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| John L. Hill |
He pleaded guilty to second-degree murder, but the Crown wanted him sentenced as an adult. A decision was made to impose an adult sentence once it was determined that B.J.M. had met the criteria established under s. 72 of the Youth Criminal Justice Act (YCJA). That section sets out that to sentence a youthful offender as an adult, a court must find two preconditions: (a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted and (b) a youth sentence imposed would not be of sufficient length to hold the young person accountable for their offending behaviour.
The sentencing court found that the Crown had met these preconditions and imposed a sentence of seven years (R. v. B.J.M., 2022 SKPC 38). In the Youth Court decision, the judge clarified that the onus was on the Crown to prove the preconditions. The judge must be satisfied that they have been proven. An appeal decision was recently handed down (R. v. B.J.M., 2024 SKCA 235).
A significant issue in B.J.M.’s appeal was the validity of the “satisfaction standard” in determining if the conditions set out in s. 72 had been met. When the YCJA replaced the Young
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In the R.D.F. case, the Saskatchewan Court of Appeal did not adopt the “satisfied beyond reasonable doubt” standard. It appeared that B.J.M. may have found a viable argument for appeal. After a lengthy review of the historical jurisprudence, the Court of Appeal concluded that it had not yet been determined that the “satisfaction test” had been adopted. Early cases such as R. v. O.(A), 2007 ONCA 144, rejected the notion that the Crown must prove the requirements of s. 72 beyond a reasonable doubt. Further, the Supreme Court of Canada in R. v. B. (D.), 2008 SCC 25, held that the section could cause the young person to rebut the imposition of an adult sentence. The case also stated that a young person is entitled to a presumption of diminished moral blameworthiness.
Things changed in 2012 with the passage of the Safe Streets and Communities Act, SC. 2012, c.1. Three amendments to the Act have supposedly clarified when an adult sentence should be imposed on a youthful offender. Section 3(1) of the Act now establishes a list of principles to consider. Secondly, Parliament has replaced the list of offences presumed to carry an adult sentence with a procedure where the Crown may apply for such a sentence to be imposed. Finally, s. 72 implies a condition of diminished moral blameworthiness and requires that the sentence reflects the gravity of the offence for which the youth must be held accountable.
B.J.M. was 17 when the offence was committed, so he was almost an adult chronologically. He suffered from some intellectual impairments. However, these were not necessarily determinative in assessing whether the Crown has rebutted the presumption of diminished moral culpability. A psychological assessment of B.J.M. showed his learning deficits pertained to verbal comprehension and the retention of verbal information. He required extra time to process information. But there is no suggestion that B.J.M. fired the fatal shot because he misinterpreted verbal information from any people around him or because he was having difficulty processing information. His learning difficulties played no role in his offence.
The sentencing judge’s error was that he did not expressly state that he had no reasonable doubt that the Crown had met its onus in establishing beyond reasonable doubt that the Crown had rebutted the presumption of lack of moral blameworthiness because of the offender’s youth. Although the sentencing judge’s legal analysis was faulty, imposing a seven-year sentence was appropriate. Chief Justice Robert W. Leurer dismissed the appeal, and Madam Justice Meghan McCreary concurred. Justice Brian Barrington-Foote dissented in part but concurred with the result. He would have liked to have seen the argument that the proof beyond reasonable doubt should have applied to both branches of s. 72. Defence at trial had conceded the second condition had been proven.
The 151-paragraph judgment is lengthy. The problem for the reader is that while it explores the semantical argument of the interpretation of the statute and the degree of proof required to impose it, the judgment is light on the discussion of the rehabilitative effect of a seven-year sentence. There is no discussion on the impact on a youth sentenced to murder who must serve a minimum of two years in maximum security. Any attempt at securing an override will likely fail (Bagshaw v. Canada, 2012 FC 291). The judgment will assist other bench members in writing decisions but does little to indicate how an adult sentence will enhance public safety or encourage rehabilitation.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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