Arguments finish, sentencing decision for Misha Pavelick’s killer set for May

According to Crown lawyer Adam Breker, the test over whether a teen should be sentenced as an adult comes down to a test of two parts, as laid out by the Supreme Court.

Both lawyers’ arguments centred around this test on Thursday, the last day of the sentencing hearing for the man who killed Misha Pavelick in 2006.

The parts boil down to whether it can be successfully argued that the teen had the moral blameworthiness of an adult at that time – not the lower bar of a youth – and whether a youth sentence would be sufficient to hold the person accountable.

Read more:

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• ‘Beyond dangerous’: Jury hears from defence for first time in Misha Pavelick murder trial
• ‘So much blood’: Partygoers near Misha Pavelick recall the fights before he died

The bulk of Breker’s argument was geared toward showing the offender indeed had the moral capacity of an adult at the time.

Breker said the circumstances around the offence can speak to developmental age, but he argued in this case they were neutral. He said they didn’t suggest a lot of advanced planning, but also didn’t indicate pure spontaneity either.

He said there’s one benefit of it taking 20 years to get to sentencing – that there’s been 20 years to see how the offender has matured and changed.

“Here, we’re not just dealing with the drive home, we’re dealing with 18 years of conduct,” he told court.

Breker went through the offender’s criminal history around the time of Misha’s killing and after it, including after he’d turned 18, arguing that there wasn’t much change in his behaviour so it was likely a reflection of his fully formed self, instead of youthful immaturity.

Breker pointed out that even when he was arrested for not showing up to the preliminary hearing in this case, the man shoved a guard.

“His actions were not, do not, have the hallmarks of an immature youth who was waiting to develop into a fully formed person. His development was formed, and we see that because there have been no changes,” he explained.

In his arguments, Breker also pointed to positive things that were happening with the offender at the time that, he said, showed the offender had an adult capacity – things like getting his driver’s license, holding down a job and participating in sports at a high level.

While the offender may not have been a high achiever, Breker urged the court to find that he was a reasonable and functional achiever, akin to an adult, with adult-level decision-making skills and maturity.

The second part of the test – whether a youth sentence would be sufficient – Breker argued that the sentencing principles of the Youth Criminal Justice Act revolve around nurturing people into adulthood and giving them access to youth treatment and resources. However, he said none of that applies in this case because the offender would serve his entire sentence in adult prison.

Breker said the only benefit a youth sentence would give the offender would be a shorter sentence.

A youth sentence for second-degree murder is seven years – likely broken up as four in custody and three served in the community. An adult sentence for a 16- or 17-year-old convicted of second-degree murder is a life sentence with no chance of parole for seven years.

The defence

The offender’s lawyer, Andrew Hitchcock, agreed with Breker that the two-part test is the appropriate way to approach this problem, but argued that dismissing moral blameworthiness is an aggravating factor, so it has to be proven beyond a reasonable doubt.

Hitchcock argued this case and this offender don’t pass the first part of the test to get to an adult sentence – that the Crown’s arguments don’t “rebut the presumption” of a youth level of moral blameworthiness.

He argued that there are plenty of pieces of this case that lend themselves to finding that the killing was, at least in part, influenced by youthful immaturity – he said it was an alcohol-fueled brawl, a gang assault, that started over jealousy.

“It also was not, as my friend (Breker) has admitted, a particularly sophisticated or well-thought-out crime. There was evidence that (the offender) had armed himself prior to that; perhaps he expected trouble – that doesn’t equate to an intentional decision to use that knife and stab someone,” Hitchcock told court.

Read more:

• Memory a factor as target of fight takes stand at Misha Pavelick trial
• ‘So much blood’: Partygoers near Misha Pavelick recall the fights before he died
• ‘He said he couldn’t breathe’: Misha Pavelick’s ex-girlfriend testifies at murder trial

He argued that court and custody records show the offender, when he was around the age he killed Pavelick, would act well when he had structure and adults around, but would act another way when he was around his peers. Hitchcock said that showed he was influenced by his peers, which is a hallmark of being a young person.

Hitchcock also argued against Breker’s assertion that there was no change in pattern from the offender being a youth to an adult. He pointed to the reports done on the offender, which said his behaviour was more influenced by his peers as a youth, but as an adult, it was more influenced by substances.

The defence lawyer also reiterated the psychologist’s points about the offender’s cognitive functioning. He repeated that she said the offender still functions, in some ways, below the level of a 16-year-old and that it’s likely he was even less advanced as a teen than he is now.

“A psychologist finding that, even to this day, he doesn’t, in some ways, possess adult-like maturity and capacity for moral judgment surely has to mean that there’s at least reasonable doubt that, when he was 17, he didn’t possess that ability,” said Hitchcock.

He asserted that one couldn’t say with absolute certainty that the offender wasn’t acting like a typical teenager would.

Justice Dawson reserved her decision, saying there was a lot to go over. She set a date for court to re-convene May 26.