The top court's decision sets a new sentencing standard for youth in Canada.Amber Bracken/Reuters
The 14-year-old charged in the fatal stabbing of a senior in a Toronto parking lot will serve, at most, four years in prison if convicted of second-degree murder. Four years – roughly the time it takes to finish a degree, or renew a mortgage term – a blink of time compared to the 71 years that the accused allegedly extinguished because Shahnaz Pestonji would not give up her car keys. Ms. Pestonji was stabbed and killed in an unprovoked attack in broad daylight when she was loading groceries into her car last week. The accused allegedly fled the scene, and later, appeared to go live on his Instagram feed, where he discussed the incident and also danced around to rap, flashing an apparent firearm.
Less than two months ago, another 14-year-old boy allegedly stabbed and killed another elderly woman in an unprovoked daylight attack – in that case, outside of her home in Pickering, Ont. The accused in that case was charged with first-degree murder, and thus faces a maximum of six years in prison under the Youth Criminal Justice Act (YCJA). If convicted, both teenagers will be out before they’re old enough to rent a car.
There is – or was – a chance that either of the teens accused in these murders might have been sentenced as an adult if found guilty, in which case they would have been sentenced to life in prison with no chance of parole for 10 to 25 years, depending on the charge. But coincidentally, the same day Toronto police identified the accused in the parking lot attack in an effort to locate him, the Supreme Court of Canada handed down a decision that makes it exceedingly more difficult to sentence a youth as an adult in Canada.
Supreme Court of Canada tightens rules on sentencing youth offenders as adults
The case, R v. I.M., involved a 17-year-old who planned and participated in a robbery where the victim was beaten and stabbed to death outside of his home. The accused was convicted of first degree murder, and the trial judge sentenced him as an adult, concluding that he was “satisfied,” based on a balance of probabilities, that the defendant had the maturity of an adult. According to the YCJA, youth are presumed to be of “diminished moral blameworthiness or culpability,” unless it can be rebutted by the Crown – which it was in this case. If that standard is met, and if a youth sentence “would not be of sufficient length to hold the young person accountable for his or her offending behaviour,” an adult sentence can be handed down.
An appeal court upheld the trial judge’s decision, but in its recent decision, the Supreme Court reversed it, imposing a youth sentence on “I.M.” instead.
Writing for the majority, Justice Nicholas Kasirer wrote that satisfaction based on a balance of probabilities is an insufficient standard for rebutting the presumption of diminished moral blameworthiness. Instead, it must be demonstrated “beyond a reasonable doubt” that the youth being sentenced has the maturity of an adult. Justice Kasirer deemed it a Charter issue, calling it “a matter of fundamental justice.”
This new standard of adult maturity “beyond a reasonable doubt” is one that ignores both the legislative intent of the YCJA, as well as years of legal precedent. As Justices Suzanne Côté and Malcom Rowe note in their dissent, Parliament imposed a standard of “satisfaction” when the legislation was first drafted, and various attempts to amend it to include “satisfaction beyond a reasonable doubt” were defeated. “The majority fails to pay sufficient deference to what is clear legislative intent,” they wrote.
Moreover, they note that a finding of diminished moral blameworthiness “is not equipped to be laid neatly on a scale of probabilities as it does not lend itself to classic burdens of proof.” In other words, because there is not an objective, empirical way to measure adult maturity, a judge necessarily has to undertake a process of weighing available evidence to the point of satisfaction.
The majority of the court, however, deemed such practical limitations of little concern. It has set a new sentencing standard, and that standard makes it exceedingly more difficult for any youth in Canada to be sentenced as an adult. It’s likely not relevant to the case of the 14-year-old charged with murder in the death of Ms. Pestonji, since his alleged actions before and after the stabbing – including streaming live on Instagram – point to a level of childishness that would make it hard to convince a judge to sentence him as an adult, even by the lower standard of “satisfaction.” But not all alleged youth killers are, frankly, so plainly impulsive and immature. And yet, it’s likely that nearly all of those convicted will spend no more than four or six years in prison.