Here's how the Youth Criminal Justice Act is used in historical cases

June 24, 2023 marked a day of relief for the family and friends of Misha Pavelick, as charges were finally laid in connection to the 19-year-old Regina teen’s death – 17 years after it happened.

Saskatchewan RCMP arrested a 34-year-old man in Regina and charged him with second-degree murder in connection to Pavelick’s death on May 21, 2006.

The accused was 17-years-old at the time.

Due to his age at the time of the alleged offence, the man is being tried as a youth and is protected under the provisions of the Youth Criminal Justice Act (YJCA).

Provisions that include a publication ban and the protection of his identity.

Hilary Peterson is a practicing lawyer, member of the Law Society of Saskatchewan and a lecturer at USask’s College of Law.

She says there’s a clear need and reason for the provisions and protections of the YCJA.

“It's a principle of fundamental justice. [There’s] a presumption that they have a diminished moral blameworthiness and I'm sure we can all conclude why that is,” Peterson said.

“They are vulnerable, they are maturing, they are developing, and therefore we do give leniency to young people. Also, we hope that young people will be able to progress and become successful adults and we don't want them to be hindered by what they've done as a non-developed, young person.”

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Peterson admits that cases like the Pavelick situation are rare, due to the time that’s elapsed since the alleged crime.

“Generally if someone is going to be charged as a youth when they're an adult, it's usually within the first few years,” she said.

“It would be rare that we see people charged this late after. It happens, historical offenses, where people committed them as a young person they are tried and people are found guilty and sometimes are sentenced as adults as well.”

According to Peterson, the decision to pursue an adult punishment would be made during sentencing if the accused is found guilty.

“The Crown has to refute the presumption of diminished moral blameworthiness. If they do that, then the Crown has to satisfy that a youth sentence would not hold that person accountable,” she said.

Many factors go into the process of deciding if an adult sentence is warranted.

“Many years have passed and we can't infer based on what the person is like today what they were like at 17. We can't do that. But we can look at the context of the offense,” Peterson said.

“When that person was 17 did they demonstrate a level of maturity? Of moral sophistication? Of capacity for independent judgment of an adult?”

Other factors that come into play when arguing for an adult sentence are previous offences, the motivation for the alleged crime and if the youth was living with an adult at the time.

Many of the details taken into account are discovered through psychological examinations after the accused is found guilty or has entered a guilty plea.

“So what we'll be looking at is the context of the offense and the behavior around the offense,” Peterson said.

“Did they have sophistication? Was it planned? Did they try to cover it up? What was their conduct like after the offense?”

“Those will be things that will be considered,” she added.

The elements for a second-degree murder charge is that somebody has done something dangerous and that dangerous act caused someone to die.

“And they should have been able to have foresight they knew or they ought to know that this person could have been killed during this dangerous act,” Peterson explained.

“Whereas first-degree murder – that's planned and deliberate.”

The difference in penalties for a youth and an adult sentence for second-degree murder is also quite considerable.

A second-degree murder charge for youth has a maximum sentence of seven years total. Four of those years would be spent in custody, with the remaining three being under community supervision.

As for an adult, second-degree murder carries the penalty of a life sentence.

“How long you actually spend in prison? That would be determined through the sentencing and by the sentencing judge. But a second-degree murder conviction does come with imprisonment for life. So you are monitored by Correctional Service Canada for the rest of your life.”

Regardless of whether it is a youth or adult sentence – if the accused is found guilty – he will serve it in an adult facility.

Concerning the publication ban – if the accused is found guilty and receives an adult sentence, the presumption is that the ban on not identifying the accused will be lifted according to Section 110 of the YCJA.

As for how the trial will continue, Peterson can’t know for sure – but stressed that the Crown’s work is made more difficult due to the years that have passed by since Pavelick’s death.

“It's going to rely on the evidence that the RCMP is able to collect and then also is the Crown going to be able to show that this is reliable evidence,” she said.

“We're dealing with something that happened 17 years ago, and the Crown will still have that burden, which is fundamental to our justice system, which is that the Crown prove beyond a reasonable doubt that this person committed the crime that they're alleged to have committed.”

The accused made his second appearance in provincial youth court in Regina on Monday, July 17.