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SENTENCING - First degree murder - Particular sanctions - Young persons - Adult sentences - Test - Custody and supervision order - Sentencing considerations - Rehabilitation - Pre-sentence report - Previous record

Tuesday, February 07, 2017 @ 10:02 AM  

Appeal by two young persons, TF and MW, from adult sentences imposed for first degree murder. In 2010, SB shot and killed the victim. TF and another individual were present when the shooting occurred. MW arrived at the scene shortly thereafter. All involved were 16 years of age. SB, TF and MW were each convicted of first degree murder. TF and MW were found to have participated in developing and implementing the plan to kill the victim. On sentencing, defence counsel argued in favour of a ten-year sentence within the Intensive Rehabilitative Custody Supervision ("IRCS") program. The Crown obtained an order to have the appellants sentenced as adults. They each received adult sentences of life imprisonment without eligibility for parole for ten years. The appellants appealed their convictions and sentences. The Court directed the combined sentence appeal to proceed in advance of the conviction appeal.

HELD: Appeal allowed. The youth court judge erred in concluding that the IRCS program would not accomplish the appellants' necessary rehabilitation. In coming to that conclusion, the youth court judge relied on speculative concerns about the appellants' willingness to cooperate with IRCS orders, and other inaccurate assumptions regarding the implementation and enforcement of such orders. The judge's erroneous approach tainted the assessment of whether a youth sentence with an IRCS order for each appellant would be sufficient to address their respective emotional issues or achieve their adequate rehabilitation. The decision to sentence the appellants as adults was set aside. The Crown failed to rebut the presumption that a youth sentence would be of sufficient length to hold each appellant accountable for his offending behaviour. The rehabilitative potential of each appellant outlined in their respective psychological reports supported their participation in the IRCS program. A fit sentence was a maximum ten-year youth sentence on top of their time served to date. For TF, the first four years of the sentence were to be spent in custody. For MW, the first six years of the sentence were to be spent in custody. Sentence: For TF, ten years in IRCS with four years’ in custody; for MW, ten years in IRCS with six years’ in custody.

R. v. S.B. (appeal by M.W. and T.F.), [2017] O.J. No. 162, Ontario Court of Appeal, G.J. Epstein, S.E. Pepall and K.M. van Rensburg JJ.A., January 13, 2017. Digest No. 3637-005