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What if, by the stroke of a pen, a core tenet of the Youth Criminal Justice Act (YCJA), as it applies to sentencing, is unilaterally and arbitrarily reinterpreted to nullify its intent in adjudging consequences for young offenders convicted of the most heinous crimes imaginable?

That’s what the Supreme Court of Canada did in a majority opinion released on Friday. And there it will sit forevermore because there’s no avenue of appeal from the Supreme Court of Canada. Nowhere else to go. Which begs the question: Whose country is it? A parliamentary democracy of elected lawmakers or nine justices in fur-trimmed red robes?

The 7-2 majority decision, written by Justice Nicholas Kasirer, will make it far more difficult for trial judges to sentence young offenders convicted of serious crimes, such as first-degree murder, as adults. It is a rarely used mechanism, sentencing any offender younger than 18 when the crime was committed, as an adult after they’ve been tried and convicted as a youth.

However infrequent, that judicial discretion has now been severely tightened.

It all pivots on substituting the word “satisfied’’ with the term “beyond a reasonable doubt’’ in the trial judge determining if “the presumption of diminished moral blameworthiness’’ — the fundamental principle that youths don’t think like adults, don’t make mature decisions and generally shouldn’t be held to the same standard in criminal proceedings, nor punished to the same degree — has been effectively rebutted (disproven) by the prosecution, and where a youth sentence would be insufficient to hold the offender accountable.

The 106-page written decision boils down to compelling the Crown to prove beyond a reasonable doubt that a young offender doesn’t merit the presumption of diminished blame. And further than the “objective seriousness’’ of the crime shouldn’t in most instances be a factor of any consequence leading a judge to impose an adult sentence. Because, you know, horrific specifics about a crime could encourage outrage and have no evaluative bearing.

Let me tell you about the case that elicited this judgment and struck down a trial judge’s ruling that had cleared the high bar of the Ontario Court of Appeal:

I.M. was seven months shy of his 18th birthday when he and three other males (all adults) confronted S.T., a 17-year-old, as the teenager was shovelling snow outside his family’s home on Jan. 24, 2011. The culprits had gone there with the specific purpose of obtaining a handgun they believed S.T. possessed. On the day of the murder, I.M. sent a text message to a co-conspirator referring to the planned robbery as “cum.up’’ — meaning he viewed the planned crime as a stepping stone to greater criminal activity, as the trial court heard.

When the altercation began, one assailant struck S.T. on the head with a handgun. When the teen resisted, the group forced him into a narrow alleyway adjacent to the house. There he was stabbed at least 11 times, including a deep thrust to his back that punctured his lung, and another that penetrated his kidney.

A forensic pathologist found no defensive injuries on the boy’s forearms or hands, indicating he may have been restrained or unconscious already from blood loss. He couldn’t defend himself.

S.T. was left bleeding in the alleyway from his fatal wounds, dying in the arms of his father who later came upon the dreadful scene.

Meanwhile, I.M. and the others entered the house, where S.T.’s mother was twice struck in the head with a gun and forced to sit with her head between her legs while I.M. and his fellow assailants searched the residence for firearms, finding none.

A week after the attack, during which I.M. continued his efforts to procure a gun, he left the country. I.M., who was born in Bangladesh, was eventually arrested in 2013. He was tried alone under the YCJA and convicted of first-degree murder. At his trial – I.M. didn’t take the stand - a schoolmate testified that I.M. had acknowledged stabbing S.T. many times and had shown him a bag of bloody clothing which he intended to throw out. This testimony reinforced the Crown’s theory that I.M. was a principal actor in the events that caused S.T.’s death. The jury found I.M. guilty of first-degree constructive murder — an offence which directs murder in the first degree when it occurs in the course of an unlawful confinement.

The Crown successfully applied under s. 64 of the YCJA to have I.M. sentenced as an adult. The judge imposed an adult sentence of life imprisonment with no parole eligibility for 10 years.

Court heard that I.M.’s criminal activity began in his early teens. He was involved in selling drugs and burglaries by the age of 12 or 13. His first conviction came when he was 15, for break and enter and theft, followed by a drug trafficking conviction.

While in custody on the murder charge, I.M. accumulated 15 misconduct reports, including assaults, possession of contraband and property damage. While awaiting trial on the murder charge, he was charged with trafficking a controlled substance. A forensic psychiatrist would testify, after conducting a psychiatric evaluation prior to sentencing, that I.M. lacked remorse or empathy, highlighting several risk-enhancing factors.

Kasirer cautioned against placing too much emphasis on a young offender’s post-offence conduct, in fleeing the country, which can “reflect impulsive reactions driven by juvenile fear and panic, rather than adult-like calculation.’’

Everybody from the trial judge to the Court of Appeal judges “erred’’ in their consideration of the case, wrote Kasirer. See, only he – and the six other who agreed – got it right.

Applying the new framework that he’d just invented, Kasirer overturned I.M.’s adult sentence and imposed the maximum youth sentence — six years of custody from the date of committal (July 31, 2019), followed by four years of conditional supervision to be served in the community – the maximum youth sentence permitted under the YCJA. 

In the dissenting opinion, from Justices Suzanne Côté and Malcolm Rowe, the judges emphasized that the standard of “satisfaction’’ has been applied by a string of appellate courts since the YCJA was amended in 2012. Only one very recent appellate decision interpreted this provision as requiring proof beyond a reasonable doubt.

“In our view, the word ‘satisfied’ imposes a standard of satisfaction which requires a youth court sentencing judge to be satisfied that the Crown has demonstrated the young offender has displayed the level of ‘maturity, moral sophistication and capacity for independent judgment’ of an adult.”

While the majority opinion claims the parliamentary record is unclear, the dissent strongly disagreed. Years of consideration and wrangling went into writing the legislation, with the Justice and Human Rights Committee of the House of Commons meeting on 16 occasions to consider bill amendments. A proposed “explicit standard of proof’’ was deliberately omitted.

“This legislative context is both relevant and important to considering the actual Parliamentary intent, so as not to minimize or cast away the importance of the deliberate choice Parliament undertook.’’

Yet that’s exactly what Kasirer and the majority et al have done: Cast it all away.