The Complex Balance of Sentencing Children- Cassandra J. Bueckert

R v F (JM) [“JMF”] was recently decided by the Manitoba Court of Queen’s Bench (“the MBQB”). The offender in this case, JMF, has already been found guilty of first-degree murder for the killing of twenty-six-year-old Tyler Kirton on January 3, 2017. At the time of the murder, JMF was three months shy of his seventeenth birthday. The trial in JMF was held to determine if JMF should be sentenced as an adult or as a youth. If sentenced as an adult, JMF faces a mandatory life sentence, though he will be eligible for parole after ten years. If sentenced as a youth, he faces a sentence of ten years, comprised of custody not exceeding six years from the date of committal, with the balance of the sentence served in the community under conditional supervision. This blog will briefly describe the events giving rise to JMF, the current state of the law, an analysis of how the law applies to the facts of this case, and a reflection on the law in relation to the principles of society.

The facts of JMF include that, on January 3, 2017, at approximately 9:50 pm, JMF shot Kirton in the street near JMF’s house. JMF fired two shots; the first hit the ground and the second hit Kirton directly. Cell phone text message evidence revealed that JMF arranged the encounter with Kirton as a fist fight with no weapons, no backup, and no calling of the police. Kirton arrived at the designated point in time, unarmed and alone. However, contrary to the communications, JMF arrived armed with a .22-calibre rifle and intentionally fatally shot Kirton. JMF then fled. Following the shooting, JMF took active measures to conceal his involvement, including:

• deleting his Facebook account;

• deleting text messages;

• instructing others to delete messages;

• telling police he disposed of his cell phone when, in fact, he had given it to his sister to keep; and,

• writing a letter to his sister while in custody directing her how to respond at trial.

Applying the Youth Criminal Justice Act

In JMF, the legal principles that applied to determining the sentencing of JMF were derived from the Youth Criminal Justice Act ( “the YCJA”) and the decision of R v McClements, in which Hamilton JA summarized that “[the] YCJA is a distinct regime dealing with offenders between ages twelve and eighteen that applies to all offences, including murder. Fundamental to the regime is the presumption of diminished moral blameworthiness for young persons, where because of their age, young persons are held to have heightened vulnerability, less maturity, and a reduced capacity for moral judgment.” Section 72(1) of the YCJA establishes a two-part test for court consideration when the Crown applies for an adult sentence to be imposed on a youth. A court, in imposing an adult sentence, must be satisfied that:

(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(b) a youth sentence imposed would not be of sufficient length to hold the young person accountable for his or her offending behaviour.”

The onus rests with the Crown to satisfy the two-prong test, under a standard of “satisfaction after careful consideration by the court of all relevant factors.”

A rebuttal of the presumption of diminished culpability

The first inquiry under section 72(1)(a) of the YCJA requires the Crown to rebut the presumption of diminished moral blameworthiness or culpability by “proving the offending young person had the moral capacity of an adult at the time of the offence, by looking at the circumstances of the offence and the young person and asking whether adult-like judgment was exercised.” After consideration of all relevant factors, the MBQB in JMF was satisfied that the Crown had rebutted the presumption of diminished moral blameworthiness or culpability, finding JMF, at the time of offence, had the moral capacity of an adult and exercised adult-like judgment. The MBQB outlined the most significant factors in reaching this conclusion as:

• the lack of spontaneity of the killing;

• JMF’s demonstration of foresight in acquiring a rifle and ammunition; and,

• JMF’s arranging of a time, a location, and for Kirton to believe there would be no weapons, backup, or police.

After the shooting, JMF made concerted efforts to conceal his involvement, disposing of his cell phone, deleting communications, and writing a letter to his sister directing her how to answer questions. JMF had a good childhood, had the love and support of family members, was not the victim of abuse or driven by addiction, had no significant cognitive or learning difficulties, was mature, and even made the conscious choice to associate with gang members and sell marijuana for profit. JMF dihave some slight cognitive impairments, including ADHD, ODD, and OCD, however, based on the evidence the court was not satisfied these impairments played a material role in the crime and the totality of the other factors outweighed these effects. Therefore, the court felt satisfied that the Crown had successfully rebutted the presumption of diminished moral blameworthiness, and the first prong of the two-prong test was satisfied.

Where the presumption is rebutted, the judge must go on to the second inquiry under section 72(1)(b) of the YCJA and ask whether a youth sentence is sufficient to hold the young person accountable. The phrase “to hold a young person accountable” equates with the adult sentencing principle of retribution. As such, a youth sentence must reflect:

• the moral culpability of the young person, taking into account their intentional risk taking;

• the consequential harm caused by the young person; and,

• the normative character of the young person’s conduct.”

Overall, a youth sentence has been found to hold a young person accountable where:

• it is long enough to reflect the seriousness of the offence and the young person’s role in it; and,

• it is long enough to provide reasonable assurance of the young person’s rehabilitation to the point where they can safely be reintegrated into society.”

• Furthermore, the judge must also keep in mind the interests of society, especially when sentencing for a violent crime. “A youth sentence must promote, not undermine, public respect for the administration of justice.”

After considering the material facts surrounding JMF’s violent offence, the MBQB was not satisfied that a youth sentence would be of sufficient length to hold JMF accountable for the killing of Kirton and therefore determined that an adult sentence was appropriate. The MBQB also stated that “[a]n adult sentence reflects the seriousness of JMF’s crime and his role in it, it will provide reasonable assurance of JMF’s rehabilitation to the point where he can safely be reintegrated back into society, while also maintaining the interests which remain important to society.” The MBQB further went on to describe the harm caused by JMF’s conduct as “tremendous, taking the life of Kirton, inflicting pain and perhaps permanent damage on Kirton’s immediate and extended family, which was made clear from the impact statements that were read into the record”. The MBQB continued, stating that “[t]he fallout from JMF’s actions is tragic and widespread, pain and damage also spills into the lives of JMF’s own family and friends”. Based on the weight of the evidence, the MBQB did not feel satisfied that “upon the completion of six years in custody and four years in the community under conditional supervision, rehabilitation would be achieved to the point where JMF can safely be reintegrated into society”.

Therefore, the MBQB in JMF determined that the most appropriate sentence for JMF was for him to “serve as an adult and continue his rehabilitation, and that if after serving ten years he meets parole eligibility, he may be released subject to conditions designed to achieve a safe and successful reintegration into society at that time.” The MBQB granted the Crown’s application for an order that JMF be sentenced as an adult.

A crucial test for a complex area of law

As illustrated, when a court determines whether to sentence a young person under the YCJA or as an adult, it will weigh and consider a magnitude of personal and circumstantial factors and considerations in making its ultimate decision, considerations which go well beyond those enumerated principles outlined within section 72(1) of the YCJA. Such considerations include the background of the young person, their family history, potential history of abuse or addictions, and any cognitive or physical impairments, and many other factors. These factors allow a court to gain a better understanding of the young person and their situation. That court will then use these considerations to get a better sense of the sentence needed to successfully rehabilitate the young person in order to achieve the best results for the offender as well as for society. That court also puts great consideration on society and how best to serve the principles of society, so much so that it would appear the justice system puts greater priority on upholding the interests of society over the careful sentencing of a young person in order to promote their rehabilitation. Ultimately, courts have a heavy burden placed upon them in relation to sentencing a young person, being required to weigh many factors and considerations and make the best possible decision based on the facts before them. The YCJA two-prong test is a beneficial tool in the tool chest and goes a long way to assist in the administration of justice in the criminal justice system.