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| John L. Hill |
In a 7-2 decision, Justice Nicholas Kasirer, writing for the majority, emphasized that developmental maturity — not just the seriousness of the offence — must guide sentencing decisions. In I.M., a 17-year-old convicted of first-degree murder was wrongly given an adult sentence. The court found the sentencing judge erred by not requiring the Crown to meet the strict burden of proof to rebut I.M.’s presumed diminished culpability. I.M.’s sentence was reduced to the youth maximum: six years’ custody and four years’ supervision.
Conversely, in S.B., the court upheld an adult sentence. Though also 16 at the time of his offence, the court found the Crown had proven beyond a reasonable doubt that S.B. had the maturity, judgment and moral responsibility of an adult, justifying a life sentence with parole eligibility after 10 years. Social context and upbringing were considered, but ultimately, the court ruled S.B. showed high moral blameworthiness and little rehabilitative potential.
Dissenting Justices Suzanne Côté and Malcolm Rowe argued that the trial judges in both cases had correctly applied the law and should not have been overruled.
In examining the I.M. judgment, I had to revisit the case of David Bagshaw. Bagshaw was just a few days shy of his 18th birthday when Melissa Todorovic coerced him into killing 14-year-old Stefanie Rengel. Bagshaw had been diagnosed with ADHD and had been prescribed Ritalin since the age of three. He grew up in a troubled family environment. His parents separated when he was 14, and he spent time alternately with his mother, his father and for several months in a group home. Bagshaw was described as “not much of a scholar,” and he performed poorly in school. He was easily manipulated. Following Todorovic’s instructions to kill Rengel has been described as a “puppet and puppet master” situation. Even though Bagshaw was not yet 18 at the time of the murder, one might wonder if, had the I.M. decision been made, the Crown would have been able to prove that he possessed the developmental maturity necessary to justify a life sentence.
Bagshaw’s case revealed further injustices faced by young offenders. After his conviction, he served time until he turned 21 at Ontario’s maximum-security Sprucedale Youth Centre. Once he reached 21, he was transferred to the maximum-security Millhaven Institution, a federal penitentiary. The rules during the Harper era required that all individuals serving sentences for murder spend at least two years in a maximum-security penitentiary. Correctional Service Canada did not count the years he had previously spent in a maximum-security provincial jail. For this young man, I felt an injustice had been done.
Fortunately, our courts have been more sympathetic toward individuals who cannot be considered morally responsible due to mental illness. The Ontario Court of Appeal has reaffirmed that mental illness can diminish moral blameworthiness when it significantly contributes to the offence (R. v. Perry, 2025 ONCA 241; R. v. Batisse, 2009 ONCA 114; R. v. Ellis, 2013 ONCA 739). Shouldn’t a lack of developmental maturity be regarded in a similar way?
The I.M. and S.B. decisions reaffirm that rehabilitation remains the cornerstone of youth sentencing and that adult sentences should only be imposed in exceptional cases, aligning with constitutional protections under s. 7 of the Charter.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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