Her Majesty the Queen v. M.W. et al.

[Indexed as: R. v. W. (M.)]

Ontario Reports

Court of Appeal for Ontario

G.J. Epstein, Pepall and van Rensburg JJ.A.

January 13, 2017

134 O.R. (3d) 1 | 2017 ONCA 22

Case Summary

Criminal law — Young offenders — Sentencing

Two youths convicted of first degree murder of another youth. Youths being 16 years old at time of offence. Youths did not cause the death themselves but were significantly involved in creating and implementing plan to kill victim and post-offence conduct. Youths seeking ten-year sentence of intensive rehabilitative custody supervision order ("IRCS"). Youth court judge allowing Crown's application to have youths sentenced as adults and youths sentenced to life imprisonment with no parole for ten years. Youths' sentence appeal allowed.

Youth court judge erring in concluding that IRCS order would not meet youths' rehabilitation needs. Youth court judge erred in holding that youth system lacked sufficient provisions for enforcement of IRCS orders, and that youth sentence had to be reduced by credit for pre-sentence custody.

Presumption of diminished moral blameworthiness for youths focuses on assessment of maturity, moral sophistication and capacity for independent judgment of an adult. Crown not overcoming presumption of diminished moral blameworthiness for either youth. Had Crown overcome presumption would still have borne onus of showing that youth sentence being inadequate to hold youths accountable.

Court concluding that when deciding whether youth sentence adequate, permissible to impose maximum youth sentence in addition to pre-sentence custody and time spent serving adult custody. Adult sentences set aside and youth sentence of ten-year IRCS order made to commence when appellate judgment released.

Facts

The appellants, M.W. and T.F., were convicted of first degree murder in the execution-style killing of another youth. All three were 16 years old at the time of the murder. The Crown applied to have the appellants sentenced as adults. The defence sought a ten-year sentence within the intensive rehabilitative custody supervision ("IRCS") program.

The youth court judge found that there were 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 program's lack of enforcement mechanisms; and

(c) the limited duration of the order, particularly in light of his conclusion that he was required to give actual credit for pre-sentence custody.

He speculated that although the youths had indicated that they would participate in the IRCS program, they might change their minds after the sentence was imposed. He found that the youth sentencing regime had inadequate enforcement mechanisms should youths stop co-operating with order. He also noted that there were no "guarantees" that the youths would be fully rehabilitated at the conclusion of the IRCS order, which he contrasted to the lifetime supervision from the Parole Board which would follow the imposition of an adult murder sentence of life imprisonment.

He concluded that those problems rendered a youth sentence ineffective in accomplishing the relevant principles of sentencing. He allowed the Crown's application and sentenced the appellants to life imprisonment without eligibility for parole for ten years. The appellants appealed their convictions and their sentence. The sentence appeal was heard in advance of the conviction appeal.

Decision

Held: The appeal should be allowed.

The youth court judge erred in concluding that the problems he identified with the IRCS program rendered a youth sentence ineffective in accomplishing the relevant principles of sentencing. There was nothing in the record to support his concern that the youths might be transferred to an adult facility, resulting in funding being cut off for the IRCS order. His concern that the youths might fail to co-operate with the IRCS was contrary to the evidence that they had consented to the order and indicated their willingness to comply with its terms. The evidence showed that they had responded well to programming while in youth custody. He failed to take into account the fact that the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA") provides for significant legal consequences in the event of non-compliance as well as strong incentives to comply. There was no evidence to support his 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. He erred in assuming that he was required to give a credit for pre-trial custody which impacted his assessment of the adequacy of a youth court sentence. Finally, although it was fair to say, as the youth court judge did, that the IRCS program could not offer a "guarantee" that the appellant would be completely rehabilitated, that was not a basis for discounting the program.

While the appellants were sentenced before the YCJA was amended to expressly include the presumption of diminished moral culpability, the youths were nevertheless constitutionally entitled to that presumption. The analysis of whether the Crown had overcome the presumption and whether it had satisfied the accountability test were best dealt with as separate inquiries. In order to rebut the presumption, the Crown had to satisfy the court that, at the time of the offence, the evidence supported 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. Despite the evidence of the youths' role in planning and facilitating the murder and their efforts to cover up the crime, the youths' actions reflected the lack of maturity and impulsivity of adolescents, not the maturity of an adult offender. The Crown was unable to rebut the presumption in the appellants' case.

Both youth had records as youthful offenders and had failed to comply with court orders. They were from disadvantaged areas in which their peers were pro-criminal influences. Since being incarcerated, both youths had attended school and T.F. had graduated from high school. Psychiatric evidence indicated that T.F. was at high risk for future aggression without treatment. While in youth custody, T.F. had become a role model for other youth, was open to learning and had expressed remorse for his actions. M.W. had given information to the killer so the murderous plan could be carried out. He discussed murdering a witness and the witness' family with the killer. He had not been a model inmate but had completed courses towards his high school diploma. M.W. was particularly susceptible to negative peer influences, which he was surrounded by prior to the offence. The psychiatrist concluded, despite his anger, distrust of others and poor coping skills, he had the capacity to do well with appropriately structured treatment.

T.F. and M.W. had spent 3.5 years in pre-sentence custody and 2.5 years serving their adult sentence prior to the appeal. Particularly in light of the time they had already spent in custody, youth sentences with IRCS orders would hold the appellants accountable, protect the public and give the appellants, both of whom had strong rehabilitative potential, a real chance to become responsible members of society. The adult sentences were set aside and youth sentences of ten years with an IRCS order, on top of the time already served on the adult sentences, were substituted. When the time in pre-sentence custody and in adult custody is considered, the youths will have been deprived of their liberty for 16 years. Given M.W.'s difficulties with his rehabilitation, he is ordered to spend the first six years of the IRCS order in custody. T.F. will spend the first four years of his order in custody.

Reasons for Judgment

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. S.B. fired the gun. Two friends of the deceased -- T.F. and Sh.B. -- were present during the killing. Shortly after the shooting, M.W. arrived at the scene.

[2] S.B., Sh.B. and the appellants -- T.F. and M.W. -- were charged with first degree murder. Although S.B. pulled the trigger, the appellants were found to have participated in developing and implementing a plan to kill Tyrone. Sh.B. was acquitted. The other three -- S.B., T.F. and M.W. -- 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 ten-year sentence within the intensive rehabilitative custody supervision ("IRCS") program. The youth court judge allowed the Crown's application. The appellants were given life sentences with ten years' parole ineligibility, pursuant to s. 745.1(b) of the Criminal Code, R.S.C. 1985, c. C-46.

[5] The appellants have appealed their convictions and the sentences imposed. On September 23, 2015, this court ordered that this combined sentence appeal proceed in advance of the combined conviction appeal.

[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 co-operate 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 judge's 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 judge's 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. 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 T.F. and M.W. under the provisions of the YCJA with an IRCS order, as detailed below.

B. Sentencing Framework

(1) Sentencing young people convicted of first degree murder under the YCJA

[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.

[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 ten years, comprised of a committal to custody that cannot exceed six 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 ten 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 and Sanjeev Anand, Youth Criminal Justice Law, 3rd ed. (Toronto: Irwin Law, 2012), at pp. 688-89; R. v. H. (A.), [2006] S.J. No. 582, 2006 SKQB 413. In H. (A.), 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 services". 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 T.F. and M.W. were 16 at the time of the offence, they would be eligible for parole after serving ten 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. B. (D.) (2008), 92 O.R. (3d) 399, [2008] 2 S.C.R. 3, [2008] S.C.J. No. 25, 2008 SCC 25: see Safe Streets and Communities Act, S.C. 2012, c. 1, s. 183(1).

[21] The current formulation of the framework reads as follows:

72(1) The youth justice 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 judge's 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 B. (D.), 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: B. (D.), at paras. 45, 93; R. v. Joseph, [2016] O.J. No. 2450, 2016 ONSC 3061 (S.C.J.), at paras. 48-52; R. v. S. (C.), [2014] O.J. No. 4206, 2014 ONSC 4362 (S.C.J.), at paras. 9-10; R. v. L. (B.), [2013] M.J. No. 119, 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 Judge's 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 at para. 8 the view that if a youth sentence "would have sufficient length to hold the young person accountable for his or her offending behavior", 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. T.F. was Tyrone's friend. T.F. used this friendship to get Tyrone into the stairwell in the apartment building where Tyrone lived and where the shooting took place. T.F. also alerted M.W., who alerted S.B., to the fact that Tyrone was at the complex on Neptune Drive. T.F. also arranged for S.B.'s entry into the apartment building.

[26] M.W. was the conduit between S.B. and T.F. Although M.W. did not arrive at the scene until after Tyrone died, M.W. relayed key information from T.F. to S.B., and ensured that T.F. and S.B. were in contact so that they could connect when S.B. 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 T.F. hid the firearm in his apartment and got his mother to dispose of it. The youth court judge also found that M.W. deflected the blame for Tyrone's murder to others and engaged in discussions with S.B. about the need to kill Sh.B., and possibly Sh.B.'s 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) T.F.

[28] T.F. was almost 17 years old when the murder took place. T.F.'s parents separated when he was three years old. T.F. has had little contact with his father. A step-father came into the picture -- a man who abused T.F.'s mother.

[29] T.F. 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 T.F.'s criminal record -- two convictions for assault, one for robbery and three for failing to comply with court orders. T.F. 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, T.F. was on probation and was subject to a weapons prohibition order. The youth court judge also commented on the fact that T.F. 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 T.F.'s pre-sentence report ("PSR"). The author of the report indicated the improvement in T.F.'s conduct after he was detained on the murder charge. Significantly, T.F. 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 T.F. was noticeably more mature when he eventually returned to the Roy McMurtry Centre ("RMC"). At RMC, T.F. 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. He noted Dr. Ramshaw's view that T.F. 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. Ramshaw's opinion was that T.F. was at high risk for future aggression. However, Dr. Ramshaw had also indicated that with structure, counselling and direct supervision, T.F. 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 T.F.'s 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 T.F. had accepted responsibility for his actions in relation to the murder or felt any remorse and, as such, these mitigating factors were absent.

(b) M.W.

[34] The youth court judge observed that M.W. had just turned 16 at the time of the offence.

[35] As a result of M.W.'s father's abuse of M.W.'s mother, they separated when M.W. was three years old. M.W. had little contact with his father after the separation and began to show behavioural problems at the age of four or five. M.W. 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 M.W.'s anger problems were, at the time of trial, less severe than they were in the past. At about the age of nine, M.W. turned to marijuana and smoked daily by grade 6 or 7.

[36] M.W.'s 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, M.W. 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 M.W.'s PSR. It described him as mature and co-operative. While in custody, M.W. received 20 certificates for various achievements -- most significantly, having attained his high school diploma. However, M.W. 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 M.W., Dr. Ramshaw identified problems with aggression flowing from anger, lack of trust and poor coping strategies. The report also indicated M.W.'s susceptibility to negative peer influences. Dr. Ramshaw's overall assessment was that, although M.W. 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 T.F., M.W. refused to discuss the offence because he was appealing his conviction. M.W. also maintained that he was innocent. This posed a dilemma for sentencing because, although M.W. 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 M.W. 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:

The 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 T.F. and M.W. 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 program's lack of enforcement mechanisms; and (c) the limited duration of the order, particularly given the youth court judge's 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

these 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 [M.W. and T.F.], 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 T.F., he said, at paras. 59-60:

[T.F.] poses the most difficult situation because of his positive achievements while in custody. Indeed, of the three, [T.F.] appears to have made the greatest strides in changing his outlook and his attitude. He has matured and presents a much more encouraging picture in terms of in [sic] his dealings with others. At the same time, however, serious concerns remain regarding [T.F.]'s issues surrounding anger management. He has made some progress in this regard but it appears to be largely the result of the structured setting that he has been in. Of course, the longer the structured setting remains, the greater potential there is for the progress to continue and for it to become ingrained.

In addition, I continue to be troubled by the fact that [T.F.] used his position as a friend of Tyrone to lure him into the stairwell where he could be killed. Not only does such conduct represent a most fundamental breach of trust, there is no evidence that [T.F.] has any real regret for his actions. Further, as is the case with the others, there is no explanation for [T.F.]'s role in this event. This is more troublesome, though, in [T.F.]'s case given his relationship with Tyrone and his family. In particular, there is no explanation why [T.F.] chose to sacrifice Tyrone in the way that he did given his relationship, not only with Tyrone, but with Tyrone's mother and with his sister. [T.F.]'s conduct raises a serious issue regarding his attitude towards others, one that is very troubling for his future interaction with any person with whom he might come into conflict. That concern, coupled with his ongoing anger problems, satisfies me that continuing supervision is necessary for the protection of the public. An adult sentence provides a longer period for [T.F.] to continue to demonstrate improvement while providing a greater level of supervision regarding his progress. It also provides a greater level of protection for the public.

[48] Concerning M.W., he said, at paras. 57-58:

When it comes to [M.W.], I acknowledge that there are positives in terms of his achievements since he has been in custody. However, there are also continuing issues regarding [M.W.]'s 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 [M.W.] 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 [M.W.] has engaged. Further, [M.W.]'s 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 [M.W.] accountable for his actions nor would it provide the necessary level of protection to society. I will add that, to the degree that [M.W.] 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 [M.W.] 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, [1996] S.C.J. No. 28, at para. 90; R. v. Rezaie (1996), 31 O.R. (3d) 713, [1996] O.J. No. 4468 (C.A.); R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, at paras. 11, 44; R. v. Grant, [2016] O.J. No. 4419, 2016 ONCA 639, 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 person's 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 judge's 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 respondent's 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 T.F. is now 20 years old, he is "presumptively subject to being transferred to an adult facility". The youth court judge expressed the concern that, pursuant to s. 93(2) of the YCJA, if T.F. were serving a six-year custodial sentence, "it would be open to the Provincial Director to ask to have him transferred to a Federal penitentiary". The youth court judge worried that once T.F. left the provincial system, the funding for the IRCS program would cease. The youth court judge also expressed concern that for the IRCS order to continue, T.F. would have to remain in a provincial reformatory for a much longer period of time than is normal for adults. The youth court judge found that the same concerns applied to M.W., 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 judge's 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 public's 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 person's 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 judge's 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 youth's participation and co-operation 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 judge's 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 society's interests, grant the young person early release from custody and place him or her under conditional supervision: YCJA, s. 94(19)(b). 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. 642-43:

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 youth's 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 judge's 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 T.F. and M.W. 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 there is "no ongoing supervision of a type similar to the supervision provided by the National Parole Board in the case of a person who receives a life sentence for murder. In that latter situation, the person is subject to supervision for life." The youth court judge used T.F. as an example to highlight that if credit is given for T.F.'s pre-sentence custody of three and a half years, the maximum period that T.F. would be subject to the IRCS order would be six and a half years. When T.F. is in his mid-20s, the IRCS order would end, as would all supervision over him. The youth court judge found M.W.'s situation to be similar.

[74] In my view, the youth court judge's 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 T.F.'s long-standing difficulties with anger, he exhibits pro-social values and does well in supportive environments. Similarly, although M.W. 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 T.F. and M.W. 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. Ramshaw's 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 society's interest in having an offender sentenced to meaningful consequences is also an important consideration. However, a youth's 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 judge's treatment of the pre-sentence custody is discretionary: R. v. S. (D.) (2008), 93 O.R. (3d) 211, [2008] O.J. No. 4231, 2008 ONCA 740, at para. 26; R. v. W. (D.), [2008] O.J. No. 1356, 2008 ONCA 268, 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 judge's discretion, particularly in the context of a Crown application to sentence a youth as an adult: W. (D.), at para. 3; R. v. B. (M.), [2016] O.J. No. 5365, 2016 ONCA 760. 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. P. (N.W.), [2008] M.J. No. 304, 2008 MBCA 101, 231 Man. R. (2d) 61, at para. 23; R. v. J. (R.R.), [2009] B.C.J. No. 2519, 2009 BCCA 580, at para. 60; R. v. T. (D.D.), [2010] A.J. No. 1385, 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 at para. 49 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. O. (A.) (2007), 84 O.R. (3d) 561, [2007] O.J. No. 800, 2007 ONCA 144, 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 judge's assessment of the IRCS program

[81] In my view, these errors, and their impact on the youth court judge's 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 two and a half years the appellants have served of their adult sentences on this court's 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] T.F. and M.W. request that the adult sentences the youth court judge imposed be set aside and that this court impose maximum youth sentences of ten 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 court's 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, [1975] S.C.J. No. 137.

[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 court's decision in W. (D.). 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 appellant's 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 B. (D.), 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: B. (D.), 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 B. (D.). The two parts of the test were left unchanged. Since B. (D.), 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 selfawareness, 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 don't 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.

[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 youth's 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 O. (A.), 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.C.'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 offender's 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 presumption's 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: L. (B.), at paras. 36-49; R. v. M. (M.), [2013] N.S.J. No. 305, 2013 NSPC 45, 331 N.S.R. (2d) 281, at para. 9, affd [2016] N.S.J. No. 91, 2016 NSCA 16, 371 N.S.R. (2d) 1; Sherri Davis-Barron, Youth and Criminal Law in Canada, 2nd ed. (Toronto: LexisNexis, 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 Crown's 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 Tyrone's murder.

(3) The appropriate sentence for T.F.

(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 T.F., in participating in a premeditated 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 victim's family. Here, the victim impact statements prepared by Tyrone's 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 person's role in carrying out the offence.

[113] The Crown describes how T.F. was engaged in a series of text messages and phone calls with M.W. and S.B. The text messages revealed that T.F. played a role in informing M.W., who told S.B., that Tyrone was at the Neptune complex, that T.F. was instructed by S.B. to keep Tyrone at the Neptune complex and that T.F. allowed S.B. to gain access to Tyrone when he arrived at the complex.

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

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

[116] I now turn to T.F.'s personal circumstances at the time of the offence.

[117] As previously noted, T.F. faced more challenges than the average adolescent. The genesis of these challenges started at an early age with the separation of T.F.'s parents, his mother's abuse at the hand of his step-father, T.F.'s various disorders and his learning disability.

[118] Recall T.F.'s 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 Tyrone's murder, T.F. had accumulated only three credits of the 30 required to obtain his high school diploma.

[119] T.F.'s early involvement in the criminal justice system could be viewed as demonstrative of his ignoring society's 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. T.F. 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. Ramshaw's conclusion, one supported by the author of T.F.'s PSR, that T.F. 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. T.F. 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 T.F. 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 T.F. was task-oriented, focused and highly motivated. A teacher at the CFYC wrote a letter in which he observed that T.F. had "demonstrated considerable growth" and had become a leader and a more caring person. At the Roy McMurtry School ("RMS"), T.F. 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, T.F. 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 received 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, T.F. 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 T.F. had not expressed remorse for his role in Tyrone's death prior to sentencing, shortly after the sentencing hearing, T.F. submitted a letter to the court in which he apologized to the victim's 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 Tyrone's 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 it's hard to go to sleep when you know you did something wrong and you can't change it.

[126] Turning from T.F. 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 T.F. was detained in the provincial system awaiting trial and sentencing.

[127] The author of T.F.'s PSR observed that T.F. 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 T.F.'s growth while in the provincial system. He completed anger management programming and expressed the view that it had been helpful. T.F. appeared willing to participate in additional programming to consolidate his gains. Dr. Ramshaw also commented on T.F.'s ability to self reflect. When asked what he would do if he could go back in time, T.F. responded that he would not associate with the same peers.

[129] Dr. Ramshaw did note that, while in the provincial system, T.F. 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 T.F.'s ongoing struggle with anger management, Dr. Ramshaw concluded that in a structured environment and with counselling and related treatment, T.F.'s behaviour and attitude had improved. In short, he was maturing.

[130] The contrast between T.F. at the time of the offence and T.F. at the time he was sentenced demonstrates two things. First, his evolving maturity while in the provincial system highlights the lesser degree of T.F.'s maturity in 2010 when Tyrone was murdered. Second, T.F. 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 T.F. played a meaningful role in forming and implementing the plan to kill Tyrone, I conclude that T.F.'s 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 T.F. accountable for his actions?

[132] My conclusion that the Crown has not overcome the presumption means that the Crown's 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 T.F. 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 T.F. can be held sufficiently accountable for his criminal conduct by the imposition of a ten-year youth sentence with an IRCS order, on top of the two and a half years he has spent serving his adult sentence. In coming to this conclusion, I have taken into account that T.F. has also spent three and a half years in pre-sentence custody. I note that the result of such a disposition will be that T.F. 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] T.F. qualifies for the IRCS program because, as Dr. Ramshaw notes in the s. 34 assessment, T.F. 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, T.F. has indicated his willingness to participate in the program. According to Mr. Elliott, who met with T.F. to assess his willingness to comply and co-operate with the IRCS program, T.F. 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 T.F. unequivocally agreed to comply with the IRCS program and consented to treatment.

[137] Significantly, a youth sentence with an IRCS order means that T.F. 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 T.F. and to which he remains committed, is substantially better equipped to send T.F. safely back into society than an adult sentence.

[138] In all of the circumstances, particularly in the light of T.F.'s 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 T.F. would be a ten-year sentence with an IRCS order in which the first four years would be spent in custody.

(4) The appropriate sentence for M.W.

(a) Has the Crown rebutted the presumption?

[139] I view M.W. as being closer to the line than T.F. That said, for the reasons that follow, I conclude that, with respect to M.W., the Crown is unable to rebut the presumption. Of particular significance is the fact that M.W. was almost a full year younger than T.F. 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 T.F. contains a summary of the relevant characteristics of the crime.

[141] I therefore turn to M.W.'s involvement in the offence. M.W. was not present when Tyrone was killed. In his reasons for sentence, the youth court judge identifies M.W.'s role as primarily to connect S.B. with T.F., who put S.B. in contact with Tyrone. As was the case with T.F., although M.W. relayed key information to S.B. and helped to implement the plan, M.W. did not have a leadership role in the murder: B. (S.), para. 107.

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

[143] Notably, M.W. was not present when Tyrone was murdered. Although T.F. notified M.W. when Tyrone was at the Neptune complex, M.W. did not leave school until about an hour and a half later: B. (S.), at paras. 50, 58. By the time M.W. arrived at the Neptune complex, Tyrone had been killed: B. (S.), at paras. 61, 123.

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

[145] I now turn to M.W.'s personal circumstances. As in the case of T.F., M.W. had a difficult background. I refer to his father's addictions and his father's abuse of his mother -- abuse that M.W. witnessed. The impact of M.W.'s father's behaviour is highlighted by his questioning, as a child, of his father's refusal to be part of his life, something Dr. Ramshaw's made a specific note of in her report.

[146] M.W. 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, M.W. turned to marijuana. M.W.'s negative behaviour escalated as he got older.

[147] M.W. 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 M.W.'s s. 34 assessment, Dr. Ramshaw comments on M.W.'s susceptibility to negative peer influences and notes that he belonged to the same group of disadvantaged youth as T.F. -- 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 M.W. 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] M.W.'s 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. M.W. maintains he was wrongly convicted for these offences. As with T.F., M.W. was warned by the courts of the consequences of criminal actions and ignored these warnings.

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

[151] After Tyrone's murder, while again in custody at the RMC, M.W. 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] M.W. did have a number of behavioural incidents while at the RMC; however, he was generally described as friendly, polite, respectful, inclusive and co-operative with staff. Specifically, a teacher wrote a letter dated June 24, 2013 noting improvements in M.W.'s attitude, work ethic and desire to learn.

[153] Dr. Ramshaw opined that M.W. posed a moderate risk of re-offending and noted that M.W. stated that jail was an incentive to not get in trouble again. Dr. Ramshaw concluded that M.W. had the capacity to do well in a treatment program that was structured and supportive, that he was amenable to such treatment, and that M.W. "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, M.W., barely 16, faced a multitude of challenges. As with T.F., M.W. played a meaningful role in the plan to kill Tyrone. However, in my view, the actions M.W. 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 T.F., M.W.'s 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 M.W. accountable for his actions?

[156] As in the case of T.F., finding that the Crown has not rebutted the presumption disposes of the issue of whether M.W. 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 M.W. 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 M.W.'s 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 M.W. and to which he remains committed, is substantially better equipped to send M.W. safely back into society than an adult sentence.

[158] I conclude that, for the same reasons as set out above concerning T.F., a ten-year youth sentence with an IRCS order would hold M.W. accountable for his offending behaviour. Notably, as I pointed out when analyzing this issue in the case of T.F., given the three and a half years of pre-sentence custody and the approximate two and a half years M.W. has spent serving his adult sentence, as a result of his role in Tyrone's murder, M.W. will have been deprived of his liberty for in excess of 16 years.

[159] In my view, imposing a ten-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 M.W.

[160] The combination of the capacity for growth that M.W. 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 M.W.'s rehabilitation to the point where he can be safely reintegrated into society.

[161] In the light of the difficulties M.W. has had in his rehabilitative efforts, the sentence I would impose in the case of M.W. would be a ten-year sentence with an IRCS order in which M.W. would serve the first six 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 T.F. and M.W. inflicted upon Tyrone's 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 B. (D.), 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 T.F. and M.W. 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 T.F. and M.W. 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 M.W., I would substitute a youth sentence of ten years with an IRCS order, six years of which are to be spent in custody. And in the case of T.F., I would substitute a youth sentence of ten years with an IRCS order, four 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.

Appeal allowed.