenced as an adult. Rather, in all circumstances,
    the Crown bears the onus of showing that the presumption of diminished moral
    culpability has been rebutted and that a youth sentence would not be sufficient
    to hold the offender accountable for his or her criminal conduct:
D.B.
,
    at para. 93.

[94]

As previously
    indicated, in 2012, the wording of the test for an adult sentence in s. 72 of
    the
YCJA
changed to incorporate the holding in
D.B
. The two
    parts of the test were left unchanged. Since
D.B.,
to sentence a youth
    as an adult, the Crown must overcome the Presumption and must satisfy the youth
    court judge that a sentence under the
YCJA
would not be sufficient to
    hold the offender accountable for his or her criminal conduct. What did change
    is that the pre-2012 test was set out in a way that allowed for a blended
    analysis of the Presumption and of accountability, whereas the new test is
    expressly structured as a two-pronged test in which the Crown must satisfy both
    prongs.

[95]

I have made a point of returning to the change in the
    legislation, with particular focus on the two separate prongs, as it provides
    the foundation for my view that the analysis of whether the Crown has overcome
    the Presumption and has satisfied the accountability test are best dealt with
    as separate inquiries. As I will explain, undertaking separate analyses of each
    prong is important. The two prongs address related but distinct questions and,
    although similar factors are applicable to both, there is not a complete
    overlap. It is not necessarily the case that every factor relevant to an
    assessment of whether a youth sentence would hold a young person accountable is
    relevant to the question of whether the Crown has rebutted the Presumption.

[96]

I start with the
    Presumption. What the Crown must demonstrate to overcome the Presumption is not
    set out in the
YCJA
.  To date, little has been said in the
    jurisprudence about this prong of the test.

[97]

In my view, the
    focus must necessarily be on the issue of maturity.  The Presumption assumes
    that all young people start from a position of lesser maturity, moral
    sophistication and capacity for independent judgment than adults.  Bala and
    Anand explain at p. 4:

Adolescents, and even more so
    children, lack a fully developed adult sense of moral judgment. Adolescents
    also lack the intellectual capacity to appreciate fully the consequences of
    their acts. In many contexts, youths will act without foresight or self‑awareness,
    and they may lack empathy for those who may be the victims of their wrongful
    acts. Youths who are apprehended and asked why they committed a crime most
    frequently respond: I dont know. This seemingly impertinent answer may
    simply reflect a lack of forethought or self-awareness, or non-responsiveness
    due to embarrassment and the shame of hindsight, or it may signal a more
    significant cognitive issue. Because of their lack of judgment and foresight,
    youths also tend to be poor criminals and, at least in comparison to adults,
    are relatively easy to apprehend. [Footnotes omitted.]

[98]

In order to rebut
    the Presumption the Crown must satisfy the court that, at the time of the
    offence, the evidence supports a finding that the young person demonstrated the
    level of maturity, moral sophistication and capacity for independent judgment
    of an adult such that an adult sentence and adult principles of sentencing
    should apply to him or her.

[99]

I now turn to
    accountability.  As to this prong of the test, both the legislation and the
    jurisprudence provide considerable assistance.

[100]

Section 38(1) of the
YCJA
emphasizes that the purpose of any
    youth sentence is to hold the young person accountable for his or her offence.
    This is to be achieved by imposing sanctions that have meaningful consequences
    for the young person, and that promote his or her rehabilitation and reintegration
    into society.

[101]

The accountability analysis necessarily involves consideration of
    proportionality and rehabilitation, with rehabilitation being subject to the
    proportionality principle. Under s. 38(1), consideration must be given to the
    sentence that has the greatest chance to rehabilitate the young person. Section
    39(3) requires consideration of the youths attitude toward rehabilitation, his
    or her history with rehabilitative programs and the availability of such
    programs.

[102]

Section 38(2) sets out additional principles that must be applied when
    determining a youth sentence. The sentence: (i) must not be greater than that
    imposed on an adult in similar circumstances; (ii) must be similar to sentences
    imposed on similar young persons in similar circumstances; (iii) must be
    proportionate to the seriousness of the offence and the degree of
    responsibility of the young person; (iv) subject to proportionality concerns,
    must be the least restrictive sentence capable of achieving accountability, the
    most likely to rehabilitate and reintegrate the young person into society, and promote
    a sense of responsibility in the young person and acknowledge the harm done to
    the victims and the community; and (v) subject to proportionality concerns, may
    serve the objectives of denunciation and specific deterrence.

[103]

In
A.O.
at para. 46, this court identified accountability in
    the
YCJA
context as the equivalent to the adult sentencing principle
    of retribution, and further, recognized the close correlation between moral culpability
    and retribution. This court noted Lamer C.J.s comments in
M.(C.A.)
,
    at para. 80:

Retribution in a criminal context, by contrast, represents an
    objective, reasoned and measured determination of an appropriate punishment
    which properly reflects the moral culpability of the offender, having regard to
    the intentional risk-taking of the offender, the consequential harm caused by
    the offender, and the normative character of the offenders conduct.
    Furthermore, unlike vengeance, retribution incorporates a principle of
    restraint; retribution requires the imposition of a just and appropriate
    punishment, and nothing more.

[104]

A central premise of the
YCJA
is that adolescents lesser
    maturity should affect the extent to which they are held accountable for
    criminal conduct:
YCJA,
s. 3(1)(b)(ii). This premise connects the
    Presumptions focus on maturity with the determination of accountability.

[105]

This link between the two tests is strengthened by the fact
    that similar factors are applied to determine whether the Crown has overcome
    the Presumption and whether a youth sentence would be sufficient to hold the
    young person accountable for his or her offending behaviour: (a) the
    seriousness and circumstances of the offence; (b) the age, maturity, character
    (including sophistication, intelligence and capacity for moral reasoning),
    background, and previous record of the young person; and (c) any other factors
    the court considers relevant:
B.L
., at paras. 36-49;
R. v. M.M
.,
    2013 NSPC 45, 331 N.S.R. (2d) 281, at para. 9, affd 2016 NSCA 16, 371
    N.S.R. (2d) 1; Sherri Davis-Barron,
Youth and Criminal Law in Canada
,
    2nd ed. (Toronto: LexisNexis Canada, 2015), at p. 447.

[106]

However, as closely connected as the two prongs  the Presumption and
    the issue of accountability  are, there is a risk associated with considering
    the Crowns application to have the young person sentenced as an adult in a
    blended analysis in which the Presumption and accountability are dealt with
    together. The risk is that a factor relevant only to one of the two prongs may
    be relied upon to support a finding in relation to the other.

[107]

By way of example, an evidence-based assessment of the efficacy of the
    IRCS program in relation to the particular young person may be a valid
    consideration in determining whether a youth sentence with an IRCS order meets
    the principle of accountability. However, the efficacy of the IRCS program is
    plainly irrelevant to whether the Crown has overcome the Presumption.

[108]

Therefore, in my view, the approach should be to analyze the two prongs
    of the test separately.

[109]

It is against the backdrop of this approach that I turn to the sentencing
    of the appellants for their participation in Tyrones murder.

(3)

The Appropriate Sentence for TF

(a)

Has the Crown Rebutted
    the Presumption?

[110]

Based on the following analysis, I conclude that the Crown is unable to
    rebut the Presumption.

[111]

Turning first to the crime itself, there is no question that TF, in
    participating in a pre-meditated murder, was involved in a serious offence that
    warrants a serious response. Such an offence affects society as a whole. 
    However, no one is more affected than the victims family. Here, the victim
    impact statements prepared by Tyrones mother and grandmother give powerful
    testament to the joy Tyrone brought to their lives and the void that has been
    left as a result of this murder.

[112]

The seriousness of the offence and the circumstances of the offender
    must be considered in determining whether the Crown has rebutted the
    Presumption.  However, the seriousness of the offence does not, in itself, lead
    to the conclusion that an adult sentence should be imposed. This is apparent
    from the fact that the
YCJA
provides for a penalty for first degree
    murder. The IRCS program under the
YCJA
is available, and indeed is
    geared toward, young people who have committed serious crimes, including first
    degree murder. Rather, what is relevant to an analysis of whether the
    Presumption has been rebutted is the level of moral judgment or sophistication
    demonstrated in the planning and implementation of the offence, and the young
    persons role in carrying out the offence.

[113]

The Crown describes how TF was engaged in a series of text messages and
    phone calls with MW and SB. The text messages revealed that TF played a role in
    informing MW, who told SB, that Tyrone was at the Neptune complex, that TF was
    instructed by SB to keep Tyrone at the Neptune complex, and that TF allowed SB to
    gain access to Tyrone when he arrived at the complex.

[114]

As to TFs participation in the crime, I note that in his reasons on
    conviction, the youth court judge found that TF was not the person who fired
    the gun and that TF did not take a leadership role, as SB was clearly the
    leader of this event:
R. v. S.B.
, 2013 ONSC 3139, [2013] O.J. No.
    2462, at para. 107. I note that the youth court judge found that the messages
    between SB and TF on the afternoon of November 17 show that SB was giving TF
    instructions regarding Tyrone, in particular, ensuring that Tyrone was kept in
    the staircase:
S.B.
, at para. 99. MW and SB were displeased with TF,
    as they felt the group was compromised by the fact that ShB was also present.

[115]

After the murder TF was engaged in conduct designed to cover up the
    crime.  The youth court judge found, at para. 15 of his reasons for sentence,
    that TF left the gun in a bag in his mothers apartment and, when she found it,
    he told her to throw it out the window. In addition, although both he and SB
    said that they would get rid of the phone he had used to send and receive
    incriminating text messages, TF did not do so:
S.B.
, at para. 65.

[116]

I now turn to TFs personal circumstances at the time of the offence.

[117]

As previously noted, TF faced more challenges than the average
    adolescent. The genesis of these challenges started at an early age with the
    separation of TFs parents, his mothers abuse at the hand of his step-father,
    TFs various disorders and his learning disability.

[118]

Recall TFs unenviable school record. Between 1997 and 2010, he attended
    three elementary and four high schools. He was suspended 15 times, usually for
    aggressive behaviour. He achieved little academic success and showed no
    positive outlook about his future. Prior to his arrest for Tyrones murder, TF
    had accumulated only 3 credits of the 30 required to obtain his high school
    diploma.

[119]

TFs early involvement in the criminal justice system could be viewed as
    demonstrative of his ignoring societys norms despite being warned by the
    courts of the consequences of his criminal behaviour. He had a youth record
    consisting of two convictions for assault, one conviction for robbery and three
    convictions for failure to comply with court orders. TF had completed the open
    supervision portion of his sentence on the robbery conviction just three days
    prior to the murder. At the time of the murder, he was on probation and subject
    to a weapons prohibition order.

[120]

However, I accept Dr. Ramshaws conclusion, one supported by the author
    of TFs PSR, that TF was a 16 year-old who resided in a community of
    disadvantaged youth, and was influenced by a peer group that condoned
    pro-criminal activities and devalued pro-social conduct. TF himself admitted
    that his peers had a negative influence on him and that he would often follow
    their lead in making poor choices.

[121]

This image of TF in 2010 stands in sharp contrast with the view we have
    of him in the provincial system, as I will now discuss.

[122]

The staff at the CFYC noted that TF was task-oriented, focused and
    highly motivated. A teacher at the CFYC wrote a letter in which he observed
    that TF had demonstrated considerable growth and had become a leader and a
    more caring person. At the Roy McMurtry School (RMS), TF was on the basketball
    team and was in the technological studies program  a program that, for
    admission, required the recommendation of the teaching staff and exemplary
    behaviour.

[123]

Significantly, in February 2013, TF graduated from high school, an
    achievement that clearly meant a lot to him. He gave a speech dedicated to his
    mother at his graduation ceremony in which he expressed gratitude for the
    opportunities he receive in custody and recognized that he had matured while in
    custody:

I matured here. My point of view changed. I am more tolerant
    and more sensitive of others feelings. There are opportunities here I feel
    like I have given back  something of value to this community and that
feels
good.

This community has helped me  provided me with education and
    helped me to learn  about myself  and about others. What I want in life. And
    what I want to
give back
in my life.

[124]

After graduation, TF continued his formal education and received credits
    in a number of additional courses. He took a business law course at Centennial
    College and two colleges accepted him into their Child and Youth Worker programs.

[125]

Finally, I note that even though TF had not expressed remorse for his
    role in Tyrones death prior to sentencing, shortly after the sentencing
    hearing, TF submitted a letter to the court in which he apologized to the
    victims family, recognized the impact of his actions, and expressed regret and
    remorse:

When I was 16 years old I made the biggest mistake in my life
    that impact[ed] many people, including the Bracken family. I would like to
    apologize to the Bracken family, his parents, his grandparents, his sister, and
    all his other loved ones. I know that Tyrones death brought a lot of sorrow to
    his family and every day I wish I could change the past. Everyday I wish I
    could forgive myself because its hard to go to sleep when you know you did
    something wrong and you cant change it.

[126]

Turning from TF himself to those around him, it is clear that various
    participants and experts in the youth criminal justice system were able to provide
    additional information about him while TF was detained in the provincial system
    awaiting trial and sentencing.

[127]

The author of TFs PSR observed that TF was well liked in the system,
    was responsive to adult mentors and councillors, was motivated to pursue
    educational opportunities and was focused on taking appropriate steps to become
    a responsible member of society.

[128]

Similarly, Dr. Ramshaw noted TFs growth while in the provincial system.
    He completed anger management programming and expressed the view that it had
    been helpful. TF appeared willing to participate in additional programming to
    consolidate his gains. Dr. Ramshaw also commented on TFs ability to
    self-reflect. When asked what he would do if he could go back in time, TF
    responded that he would not associate with the same peers.

[129]

Dr. Ramshaw did note that, while in the provincial system, TF continued
    to experience anger-related problems. He had several episodes of misconduct,
    including throwing a book at another prisoner, which resulted in an adult
    conviction for assault. Nevertheless, notwithstanding TFs ongoing struggle
    with anger management, Dr. Ramshaw concluded that in a structured environment
    and with counselling and related treatment, TFs behaviour and attitude had
    improved. In short, he was maturing.

[130]

The contrast between TF at the time of the offence and TF at the time he
    was sentenced demonstrates two things. First, his evolving maturity while in
    the provincial system highlights the lesser degree of TFs maturity in 2010
    when Tyrone was murdered. Second, TF has demonstrated that he is motivated to learn,
    is open and amenable to treatment, and is capable of developing leadership
    skills when placed in an environment with customized programming and
    well-managed support.

[131]

Taking all of the above into consideration, I am not satisfied that the
    Crown has met the burden of overcoming the presumption of diminished moral
    culpability.  Although the facts as found by the youth court judge show that TF
    played a meaningful role in forming and implementing the plan to kill Tyrone, I
    conclude that TFs participation in the crime, including his post-offence
    conduct, do not evidence a level of maturity or independent judgment and
    foresight beyond that of an adolescent.
His conduct evidences
    immaturity, impulsiveness, or other ill‑considered motivation rather than
    the insight into the wrongdoing of a more mature, reflective, or considered adult.

(b)

Would a Youth Sentence Hold TF Accountable for his Actions?

[132]

My conclusion that the Crown has not overcome the Presumption means that
    the Crowns application to impose an adult sentence must fail. However, for
    completeness, I will briefly consider the issue of accountability  whether I
    am satisfied that a youth sentence imposed in accordance with the principles
    set out in ss. 3(1)(b)(ii) and 38 of the
YCJA
, would be of sufficient
    length to hold TF accountable for his offending behaviour.

[133]

In balancing the objectives of accountability, rehabilitation, and the
    factors set out in the
YCJA
as developed by the related jurisprudence,
    I am satisfied that TF can be held sufficiently accountable for his criminal
    conduct by the imposition of a 10 year youth sentence with an IRCS order, on
    top of the 2.5 years he has spent serving his adult sentence. In coming to this
    conclusion, I have taken into account that TF has also spent 3.5 years in
    pre-sentence custody. I note that the result of such a disposition will be that
    TF will have been deprived of his liberty for in excess of 16 years for
    participating in the murder of Tyrone.

[134]

In my view, such a sentence would be responsive to the various
    directives established in the
YCJA,
including rehabilitation, and
    would be the least restrictive sentence that can be imposed taking into account
    pre-sentence custody as well as the aggravating and mitigating factors I have reviewed.

[135]

TF qualifies for the IRCS program because, as Dr. Ramshaw notes in the
    s. 34 assessment, TF has emotional disturbances involving anger and anxiety,
    and was diagnosed with conduct disorder and an unspecified anxiety disorder
    with post-traumatic symptoms. Moreover, he has been accepted into the program.

[136]

Further, TF has indicated his willingness to participate in the program.
    According to Mr. Elliott, who met with TF to assess his willingness to comply
    and cooperate with the IRCS program, TF understands the intensive nature of the
    program and knows that it demands a significant commitment to therapeutic
    programs. Mr. Elliott testified at the sentencing hearing that TF unequivocally
    agreed to comply with the IRCS program and consented to treatment.

[137]

Significantly, a youth sentence with an IRCS order means that TF will have
    the benefit of a decade of intensive treatment and counselling  the kind of
    support that he has demonstrated he responds well to. In my view, this is the
    sentence that best meets the
YCJA
sentencing objective of protecting
    the public. I say this particularly having regard to the alternative. The fresh
    evidence, admitted on consent, makes it clear that currently no programs have
    been made available to him in the adult system. Essentially, what is available
    is years in a cell followed by release under parole. On this record, it is
    clear that a youth sentence supported by the well-resourced IRCS program that
    is available to TF and to which he remains committed, is substantially better
    equipped to send TF safely back into society than an adult sentence.

[138]

In all of the circumstances, particularly in the light of TFs
    rehabilitative potential as demonstrated by the progress he made while in the
    provincial system awaiting trial and sentencing, the sentence I would impose in
    the case of TF would be a 10 year sentence with an IRCS order in which the
    first 4 years would be spent in custody.

(4)

The Appropriate
    Sentence for MW

(a)

Has the Crown Rebutted the Presumption?

[139]

I view MW as being closer to the line than TF. That said, for the
    reasons that follow, I conclude that, with respect to MW, the Crown is unable
    to rebut the Presumption. Of particular significance is the fact that MW was
    almost a full year younger than TF at the time of the murder. He turned 16 only
    a couple of weeks prior to the offence.

[140]

My analysis of a fit sentence for TF contains a summary of the relevant
    characteristics of the crime.

[141]

I therefore turn to MWs involvement in the offence. MW was not present
    when Tyrone was killed. In his reasons for sentence, the youth court judge identifies
    MWs role as primarily to connect SB with TF, who put SB in contact with
    Tyrone.  As was the case with TF, although MW relayed key information to SB and
    helped to implement the plan, MW did not have a leadership role in the murder:
S.B.
,
    para. 107.

[142]

After putting TF and SB in touch with each other, MW sent SB another
    text message asking SB to inform him what was happening so he would know
    whether to bring his gun to the Neptune complex:
S.B.
, at para. 51.
    Ultimately, MW did bring his gun with him, but, without any bullets:
S.B.
,
    at para. 55. An hour before the murder, MW sent a text asking SB to touch base
    with him if it did not proceed.

[143]

Notably, MW was not present when Tyrone was murdered. Although TF
    notified MW when Tyrone was at the Neptune complex, MW did not leave school
    until about an hour and a half later:
S.B.
, at paras. 50, 58.  By the
    time MW arrived at the Neptune complex, Tyrone had been killed:
S.B.
,
    at paras. 61, 123.

[144]

In terms of post-offence conduct, SB instructed MW not to tell anyone
    about the killing and to blame individuals from the Jungle:
S.B.
, at
    para. 62. MW accepted and promoted the latter instruction:
S.B.
, at
    para. 128. SB also instructed MW to conceal evidence by getting rid of the
    phone he used to send and receive incriminating text messages, but MW did not
    take immediate steps to get rid of his phone because, as he told SB, he wanted
    to first use up his remaining minutes. I also note that SB and MW discussed
    murdering ShB, who witnessed the murder, and his family:
S.B.
, at
    para. 129.

[145]

I now turn to MWs personal circumstances. As in the case of TF, MW had
    a difficult background. I refer to his fathers addictions and his fathers
    abuse of his mother  abuse that MW witnessed. The impact of MWs fathers
    behaviour is highlighted by his questioning, as a child, of his fathers
    refusal to be part of his life, something Dr. Ramshaws made a specific note of
    in her report.

[146]

MW began to show behavioural problems at an early age. He was diagnosed
    as having ADHD, for which he refused to take medication because of the side effects.
    As a result, at the age of nine or ten, MW turned to marijuana. MWs negative
    behaviour escalated as he got older.

[147]

MW is close with his mother and has enjoyed the support of his extended
    family. He also has demonstrated a certain degree of leadership potential in
    his community. However, in MWs s. 34 assessment, Dr. Ramshaw comments on MWs
    susceptibility to negative peer influences and notes that he belonged to the
    same group of disadvantaged youth as TF  a peer group that condoned criminal
    activities, devalued pro-social behaviours and had a culture of violence.

[148]

In her detailed report, Dr. Ramshaw assessed MW and his background and
    described him as a youth having clear problems with aggression flowing from
    anger, distrust, poor coping strategies and negative peer influence.

[149]

MWs resultant anger and related behaviour led to 19 suspensions from
    school between 2001 and 2008, and a youth record consisting of possession of a prohibited
    or restricted firearm with ammunition, and assault with a weapon for offences
    that took place just a few months prior to the murder of Tyrone. MW maintains
    he was wrongly convicted for these offences. As with TF, MW was warned by the
    courts of the consequences of criminal actions and ignored these warnings.

[150]

During a previous period of incarceration, MW attended the RMS where he
    worked toward the completion of grade 10. There, he showed a level of
    competency and commitment.

[151]

After Tyrones murder, while again in custody at the RMC, MW earned 26
    high school credits and completed his 40 hours of community service toward his
    high school diploma. In December 2013, he obtained his high school diploma and
    subsequently enrolled in a construction technology program  a program that
    only accepted students who demonstrate exemplary behaviour.

[152]

MW did have a number of behavioural incidents while at the RMC, however,
    he was generally described as friendly, polite, respectful, inclusive and
    cooperative with staff. Specifically, a teacher wrote a letter dated June 24,
    2013 noting improvements in MWs attitude, work ethic and desire to learn.

[153]

Dr. Ramshaw opined that MW posed a moderate risk of re-offending and
    noted that MW stated that jail was an incentive to not get in trouble again. Dr.
    Ramshaw concluded that MW had the capacity to do well in a treatment program
    that was structured and supportive, that he was amenable to such treatment, and
    that MW would likely develop further pro-social skills and greater resilience
    over the long-term with [a youth sentence and an IRCS order].

[154]

I am not satisfied that the Crown has provided the evidence necessary to
    overcome the burden of proving that the presumption of diminished moral
    culpability has been rebutted. At the time, MW, barely 16, faced a multitude of
    challenges. As with TF, MW played a meaningful role in the plan to kill Tyrone.
    However, in my view, the actions MW took, including his post-offence conduct,
    do not evidence a level of moral maturity or judgment beyond that of an
    adolescent. As I found in the case of TF, MWs
conduct evidences
    immaturity, impulsiveness, or other ill‑considered motivation rather than
    the insight into the wrongdoing of a more mature, reflective, or considered
    adult.

[155]

Given the Crown is unable to rebut the Presumption, the application to
    impose an adult sentence must fail.

(b)

Would a Youth Sentence Hold MW Accountable for his Actions?

[156]

As in the case of TF, finding that the Crown has not rebutted the
    Presumption disposes of the issue of whether MW should receive an adult
    sentence. However, again for completeness, I will deal with the issue of
    accountability.

[157]

A maximum youth sentence with an IRCS order means that MW will have the
    benefit of a decade of intensive treatment and counselling. This would provide
    him with the kind of support that he has responded well to. The fresh evidence
    regarding MWs current circumstances, admitted on consent, makes it clear that
    at the moment no programs are available to him in the adult facility in which
    he has been placed. On this record, it is clear that a youth sentence supported
    by the well-resourced IRCS program, which is available to MW and to which he
    remains committed, is substantially better equipped to send MW safely back into
    society than an adult sentence.

[158]

I conclude that, for the same reasons as set out above concerning TF, a
    10 year youth sentence with an IRCS order would hold MW accountable for his
    offending behaviour. Notably, as I pointed out when analyzing this issue in the
    case of TF, given the 3.5 years of pre-sentence custody and the approximate 2.5
    years MW has spent serving his adult sentence, as a result of his role in Tyrones
    murder, MW will have been deprived of his liberty for in excess of 16 years.

[159]

In my view, imposing a 10 year youth sentence with an IRCS order would
    be responsive to the various directives established in the
YCJA,
including rehabilitation, and would be the least restrictive sentence that can
    be imposed, taking into account the aggravating and mitigating factors relevant
    to MW.

[160]

The combination of the capacity for growth that MW has demonstrated
    while in custody, and the intensive treatment and counselling provided by the
    IRCS order to which he has consented, provide reasonable assurance of MWs
    rehabilitation to the point where he can be safely reintegrated into society.

[161]

In the light of the difficulties MW has had in his rehabilitative
    efforts, the sentence I would impose in the case of MW would be a 10 year
    sentence with an IRCS order in which MW would serve the first 6 years in
    custody.

G.

CONCLUSION

[162]

The crime the appellants participated in  an execution style murder 
    is as horrendous as it is inexplicable. It goes without saying that neither of
    the sentences I would impose, nor those imposed by the youth court judge, will
    replace the life taken or assuage the permanent pain that TF and MW inflicted
    upon Tyrones family and friends.

[163]

However, the
YCJA
is premised on the recognition that young
    people are constitutionally different than adults for sentencing purposes. As
    Abella J. recognized in
D.B.
, because of their age, young people have
    heightened vulnerability and a reduced capacity for moral judgment. They tend
    to act without foresight and may lack empathy for those who may be victims of
    their wrongful acts. As a result, young persons who act out of immaturity or
    impulsiveness should not be dealt with as if they were proceeding with the same
    degree of insight into their wrongdoing as adults. These characteristics
    justify a statutory emphasis on ensuring that sentencing reflects the reduced
    maturity and moral sophistication of young people  even in circumstances
    where, as here, horrific crimes have been committed.

[164]

Ultimately, sentencing decisions for youth must focus on holding youth
    accountable, protecting the public and rehabilitating the young person.

[165]

Here, the time TF and MW spent in the provincial system and the progress
    they made in response to the structure and support offered by that system
    provides a good example of how the
YCJA
s focus on rehabilitation and
    reintegration can work to the benefit of the offenders and the public.

[166]

In my view, particularly in the light of the time they have already
    spent in custody, youth sentences with IRCS orders would hold TF and MW
    accountable, protect the public and give the appellants, both of whom show
    strong rehabilitative potential, a chance, a real chance, to become responsible
    members of society.

H.

DISPOSITION

[167]

I would therefore allow the appeal and set aside both adult sentences. As previously indicated, in the case of MW, I would substitute a youth sentence of 10 years with an IRCS order, 6 years of which are to be spent in custody. And in the case of TF, I would substitute a youth sentence of 10 years with an IRCS order, 4 years of which are to be spent in custody. The youth sentences will be effective on the date of the release of these reasons.

[168]

I would ask counsel to agree upon the terms of the IRCS order. In the
    event they are unable to agree, I invite counsel to make brief written
    submissions to the panel.

Released: January 13, 2017 ("G.E.")

"Gloria Epstein J.A."

"I agree. S.E. Pepall J.A."

"I agree. K.M. van Rensburg
    J.A."





[1]
For the purposes of this case,
whenever the term youth
    sentence is used to refer to the sentence imposed on the appellants by this
    court, the term should be understood as a youth sentence that includes an IRCS
    order.



[2]

Section 34 of the
YCJA
allows for an assessment to
    enable the youth court judge to learn about the young person and better
    understand his or her circumstances so as to impose a sentence most likely to
    address his or her criminogenic needs, thereby reducing the risk of
    reoffending.



[3]
Note that in determining the length of a youth sentence that includes custody,
    a youth justice court cannot consider the fact that a young persons sentence
    may be subject to annual reviews and result in early release: s. 39(8).


