R. v. Habib, 2024 ONCA 830
[30] The courts respect the need to hold young adults accountable for serious crimes that, like the ones the appellant committed, involve significant personal violence. The courts must denounce the actions of young adults who commit these offences and impose sentences that, to the extent possible, adequately deter them from reoffending. General deterrence also gains importance.[2] Due to these offences’ gravity and public safety risks, significant prison terms may be necessary. It is not always possible to avoid incarceration, impose only a very short prison term, or select a sentence at the low end of the range.[3] See R. v. Jackson (2002), 2002 CanLII 41524 (ON CA), 58 O.R. (3d) 593 (C.A.), at para. 60; R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 37; and R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at paras. 4-5 and 9. These principles may help prevent older, more sophisticated perpetrators and organized criminal groups from preying on and recruiting young adults to commit violent crimes on the theory that those young adults will not be imprisoned if apprehended. See R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403, at para. 65; R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 147.
[31] Sentencing judges must also respect several other settled principles when sentencing youthful offenders for their first criminal offence. First, they must practice restraint. This requires them to avoid imprisoning young adults when possible. When imprisonment is necessary, it also requires them to make the sentence as short as possible to achieve the principles and objectives of sentencing. See Priest, at pp. 544-546. Second, they must prioritize rehabilitation as the paramount sentencing objective. Where necessary, they must also prioritize specific deterrence. See Brown, at paras. 5 and 10. Third, they cannot focus exclusively on denunciation and general deterrence or elevate those objectives above rehabilitation and specific deterrence. See Borde, at para. 36; Brown, at para. 7. Fourth, they must consider young adults’ reduced moral culpability and the harsher impact that incarceration causes them due to their stage of life. See R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at paras. 161 and 165; R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at paras. 132 and 152.
[32] Sentencing judges must always give serious and sufficient consideration to all these principles. Merely referring to them as relevant is not always sufficient to show their proper application. Failing to apply or unreasonably underemphasizing them is an error in principle. See Ijam, at para. 52; R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1, at para. 81.
[33] The courts have long followed these principles because they protect society, which Parliament has made the fundamental purpose of sentencing. Because young adults are still maturing, they have “high rehabilitative prospects.” See Bertrand Marchand, at para. 152. Often, the shock of arrest and conviction is a turning point that leads them to reflect on their actions, avoid crime, and choose a pro-social path. Prioritizing rehabilitation thus helps protect society by preventing reoffending. See R. v. Swann, [1975] O.J. No. 137 (C.A.), at para. 4; R. v. Dunkley, [1976] O.J. No. 1663 (C.A.), at para. 4; and R. v. Demeter and Whitmore (1976), 1976 CanLII 1413 (ON CA), 32 C.C.C. (2d) 379 (Ont. C.A.), at pp. 381-382.
[34] In contrast, crushing sentences can endanger society by “harden[ing]” young defendants into an anti-social path. See R. v. Desir, 2021 ONCA 486, at paras. 32 and 47; see also Dunkley, at para. 4. Unfortunately, despite the best efforts of correctional authorities, prisons sometimes struggle to rehabilitate young adults. See Hills, at para. 165. Instead, they can become a “finishing school” for crime because they may contain bad influences to which impressionable young adults are vulnerable, such as drugs, gangs, bullying, violence, and negative peers and mentors who share anti-social values and criminal experience. See R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 16; see also Hills, at para. 165; and R. v. Wismayer (1997), 1997 CanLII 3294 (ON CA), 33 O.R. (3d) 225 (C.A.), at pp. 242-243.
[35] These principles also respect Parliament’s direction to impose proportionate sentences. As Hamilton held, at para. 91, proportionality requires courts to consider factors that “decrease the offender’s personal responsibility.” For young adults, immaturity is one such factor. While as adults they are morally responsible for their actions, “[f]ull maturity and all the attributes of adulthood are not magically conferred on young [adults] on their 18th birthdays.” See R. v. Clarke, [2018] EWCA Crim 185, [2018] 1 Cr. App. R. (S.) 52, at para. 5. Instead, young adults are more impulsive, emotionally volatile, and susceptible to negative influences and bad judgment. This can make them less blameworthy than more mature adults. See R. v. Scott, 2015 ABCA 99, 28 Alta. L.R. (6th) 78, at para. 13; Fournier c. R., 2012 QCCA 1330, at paras. 42-45. By accounting for immaturity, courts ensure that turning 18 “does not present a cliff edge for … sentencing.” See Clarke, at para. 5; see also Bertrand Marchand, at para. 132; R. v. Leask (1996), 1996 CanLII 17936 (MB CA), 113 Man. R. (2d) 265 (C.A.), at para. 3.
[36] Proportionality also requires considering the greater impact of incarceration on young adults. See Hills, at para. 135. Incarceration disrupts a transitional stage where they should be “developing … job prospects and relationships that provide the base for a productive life” and learning pro-social skills and values from positive mentors and peers. See R. v. Hutchings, 2012 NLCA 2, 316 Nfld. &. P.E.I.R. 211, at para. 107. Each year is felt more keenly during this critical period of transition. See R. v. Lai, 2006 BCCA 368, 229 B.C.A.C. 236, at para. 104.
[37] This brings me to the sentencing judge’s decision. He had a challenging task. He had to emphasize denunciation and, to a lesser extent, general deterrence because the offences at issue were very serious crimes involving threats that endangered public safety. But he also had to apply the other sentencing principles, especially the need to practice restraint, prioritize rehabilitation, and account for the mitigating effect of the appellant’s immaturity. While these principles apply whenever courts sentence young defendants for their first criminal offence, the need to apply them here was pronounced because the appellant had successfully rehabilitated himself at the time of sentencing. This increased the importance of protecting society by cementing the appellant’s positive trajectory. It required the sentencing judge to mitigate the risk that imprisonment could reverse that trajectory by re-exposing him, at an impressionable stage, to the same bad influences that contributed to his dangerous behaviour.
[38] In my respectful view, the sentencing judge erred in his approach to this challenging task. He rightly emphasized denunciation and, to a lesser extent, general deterrence. But he appears to have gone further and assumed that these goals eclipsed and rendered “secondary” the other governing principles. This was an error. As held in Thurairajah, at para. 41, those other principles “remain important” even for violent first offences.[4] Applying that reasoning, Brown confirmed that rehabilitation and individual deterrence “remain[]” the primary and paramount objectives for violent first criminal offences. Courts cannot subordinate them to denunciation and general deterrence and “still ha[ve] to impose the shortest term of imprisonment that [is] proportionate.” See Brown, at paras. 4-5, 7 and 10. This court and the Supreme Court have confirmed that these principles from Brown continue to govern. See R. v. Laine, 2015 ONCA 519, 338 O.A.C. 264, at paras. 84-87; Faroughi, at para. 119; Hills, at para. 165; and Bertrand Marchand, at para. 152.
[39] This error led the sentencing judge to overlook some of the settled principles that govern sentencing youthful first-time adult offenders. First, he did not address the need to incarcerate the appellant for as little time as possible to achieve the governing sentencing principles and objectives. Second, he did not treat rehabilitation as a primary and paramount factor. Instead, he treated it as a “secondary” factor and gave general deterrence and denunciation “precedence” over it. Third, by emphasizing specific deterrence, he overlooked that this objective is only a priority “where necessary.” See Thurairajah, at para. 41. His findings concerning the appellant’s successful rehabilitation showed that it was largely unnecessary, as in R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578, at para. 30. Fourth, he overlooked the effect of the appellant’s immaturity, including the impulsive nature of the crime and the appellant’s susceptibility to negative influences, on his culpability. While these factors do not excuse his actions, they are still mitigating. Finally, the sentencing judge did not consider that incarceration would have a harsher impact on the appellant due to his youth because it would interrupt his education and career trajectory.
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