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Do young people have a better chance of being rehabilitated than others simply by virtue of their age? The Manitoban Court of Appeal appears to believe that they do. When imposing sentences, regardless of the exact sentencing court, the Manitoba Court of Appeal has considered youth to be a mitigating factor purely based on the concept that youth are not finished developing, and the time left to develop increases the chances they can be successfully integrated back into society and make life changes after a criminal act. This sentencing principle is exemplified in the recent Manitoba Court of Appeal case, R. v. Antczak, 2021 MBCA 39.[1] However, the term “young” in Manitoban jurisprudence is not confined to those who are under the legal age of adulthood. This notion begs the question: what defines youth? At what age does the court consider people to be leveled with the rest of the population in terms of rehabilitative prospects? Since this sentencing principle was outlined by the Ontario Court of Appeal in 1976 and adopted into Manitoban jurisprudence in 1979, the definition has been expanding. It is unclear where this expansion will cease; however, the core idea has remained the same and is reflected both in jurisprudence and legislation. This article will show that, while the specific factors causing Manitoban courts to include youth as a mitigating factor in relation to rehabilitative prospects have changed, the underlying principle has remained constant. This article will not concern the evidentiary field concerning young offenders, but sentencing attitudes towards these offenders in impactful case law.

Facts of the Case

The accused in R. v. Antczak, who was 20 years old at the time of sentencing, regularly sold drugs to fuel his own drug addiction and had a youth record. He sold 0.81g of Fentanyl to undercover police officers and, after realizing that they were not face-value Fentanyl purchasers, attempted to flee. The officers caught him and found 14-20 bags of Fentanyl, portioned out appropriately for their sale to street-level purchasers, and a cell phone with messages in it relating to drug sales.

Decision

The accused pleaded guilty and was sentenced.[2] The Crown appealed the sentencing decision on four grounds: (1) The sentencing judge failed to appreciate the gravity of the offense; (2) the sentencing judge did not properly apply the principle of parity; (3) the sentencing judge overemphasized the rehabilitative prospects of the accused; and (4) the sentencing judge failed to apply the principle of totality. The Court of Appeal stated that the appropriate standard for review in such cases is deferential and that the Crown had not proven that the sentencing judge made an error in principle that materially affected the sentence; as a result, the Court dismissed the appeal on all accounts. The only argument relevant to this analysis is overemphasis on rehabilitative prospects. The Crown asserted that the sentencing judge inappropriately centred the rehabilitative capacity of the accused without justification. The accused’s addiction was untreated, and the accused had a criminal record. However, the Court of Appeal upheld the sentencing judge’s focus on rehabilitation as reasonable.

The History of Youth as a Mitigating Factor Relative to R. v. Antczak

Ontario

The history of this principle can be traced back to R. v. Demeter, [1976] O.J. No. 1664, a decision of the Ontario Court of Appeal. In this case, two youths aged 16 and 17 robbed a pizzeria with a pellet gun. Neither of these individuals had prior criminal records and their criminal behavior was described as “out of character.”[3] Regarding their sentence, the court stated that “In considering what is an appropriate sentence for the very young, the paramount consideration must be their immediate rehabilitation.”[4] The court also emphasized the offender’s lack of criminal record when examining this convention and ultimately allowed the appeal.

Manitoba

This decision was first adopted into Manitoban jurisprudence in 1979 in the case R. v. McCormick, 1979 CarswellMan 88, [1979] 4 W.W.R. 453, which quoted the principle directly from R v. Demeter. This case involved a 17-year-old who held up a gas station with a knife; the accused had a prior criminal record. The innate rehabilitative prospects of youth were still considered and prioritized.

The next major citation at the Manitoba Court of Appeal was in R. v. Leask, 1996] M.J. No. 586, which concerned “very young adult offenders”[5] who violently assaulted a stranger. The court again adopted the analysis in R v. Demeter as a “governing principle” when it considered the sentencing judge’s focus on rehabilitation.

The Manitoba Court of Appeal continued their progression through the case R. v. Robinson, [1993] M.J. No. 509, with the statement: “Where there is a real prospect of rehabilitating an offender, a conscious effort should be made to avoid a sentence which might be counterproductive to that end. This is particularly true where the offender is very young.”[6]

R. v. Okemow, 2017 MBCA 59 is the decision directly cited by R. v. Antczak to establish the inherent increased rehabilitative opportunity for young offenders.[7] This case was an appeal from the Youth Justice Court which imposed a blended adult and youth sentence on the accused, who was 14 years old. The accused had pleaded guilty to 14 offences, most concerning armed robberies or street muggings. The court in R. v. Okemow cited several previous decisions with the contention that “youth is generally considered a mitigating factor because young people have the greatest potential to change their ways and be rehabilitated and criminal conduct of such offenders typically bears the hallmarks of immaturity.”[8] In this, the court explicitly stated the underlying belief that the previous case law is based on, which was subsequently cited in R v. Antczak.

Overview

From this history, it is clear that the concept has been abstracted and generalized from the original analysis in R. v. Demeter. The offender in R. v. Antczak had a youth record, unlike the accused in the original case, and was older than the accused in many of the other cases. The original sentiment that “very young”[9] offenders should have the benefit of assumed rehabilitative capacity gave way to just “very young adult”[10] offenders. Additionally, the applicability of prior youth records was determined to be a separate element contributing to sentencing factors. The court in R. v. Demeter stated that “there is no reason to believe that these two youths had set upon a course of criminal activity as a pattern for their future.”[11] This doesn’t appear to be the case in R. v. Antczak where the offender had a prior criminal record and where the crime itself was the repeated and consistent sale of drugs.

Despite the different sentencing principles laid out in the Criminal Code, R.S.C. 1985, c C-46[12] and the Youth Criminal Justice Act, S.C. 2002, c. 1,[13] the court has adopted a sentencing stance that inherently perceives youth as containing greater promise for rehabilitation. The case R. v. Antczak indicates further acceptance of youth as a mitigating factor in adult sentencing instances, solidifies the underlying principle directing justices to apply youth as a mitigating factor, and carries the concept further than previous case law in its application to a 20-year-old offender who had a prior and repeated criminal record.

[1] R. v. Antczak, 2021 MBCA 39 at para 10. [2] The Appeal decision does not clarify the exact sentence, but is not relevant for this analysis. [3] R v Demeter, [1976] OJ No. 1664 at para 3. [4] Ibid at para 10. [5] R v Leask, [1996] M.J. No. 586 at para 1. [6] R v Robinson, [1993] M.J. No. 509 at para 7 [emphasis added]. [7] R v Okemow, 2017 MBCA 59. [8] Ibid at para 122. [9] Demeter, supra note 3 at para 10. [10] Leask, supra note 10 at para 1. [11] Demeter, supra note 3 at para 1. [12] Criminal Code, RSC 1985, c C-46 s 718. [13] Youth Criminal Justice Act SC 2002, c 1, s 38(1).