Criminal - Sentencing - Adult Sentencing Under the YCJA. R. v. I.M.
In R. v. I.M. (Ont CA, 2023) the Court of Appeal considered the two-pronged test under YCJA s.64(1) to sentence a youth as an adult:
 After the jury convicted the appellant of first degree murder, the Crown brought an application under s. 64(1) of the YCJA to sentence the appellant as an adult. The trial judge allowed the Crown’s application. The appellant was sentenced to life imprisonment with a ten-year period of parole ineligibility pursuant to s. 745.1(b) of the Criminal Code.. R. v. S.B.
 The trial judge set out the basic purpose and sentencing principles under the YCJA, namely, “to hold a young person accountable through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public”: YCJA, s. 38.
 The trial judge then turned to the two-pronged test for an adult sentence under s. 72(1) of the YCJA. Section 72(1) provides that an adult sentence shall be imposed where the youth justice court is satisfied that: (a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and (b) a youth sentence would not be of sufficient length to hold the young person accountable for his or her actions.
 The trial judge noted that the onus under s. 72(1) is on the Crown. He went on to state that the standard “is neither proof beyond a reasonable doubt nor proof on a balance of probabilities” but rather “one of satisfaction after careful consideration by the court of all the relevant factors”, citing R. v. B.L., 2013 MBQB 89, 292 Man. R. (2d) 51, at para. 36 and R. v. O.(A.), 2007 ONCA 144, 84 O.R. (3d) 561, at para. 34.
 Under the first prong of the test under s. 72(1), the trial judge concluded that the Crown had rebutted the presumption of diminished moral blameworthiness. The trial judge considered the seriousness of the offence, the appellant’s principal role in the murder, the circumstances of the offence, the appellant’s close age to adulthood, his youth record, post-offence conduct and criminal antecedents. Based on this evidence, he determined that, at the time of the offence, the appellant “demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult”: R. v. W.(M.), 2017 ONCA 22, 134 O.R. (3d) 1, at para. 98, leave to appeal refused,  S.C.C.A. No. 109.
 With respect to the second prong of the test, the trial judge reluctantly concluded that a youth sentence would be insufficient to hold the appellant accountable for his actions or to ensure public safety. ...
In R. v. S.B. (Ont CA, 2023) the Court of Appeal considered sentencing as an adult under the Youth Criminal Justice Act (YCJA), and allowed an appeal (but does not vary the sentence) on grounds that the trial judge did not properly apply the "presumption of diminished moral culpability that applies to young offenders":
 At the sentencing hearing for all three youths, the Crown applied under s. 64(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”) for the young offenders to be sentenced as adults. The youth court judge allowed this application. SB, MW, and TF 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.At paras 60-68 and 69 the court finds that the presumption "of diminished moral blameworthiness" was nonetheless met.
 SB now appeals his sentence on the basis that the youth court judge: .... (3) failed to consider the presumption of diminished moral culpability that applies to young offenders (“the Presumption”) before imposing an adult sentence on SB.
 In deciding to impose an adult sentence, the youth court judge looked to the three factors listed under s. 72(1) of the YCJA, as it existed at the time of the offences: (1) the seriousness and circumstances of the offence; (2) the age, maturity, character, background, and previous record of the young person; and (3) any other factors that the court considers relevant. The youth court judge explained that a youth sentence would be imposed if it “would have sufficient length to hold the young person accountable for his or her offending behavior”. The youth court judge went on to note that the burden on the Crown “is not a heavy one”, as it simply “imposes an onus of satisfying the court, nothing more”, relying on R. v. O.(A.), 2007 ONCA 144, 218 C.C.C. (3d) 409, at para. 38.
 Having reviewed the reasons of the youth court judge, I find that he failed to consider and apply the Presumption to SB. I am aware that trial counsel agreed that the 2012 amendments to s. 72(1) of the YCJA, which expressly codified the Presumption should not apply in this case as the offence pre-dated the amendments. However, the Supreme Court of Canada in R. v. D.B., 2008 SCC 25,  2 S.C.R. 3 established that the presumption of diminished moral culpability is a principle of fundamental justice: at para. 95. As such, there should be no offence for which a youth should be presumptively sentenced as an adult: R. v. D.B., at para. 70. Rather, in all circumstances, the Crown bears the onus of showing that the Presumption has been rebutted, and that a youth sentence under the YCJA would not be sufficient to hold the offender accountable for their criminal conduct: R. v. D.B., at para. 93. As the wording of the test for an adult sentence under s. 72(1) was amended to reflect the holding in R. v. D.B., the youth court judge ought to have turned his mind to this critical youth sentencing principle.
 The youth court judge’s reasoning for sentencing SB to an adult sentence does not mention the Presumption. As this court noted in R. v. W.(M.), at para. 83, the silence on this issue is concerning. The Crown submits that the youth court judge must be presumed to know the law. More specifically, the Crown argues that embedded in the youth court judge’s assessment of SB’s maturity is the finding that the Presumption was rebutted. I do not agree. The Presumption is not merely a common law requirement for youth sentencing; it is a principle of fundamental justice. The constitutionality of the adult sentencing regime under the YCJA relies on the proper consideration and application of the Presumption to cases such as SB’s. Given the importance of this principle, it was incumbent on the youth court judge to identify and discuss the Presumption in his reasons. I cannot take his silence to mean that he did. This is an error in principle which justifies intervention by this court.
 Youth court judges must presumptively sentence persons under the age of eighteen at the time of the offence to a youth sentence. An adult sentence may only be imposed if the test under s. 72(1) of the YCJA has been met. As can be seen in the most current iteration of the test, there are two steps:
72 (1) The youth court shall order that an adult sentence be imposed if it is satisfied that In R. v. W.(M.), at para. 95, this court cautioned that each step of the s. 72(1) test must be kept separate: “The two prongs address related but distinct questions and, although similar factors are applicable to both, there is not a complete overlap.” Consequently, in determining a fit sentence for SB, I shall address each step in turn. Ultimately, I will conclude that SB should be sentenced to an adult sentence for first degree murder.
(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.