Court File and Parties
COURT FILE NO.: CR21-248 DATE: 2022/03/11 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN B. Moodie and L. Ellins, for the Crown
- and -
R.O. L. Daviau for the Young Offender
HEARD: February 25, 2022
Reasons for Sentence - Subject to Section 110 of the Youth Criminal Justice Act
A. J. Goodman, J.:
[1] On October 7, 2019, young Devan Selvey, 14 years old, was stabbed to death near his school by R.O. The murder of Devan not only had a monumental and devastating impact on his family and friends, but on the greater Hamilton community as evidenced by the various media reports and community response.
[2] On the eve of trial, R.O., aged 14 at the time of the offence, plead guilty to one count of second degree murder pursuant to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46. As R.O. is a young person, the principles in ss. 38 and 42(2) of the Youth Criminal Justice Act, (“YCJA”) S.C. 2002 c.1 apply.
[3] Both Crown and defence propose a joint sentence disposition. Counsel submit that this case warrants the maximum penalty available under the YCJA. The defence also agrees to the community supervision framework and collateral orders sought by the Crown.
The circumstances of the offence:
[4] An Agreed Statement of Facts was filed:
On October 7, 2019, at 1:17 p.m., the accused, R.O. stabbed the deceased, Devan Selvey once in the back with a knife. The incident occurred on Dunsmure Road which borders the north side and rear of Sir Winston Churchill Secondary School. Immediately after the stabbing, R.O. fled west on Dunsmure Road and was soon apprehended by police several blocks away. After being stabbed, Devan ran east on Dunsmure Road for a short distance before falling to the ground. He died moments later from the stab wound. A substantial portion of this was captured on CCTV cameras.
Devan Selvey was 14 years old at the time of his death. He lived in Hamilton with his mother, Shari-Ann Selvey. In September 2019, Devan started in Grade 9 at Sir Winston Churchill Secondary School (“the school”).
R.O. was 14 years old at the time of the homicide. He resided with his mother. R.O. has two older brothers. He is very close with one brother, B.O., who turned 18 on October 3, 2019, and who was involved in the events leading to the homicide. R.O. has no prior criminal record.
In September 2019, R.O. was registered to start Grade 9 at the school. R.O. attended only a few classes and was in the process of being registered in an Independent Educational Program as an out-of-school student.
The school is in the Parkdale area in the east end of Hamilton. The school property is bordered on the south side by Main Street East, on the east side by Adeline Avenue, on the north side by Dunsmure Road and on the west side by Walter Avenue North. The main doors to the school open onto the north side of Main Street East. The school is equipped with CCTV security cameras. The Pat Quinn Parkdale Arena & Outdoor Pool (“the Pat Quinn Arena”) is located at 1770 Main Street East in Parkdale Park, on the south side of Main Street East, to the east of the school and across from Adeline Avenue. Glennie Avenue is the next street east of Adeline Avenue.
The area surrounding the school is primarily residential. Some of the houses have installed security surveillance cameras. One such house, located near the intersection of Dunsmure Road and Glennie Avenue, captured some of the relevant events preceding the homicide.
Hamilton Transit Services in the area include DARTS service. DARTS buses are equipped with CCTV security cameras. At the time of the homicide, a DARTS bus was travelling west on Dunsmure Road. The CCTV cameras captured some of the relevant events surrounding the homicide. The videos depict the timeline of the events leading to the homicide, as well as part of the stabbing.
Prior to October 7, 2019, Devan and R.O. were strangers, and neither of them knew of the other. On September 4, 2019, Devan and two of his friends, who also attended the school, were confronted by several youths outside school property who threatened to harm them unless Devan gave up his bicycle. The matter was reported to police as a robbery. No arrests were made. Neither R.O. nor his two brothers were involved in the theft of the bicycle or knew that it had occurred.
On October 7, 2019, Devan was at school with his friend B., who was one of the friends with Devan when his bicycle was taken from him on September 4, 2019. Around the lunch break, Devan and B saw a group of youths congregating at the smoking area near the Arena. Devan thought he recognized one of the youths that stole his bicycle. Devan texted his sister K, between 12:37 p.m. and 12:40 p.m., looking for his mother. When K did not respond, he texted B’s mother, KK, writing, “Hey um kid who toke my bike is here and I’m trying my best not to lose my shit can you tell my mom please.” KK responded by indicating that they were on their way. They arrived in Shari-Ann Selvey’s gold Ford SUV at 12:50 p.m.
After speaking to their sons, KK called SW to come to the school. He arrived at 1:10 p.m. in another car and pulled up behind the SUV. After some discussion, SW decided to confront the youths at the smoking area to see if he could retrieve the stolen bicycle. Sherri-Ann Selvey told Devan not to go, but he was upset and went anyway. SW confronted the group and accused them of stealing Devan’s bicycle. They all denied being involved. An argument ensued, during which R.O.’s brother deployed bear mace, which impacted most of the people in the area and caused the group to disperse.
After being impacted by the bear spray, SW ran west on Main Street East towards the main entrance of the school, where he tried to wash the spray from his eyes with bottled water. Shari-Ann Selvey made a U-turn and drove east on Main Street East to look for her son. At the same time, B., J., JA., and L. ran east on Main Street East away from the smoking area, past Adeline Avenue and turned north onto Glennie Avenue. Devan followed them a short distance behind.
At 1:14:45 p.m., the CCTV cameras located at the front of a residence on Dunsmure Road near the intersection with Glennie Avenue captured B., J., JA. and L. turn the corner to walk west on Dunsmure Road, with Devan following behind. Less than a minute later, Shari-Ann Selvey turned the corner in her SUV from Glennie Avenue onto Dunsmure Road and drove west after the group of boys.
B., J., L. and J.A. continued west on Dunsmure Road towards Adeline Avenue followed by Devan. Before they reached Adeline Avenue, Shari-Ann Selvey caught up to them in her SUV, at which point she was able to speak to her son to try to get him into the vehicle. The other boys ran through the intersection at Adeline Avenue to continue west on Dunsmure Road. Rather than get into his mother’s vehicle, Devan ran after the other boys.
Shari-Ann Selvey followed through the intersection and stopped behind a line of trees on the north border of the school’s property. At that point, JA and L. broke away and ran south onto the school property towards the north parking lot, where they met up with other youths. B. and J. emerged from behind the trees and continued walking west on Dunsmure Road. Shari-Ann Selvey was able to stop Devan from following and directed him to get into the SUV. Devan appeared to walk towards the SUV, but then turned and ran after B.O. and J. After making a call to Jacob’s father, Shari-Ann Selvey proceeded to follow after Devan and the other boys.
Before the SUV pulled out from behind the trees, the CCTV cameras captured the three boys stop in the T-intersection of Dunsmure Road and Ivon Avenue, where J. appeared to deploy an extendable baton. He later told police that he and B. and Devan were shouting at each other and that he deployed the extendable baton to get Devan to “back off” and that Devan did back off. No strikes or physical contact occurred at this time. B. and J. continued walking west on Dunsmure Road, with Devan following.
At 12:24 p.m. on October 7, 2019, B. called R.O. to arrange to meet outside the Pat Quinn Arena. At 12:55 p.m., R.O. called B.O. to say he was on his way.
While on his way to meet his brother, R.O. stopped at a convenience store and bought something to eat and drink. As he left the store, R.O. was accosted by another youth who robbed him of his gold necklace. R.O. made several calls to his brother for assistance, but his brother did not answer. As he walked eastbound on Main Street East approaching the school, R.O.’s call to his brother was answered. At the same time, Devan is seen on camera running westbound on Dunsmure Road through the intersection of Adeline Avenue in the direction of B. and J. R.O, who was still on the call with B., is seen on camera starting to sprint eastbound on Main Street East while removing a knife from his waistband.
As R.O. ran, he came out of his shoes. RA, one of the youths from the incident at the Arena, picked up R.O’s shoes and ran after him. As R.O approached the east end of the school, he cut across the school property towards Dunsmure Road, followed by RA. When RA caught up to him, she handed R.O. his shoes. They continued to walk across the grass, up to the sidewalk on the south side of Dunsmure Road and then continued westbound.
As they approach the white cube van, RA ran ahead of R.O. westbound on the sidewalk of Dunsmure Road and confronted Devan. They began to argue. When Devan called RA a “bitch”, she threw her water bottle at him and told him to hit her. Devan said he would not because he wasn’t raised that way.
While RA and Devan were arguing, Shari-Ann Selvey drove her SUV westbound to catch up. As she passed the cube van, she pulled to the curb a short distance ahead, stopped her car and got out just as her son was being stabbed.
By the time R.O. had caught up to the others, Devan was standing in the roadway in front of the cube van and his mother’s SUV facing west towards Riana. B. and J. were standing further west on the sidewalk.
As he approached the scene, R.O. heard yelling. Believing his brother was in some form of danger, R.O. dropped his shoes, which he was carrying in one hand, dropped his backpack, and removed the knife from his waistband with his right hand. With his cell phone in his left hand, he quickly moved around the rear of the SUV, which was now stopped, onto the roadway and approached Devan from behind, stabbing him once in his right upper back. Devan did not see or hear R.O. as he approached from behind.
R.O. fled west on Dunsmure with B. following. They turned onto Walter Avenue North. where RA caught up them. According to RA, R.O. asked her to take the knife, but she refused. As B. and R.O. continued running west on Roxborough Ave, Riana walked north on Walter Avenue North. After the stabbing, J. walked east, away from the scene, taking R.O.’s shoes and backpack with him.
After the stabbing, Devan ran east towards and past his mother, who was in the process of exiting the SUV as the stabbing happened. He collapsed approximately 30 metres further east near the white cub van. He was transported to Hamilton General Hospital where he was pronounced dead.
The time between R.O. being first viewed on CCTV camera footage talking to his brother and starting to run, and the stabbing of Devan Selvey is 1 minute and 58 seconds.
As the DARTS bus passed the scene, the driver saw the stabbing and slowed down. The DARTS bus camera caught part of the stabbing, as depicted in the photographs taken from the DARTS bus camera.
When he saw B. and R.O. running from the scene, he followed them for several blocks. Police were contacted via 911 at 1:19 p.m. by Shari-Ann Selvey, who stated that her son had been stabbed. Police arrived on scene at 1:23 p.m. Based on information received from the DARTS driver and others, police located and arrested R.O. and B. in a nearby yard.
At the time of the stabbing, Devan had in his possession, but was not holding, a purple-coloured knife, which was later found near his body at the scene of the homicide. The next day, police found R.O.’s knife, which was discarded in a flower bed of a residence located on Walter Avenue North, not far from the scene. As shown in the photograph, the overall length of the knife was 27 cm. The blade of the knife measured approximately 15 cm in length and 3.5 cm wide. The blade and handle are separated by a guard measuring approximately 5.5 cm. wide.
The examining pathologist determined that death was caused by a knife wound to the right back. Externally, the wound when closed measured 4 cm and there was no surrounding abrasion or bruising suggestive of a guard mark. The wound track measured at least 8.5 cm, and cut through skin, underlying muscle and a rib bone before entering the right lower lobe of the lung severing the pulmonary artery. There was also damage to the bronchus, which resulted in blood entering the airways, and allowed for potential aspiration of blood as well as pneumopericardium (air in the pericardial sac), which in turn may have impeded normal heart contractions. All of these injuries were the result of the stab wound, and resulted in significant rapid blood loss and death shortly thereafter. Minor scratches and abrasions were found on Devan’s left hand and forehead are consistent with the fall after being stabbed.
R.O. admits that, although he believed his brother was in danger, his conduct was unreasonable and therefore the homicide was not justified. He further admits that, when he stabbed Devan, he did so with the intention to cause serious bodily harm that he knew was likely to cause death and was reckless whether death ensued.
Victim Impact Statements:
[5] Six Victim Impact Statements (“VIS”) were filed with the Court. Several members of Devan’s immediate family and friends read their respective victim impact statements. Another VIS was read in by a former educator.
[6] The loss of Devan has greatly affected all members of the Selvey family and others. They will never be the same. I cannot do justice to the heartfelt, expressive, and deep emotions felt and articulated by the various individuals in their respective VIS by summarizing them here. While I will only be referring to segments of some of the VIS’s, all of them have been reviewed and considered.
Shari-Ann Selvey: Devan was a beautiful soul, who loved nothing more than being with Family. He was a compassionate, kind, and loving son, little brother, an uncle, grandchild, cousin, nephew, and friend. He was an amazing son, my youngest child who had so much life to live. Devan will never be a father, never get to live his dreams because of your actions. Of all the choices you had that day you chose to murder an innocent kid. I will never dance in the kitchen with Devan, nor have breakfast conversations, never will I have hugs, nor I love you’s from Devan. You have taken so much from my family and I. I have PTSD from this, the triggers are everywhere for me making life a living hell. I fight everyday to not fall apart, to just try and live my life. The nightmares of that day seem to never fade making impossible to sleep. Nothing will ever change what transpired that day, I will be forever missing my boy and everything that was beautiful about Devan.
Karissa-May Sullivan-Selvey: The innocent boy with a heart of gold. My little brother: the one who brought me popsicles in the early morning or late at night when the pregnancy sickness would have me throw up; the one who would wear my Halloween costumes just to make me laugh. To dance randomly or sing out of tune just to see me smile. Devan was my best friend, I helped raise him from a baby till his death. It was always my mom, Dev and I. Now that dynamic is broken. Do you understand how much pain and suffering you have caused? Not only did you take such an important piece of our family puzzle, you took our sunshine when the skies are gray. You will never know the light you put out. You will truly never understand the pain and grief you caused me, my mom and his best friends and more. This world is darker everyday without him.
Kristie G: There are no words that can even begin to describe how the loss of Devan has impacted myself and my family but I will try my best to put our experience into words. He was such a loving boy, always sitting next to me, snuggling up and just always saying how much he loved me. He was so sweet, gentle and very quiet. I swear a piece of my heart and soul died that day. Since Devan passed away I have also lost my grandmother. Her light went out within weeks of Devan’s passing. She couldn’t bare (sic) to lose another grandbaby. Her talks following his passing were always filled with grief, unanswerable questions and cries of sorrow. The day Devan died changed me completely. I am so filled with anger and sorrow. I spent over 2 years in therapy, meeting with 3 therapists a week at times to work me through the anger, sadness and depression. In short losing Devan rocked my world and continues to every day. He will forever be mourned!
Another VIS begins with “Dear Guilt Party”: The day you decided to use a weapon to murder another student at Churchill Secondary School in Hamilton would forever and permanently alter and change the lives of many – Devon’s his mother and sister and niece, grandmother, father, aunts, uncles, his friends and classmates, teachers, administrators, other parents, extended family, the general public, mine, and your own life. Your inability to reason and problem solve a perceived and temporary conflict in a rational, reasonable, respectful, and responsible manner resulted in the unnecessary, senseless, violent, and permanent departure from life of one Devan Selvey – a 14 year old who had only started high school for just over a month. The fact that you felt you needed to carry a knife to school is unsettling in itself but more alarming is the fact that you used that knife to snuff out the life of another human being – a young man whose life has touched many in life as well as in his death. In my now former role as an educator I spent countless hours teaching about bullying, problem solving strategies, self-regulation, conflict management, and appropriate communication skills … But, in a single instant I am overwhelmed with a multitude of thoughts and emotions… How could I continue to protect the students in my class and those in other grades and help to make them feel safe and protect them from another act How could I explain this murder to them that would make any sense or make them feel safe and it would not ever happen to them? As a close friend I feel: Emptiness for a young man who was robbed of the opportunity for a future… Sadness for a loss of innocence, compassion, kindness and understanding at such a young age; Confusion that you were unable to find more appropriate ways to resolve conflict; perplexed that you were unable for whatever reasons to differentiate between right and wrong; Sadness that you felt so unsafe that you needed to carry a weapon to school for protection; Sympathy that at 14 you felt so omnipotent that you had the right to take someone’s life and a child’s at that; Sympathy for a family whose family members have learned that violence is an appropriate strategy for dealing with issues.
[7] I want the family and friends of Devan to know that I am aware of the utter devastation caused by his death. I have not failed to understand your pain and sorrow and the tragedy of his senseless, horrific death. No one in this courtroom could help but not be moved by the heartfelt sense of bereavement and loss felt by the Selvey family, friends and other interested persons, which has been vividly described throughout the sentencing hearing.
[8] R.O. has been found guilty of second degree murder and will be sentenced accordingly. Nothing I do here will bring Devan back or expunge the enormous grief felt by his mother, family and friends. However, I cannot exact vengeance. The focus at this stage of the proceedings is what sentence I am to impose based on fairness, the balancing of the principles of the YCJA, the relevant jurisprudence and on the circumstances of this case and of the offender.
The circumstances of the offender:
[9] Extensive materials were filed on behalf of or in relation to R.O. The authors of the Pre-Sentence Report (“PSR”) the Psychological Assessment Report (“s. 34 Report”) and the Intensive Rehabilitative Custody and Supervision Suitability Assessment Report (“IRCS”) are to be commended for their efforts, comments and analysis in the preparation of their comprehensive and instructive reports filed in this hearing respectively.
[10] The author of the PSR reveals inter alia, that:
R.O. was born in Hamilton, Ontario to Ms. D.J. and T.O. D.J. stated that she obtained a restraining order against T.O. and reportedly gained sole custody of R.O. while T.O had supervised access to his son. D.J. and T.O. expressed that they continue to share a tumultuous relationship. D.J. reported that she moved out of Hamilton following R.O.’s arrest because of the negative publicity his case generated.
R.O. advised that when he was 11 or 12 years old, he and his father engaged in an argument and he did not speak to him for nearly 2 years, until a few months prior to his arrest. T.O. had attended a school meeting and became very angry with R.O. for his fighting behaviour. When discussing his relationship with his mother, R.O. stated that they have always been close. Additionally, R.O. expressed sharing a close and supportive relationship with his 20-year old brother, B.O.
R.O. reported that he and his brother were involved in the sale of illicit drugs for several years leading up to his arrest in 2019. R.O. indicated that he started selling marijuana at the age of 10 and then moved on to the sale of Xanax, Percocet, and Oxycontin. By the age of 12, R.O. shared that he was also selling other drugs, including cocaine, crack, heroin, and fentanyl.
R.O. explained that his brother B. was stabbed in an altercation near their home, sharing that he came home bleeding and going in and out of consciousness. R.O. admitted that after this incident he started caring a knife while in the community for protection. D.J. reported that she attempted to get R.O. clinical supports to help him process this traumatic incident, but R.O. refused.
R.O. reported a lengthily history of exposure to guns, including finding his father’s gun when he was young. R.O. explained that he has engaged in several physical altercations with his peers in the past, adding that most altercations occurred while at school.
R.O. was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) by his family doctor when he was 6 or 7 years old. R.O. recalled jumping out of a moving vehicle on his way to a doctor’s office to discuss a treatment plan. R.O. advised that he was smoking a “few joints” a day. He also admitted to attending school under the influence of this substance in the past.
R.O. admitted that he is unsure if he will abstain from further use of marijuana upon his release to the community, adding that he enjoys being under the influence and believes that it helps him to cope. R.O. has also reportedly experimented with Percocet (approximately 5-10 times), Xanax (5-10 times), Molly (once) and Codeine in the past. He indicated that he plans to abstain from further use of these substances.
R.O. reportedly transitioned to Grade 9 at Sir Winston Churchill Secondary School. R.O.’s school record illustrates a student who has experienced difficulties with his behaviour throughout most of his education. Major issues with truancy have also been identified in R.O.’s school record, commencing in Grade 5, and consequently negatively impacting his academic progress. It is noted in his OSR that R.O. had difficulty making friends and that he often struggled with aggressive behaviour towards his peers.
According to the OSR, in June of 2015, while R.O. was in Grade 4, the school requested his doctor to complete a pediatric assessment due to concerns with R.O.’s ongoing challenging behaviour.
R.O. was described as argumentative with peers and teachers, and he continued to be disruptive in the classroom when he did not want to do something. Similar behavioural difficulties were reported while R.O. was in Grade 6. The principal noted that R.O. was a constant distraction to himself and others in class. According to his OSR, R.O. incurred a total of eight suspension while in Elementary School, ranging from a 1 day to 20 days suspension. The reported reasons for R.O.’s suspensions included extremely disrespectful behavioural towards authority figures (Grade 8), possession of a weapon (Grade 6), ongoing bullying (Grade 6), involvement in a physical altercation (Grade 5), disrespectful language towards an authority figure (Grade 5), physical altercation (Grade 5), physical alteration (Grade 4), physical altercation (Grade 4), choking and fighting with students, opposition to authority and uttering death threats (Grade 4).
Conversely, R.O. has reportedly done very well, both academically and behaviourally, during his current school placement at Arrell Youth Centre. According to facility documents, R.O. has achieved 24 Secondary School credits during his time at this program, with grades ranging between 50% to 84%. R.O. conveyed that while at Arrell Youth Centre, he realized the importance of his education. He expressed that he has done well at his current school placement because he feels that the program supports his learning needs. R.O. shared that he aspires to attend college in the future for a trades program. R.O.’s current teacher at Arrell Youth Centre reported that in terms of behaviour, R.O. has been an exceptional student since he arrived at the facility. He further indicated that R.O. has been very dedicated in his studies and he has earned a significant amount of school credits in just over two years.
According to Arrell Youth Centre records, R.O. was involved in two peer related incidents. He was not identified as an aggressor in either incidents. The author of the report opines that R.O. has put forth a conscious effort to maintain positive peer relationships. R.O. was reported to follow all staff direction and appears to enjoy engaging with the staff in positive conversations. Reportedly, R.O. has actively participated in all cognitive programming opportunities at the facility.
R.O. has continued to receive ongoing counselling while at Arrell Youth Centre and presently meets with Ms. Jodi Klynstra, facility Social Worker, approximately once every two weeks. Ms. Klynstra described R.O. as a reserved and polite young man. R.O. has taken on a leadership and mentorship role at Arrell and that he regularly and voluntarily helps other residents.
She noted that he will request to speak to her, at times, when he is struggling with his mood and/or stress levels. R.O. was further described as having a positive and respectful attitude with staff and peers and has continued to present as respectful and polite when interacting with facility staff. He was reported to follow all staff direction and appears to enjoy engaging with the staff in positive conversations. Ms. Stringer mentioned that R.O. typically presents as very calm and collected and that he is usually quite guarded regarding his emotions and his mental health. R.O. has, however, developed positive relationships with several of the staff and that there are times when he will talk a little about issues when he is asked directly. Not surprisingly, Ms. Stringer explained that they do not see any indicators of significant anxiety, depression, or anger for R.O. She added that he has been on the highest privilege level at the Arrell Youth Centre for most of his stay given his positive behaviour with staff and residents, his ability to follow routine, and his good personal hygiene
Reportedly, R.O. has actively participated in all cognitive programming opportunities at the facility. Ms. Klynstra shared that R.O. impresses her with his maturity and self-awareness on his thoughts and reactions. She indicated that R.O has already shown a desire to better understand how his choices can impact on his life, both negatively and positively.
R.O. indicated that he will likely be living between his parents’ two homes upon his release to the community. R.O. has maintained regular contact with his parents while at Arrell Youth Centre and presently appears to be well supported by his family. He indicated that upon the completion of his Secondary School education he plans to attend college to learn a trade.
When discussing the offence before the Court, R.O. stated that he made poor decisions and regrets his actions that led to the death of a young man.
As per Youth Justice Records, on December 14th, 2021, R.O. received an 18-month Peace Bond for the charges of Assault Causing Bodily Harm, section 267 CCC, two counts of Utter Threat to Cause Death, section 264 CCC, and Unlawfully Confine, section 279 CCC.
The author of the report concludes that R.O.’s childhood and family life have been fraught with trauma and instability, including parental mental health difficulties, addiction issues, domestic violence, criminality, and interventions from the Children’s Aid Society. Sources reflect a lengthy history of academic, truancy and behavioural concerns beginning from a young age. There is documented evidence outlining violent and aggressive behaviour towards peers as well as conflict with authority figures.
R.O. appears to accept responsibility for his actions and demonstrated an appreciation for the impact of his behaviour on others. R.O. stated that he feels badly for what he has done, as he has taken Devan away from his family. R.O. presented as forthcoming during the interview for the purpose of preparing this report. He appears to accept responsibility for his actions and demonstrated an appreciation for the impact of his behaviour on others.
[11] The s. 34 report includes, inter alia, the following comments:
R.O. presented as a friendly and mature youth. He was polite and cooperative throughout the assessment, and he demonstrated excellent interpersonal boundaries.
It is also important to note that R.O. did not attempt to portray an overly negative or positive self-image on the tests that were completed. As such, his responses to the many tests and questionnaires are an accurate reflection of his perception of his thoughts, feelings, and behaviours.
R.O. described a number of potentially traumatic childhood experiences, including physical discipline, witnessing intimate partner violence between his parents, living in a community that felt unsafe, substance use by parents, witnessing community violence, a period of serious financial trouble for the family, neglect, and seeing his brother bleeding after being stabbed
The results indicate that R.O.’s overall cognitive functioning is within the Average range, or at the 55th percentile relative to the normative population.
R.O.’s score on tasks assessing his working memory (his ability to register, maintain and manipulate information in conscious awareness) was in the High Average range and at the 86th percentile. These results indicate that R.O.’s intellectual functioning is well within average limits and that his problem-solving skills are bolstered by his concentration and mental control abilities. R.O.’s overall visual-motor integration (the ability to integrate both visual and motor abilities), abilities were in the Average range, or at the 30th percentile. Overall, therefore, R.O.’s executive functioning skills were seen to be well within the Average range relative to others his age. R.O. mentioned that he was diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) when he was younger.
Academic Functioning: According to R.O., he started skipping school about once a week in grade 4, as he hated attending. In particular, R.O. apparently hated being told what to do, he hated the structure of the classroom, and he wanted to be able to talk to his friends in the class whenever he wanted to. He said that he attended three different “at-risk” programs in grades 4, 6, and 7 as a result of his poor school attendance.
Emotional Functioning: Ms. Stringer mentioned that R.O. typically presents as very calm and collected and that he is usually quite guarded regarding his emotions and his mental health. She added that R.O. has, however, developed positive relationships with several of the staff and that there are times when he will talk a little about issues when he is asked directly. Not surprisingly, Ms. Stringer explained that they do not see any indicators of significant anxiety, depression, or anger for R.O.. When asked about anger, R.O. stated that he gets most angered when others annoy him, try to take his things, or are disrespectful towards his family. When asked about anxiety, R.O. explained that “everything” makes him anxious
R.O.’s personality test responses indicate that he tends to worry a lot about negative outcomes and that he tends to anticipate rejection and/or humiliation from others. R.O.’s responses on a standardized measure of anxiety indicate that he is currently experiencing significant anxiety (>99th percentile) relative to the normative population. In particular, he described frequent physical symptoms of tension and panic (e.g., feeling jumpy, sweaty hands, shaking, racing heart), obsessions/compulsions (e.g., perfectionism, unnecessary counting, re-checking things, repeating things until they feel right), and social anxiety (e.g., worried about being laughed at or called on in class, worried about doing something embarrassing, very nervous to perform in public). Overall, R.O. currently meets diagnostic criteria for Generalized Anxiety Disorder (DSM-5; 300.02), as there is evidence that R.O. experiences excessive anxiety and worry most days, this has been the case for several years now, and it is often difficult for him to control his worries. R.O.’s heightened anxiety is also associated with frequent feelings of tension and restlessness, concentration challenges, and difficulties falling asleep.
Rule-Breaking & Criminal Behaviour: When asked about fighting, R.O. described how he would probably get into physical fights every few weeks at school, and he indicated that most of those fights were not initiated by him. R.O. described how he has only had a couple of fights in the community, and he acknowledged that he feels a little proud of how he was able to win in fights with older boys. R.O. stated that he had lots of boxing practice at home—both with his older brothers and with a heavy bag.
R.O. said that he has had a lot of exposure to guns. R.O. acknowledged that he began carrying a knife at age 12 after an incident where he was apparently robbed. He said that he stopped carrying a knife about 6 months later but that he started to carry a knife once again in June or July of 2019 (age 14) after his brother was reportedly stabbed.
When asked about the murder of 14-year-old Devan Selvey, R.O. described how he received a phone call from B. on that day and that B. called him to say that someone was chasing him. R.O. explained that this was just several months after B. had been stabbed.
R.O. reportedly ran to the high school where his brother was usually hanging out at that time of day. R.O. said that, as he was running past a group of students, one girl said that the person chasing B.O. had a knife. R.O. said that he ran for about 30 to 40 seconds and then saw his brother. R.O. said that he saw that his brother’s face was all red, so he quickly went into “defence mode” and stabbed Devan once from behind. R.O. mentioned that he did not know Devan prior to this time.
R.O. said that he could have just punched Devan and that he was not thinking in the moment. Rather, he said that he felt justified in the moment, because he wanted to protect his brother, and he thought that his brother had been harmed and was at further risk of harm. R.O. stated that he feels badly for what he has done, as he has taken Devan away from his family. R.O. added that he tries not to think about the murder and that he is sometimes triggered to remember what happened when he sees blood in the kitchen or when he sees certain scenes in movies.
With respect to R.O.’s current functioning, he acknowledged that he occasionally loses his temper, gets annoyed with others, lies to get out of things, and argues with adults however, he did not describe significant defiance, aggression, or oppositionality.
[12] When addressing the Court and members of the Selvey family and others in attendance, R.O. expressed regret for his actions and the pain he has caused to all those who have been affected by Devan’s death. He says that “I can never take back what I did that day and I will have to live with it for the rest of my life. I wish we could both go back to our families, but I took that away from Devan. I am ready to accept the consequences and I feel I have made good use of my time in custody and I will continue to do so, if not for me, then for the memory of Devan.”
The Governing Principles:
[13] Section 38(1) of the YCJA emphasizes that the purpose of any youth sentence is to hold the young person accountable for his or her offence. This is to be achieved by imposing sanctions that have meaningful consequences for the young person, and that promote his or her rehabilitation and reintegration into society thereby contributing to the long-term protection of the public.
[14] The accountability analysis involves consideration of proportionality and rehabilitation, with the latter being subject to the proportionality principle. Under s. 38(1), consideration must be given to the sentence that has the greatest chance to rehabilitate the young person. Section 39(3) requires consideration of the youth's attitude toward rehabilitation, his or her history with rehabilitative programs and the availability of such programs. Section 38(2) sets out additional factors that must be applied when determining a youth sentence. The sentence (i) must not be greater than that imposed on an adult in similar circumstances; (ii) must be similar to sentences imposed on similar young persons in similar circumstances; (iii) must be proportionate to the seriousness of the offence and the degree of responsibility of the young person; (iv) subject to proportionality concerns, must be the least restrictive sentence capable of achieving accountability, (v) the most likely to rehabilitate and reintegrate the young person into society, and promote a sense of responsibility in the young person and acknowledge the harm done to the victims and the community; and (vi) subject to proportionality concerns, may serve the objectives of denunciation and specific deterrence.
[15] Section 42 of the YCJA provides that:
(q) (ii) in the case of second degree murder, seven years comprised of
(A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed four years from the date of committal, and
(B) a placement under conditional supervision to be served in the community in accordance with section 105;
(r) subject to subsection (7), make an intensive rehabilitative custody and supervision order in respect of the young person
(i) that is for a specified period that must not exceed
(A) two years from the date of committal, or
(B) if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of committal,
and that orders the young person to be committed into a continuous period of intensive rehabilitative custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder under conditional supervision in the community in accordance with section 105,
(ii) that is for a specified period that must not exceed, in the case of first degree murder, ten years from the date of committal, comprising
(A) a committal to intensive rehabilitative custody, to be served continuously, for a period that must not exceed six years from the date of committal, and
(B) subject to subsection 104(1) (continuation of custody), a placement under conditional supervision to be served in the community in accordance with section 105, and
(iii) that is for a specified period that must not exceed, in the case of second degree murder, seven years from the date of committal, comprising
(A) a committal to intensive rehabilitative custody, to be served continuously, for a period that must not exceed four years from the date of committal, and
(B) subject to subsection 104(1) (continuation of custody), a placement under conditional supervision to be served in the community in accordance with section 105; and impose on the young person, in accordance with paragraph 38(2)(e.1), any other conditions that the court considers appropriate.
Application of the Legal Principles to this Case - Analysis:
[16] Mr. Moodie is entirely correct. For a variety of reasons expressed by counsel, this is a most challenging case for the parties and the court as it pertains to the imposition of a just and appropriate sentence.
[17] As noted in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, Abella J. stated the following at paras. 40 and 41:
…As the YCJA confirms, there is in fact a separate legal system for young persons. Section 3(1)(b) confirms that "the criminal justice system for young persons must be separate from that of adults".
What the onus provisions do engage, in my view, is what flows from why we have a separate legal and sentencing regime for young people, namely that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment.
[18] “Accountability" in the context of the YCJA is the equivalent of the notion of "retribution" in the adult sentencing context: R. v. C.A.M. (1996), 105 C.C.C. (3d) 327 (S.C.C.). Retribution requires a reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the consequential harm caused by the offender and the character of the offender and his or her conduct. Furthermore, retribution incorporates a principle of restraint. Thus, accountability in the context of the YCJA does not entail an element of general deterrence as found in the adult regime. Accountability requires that the sentence reflect the seriousness of the offence and the young offender’s role and provide reasonable reassurance of the offender's rehabilitation to the point where he can be safely reintegrated into society.
[19] Section 38(3) stipulates that in determining a youth sentence, the court shall take into account the degree of participation by the young person in the commission of the offence; the harm done to victims and whether it was intentional or reasonably foreseeable; any reparation made by the young person to the victim or the community; the time spent in detention by the young person as result of the offence; previous findings of guilt and other aggravating and mitigating circumstances.
Aggravating Factors:
[20] There are a number of serious aggravating factors in this case.
[21] The nature of the offence itself: The senseless taking of a young life. The murder has a degree of callousness and bravado that is disturbing.
[22] Indeed, Devan and R.O. did not even know each other. There were no defensive wounds on the deceased. He was stabbed in the back. As such, Devan would have been in an entirely vulnerable and in a defenseless position the instant he was killed by R.O.
[23] The after the fact conduct: R.O. fled from the scene without regard or concern for the fatal injuries he inflicted on his victim. He left Devan on the street, fatally wounded. R.O. did not make any calls to 911. No requests for any assistance was offered. He also attempted to discard or destroy evidence.
[24] R.O. has no previous findings of guilt in a youth court. That is not to say that he has lead a pro-social life. He had been diverted from prior misconduct with the imposition of a peace bond. He has been the subject of numerous and flagrant transgressions and anti-social behaviour leading up to this incident while at school and elsewhere in the community.
Mitigating Factors:
[25] R.O. pleaded guilty to a very serious charge. In my view, a plea of guilty is a serious mitigating factor, as it demonstrates remorse and acceptance of responsibility for the misconduct. While the guilty plea in this case was offered on the eve of trial, I am persuaded that R.O. has shown regret and remorse by virtue of the plea and his statement to this court and the Selvey family.
[26] R.O. has faced significant and diverse challenges throughout his life as referenced in the various reports denoted earlier in these reasons.
[27] R.O. acted alone and his risk taking actions in committing the murder was very serious, albeit impulsive and not planned.
[28] In order to address this sentencing, all counsel propose strict terms of community supervision under an IRCS. Section 42(7) of the YCJA sets out the conditions for an IRCS sentence. It is a sentence invoked specifically for young offenders who have committed serious, violent offences and who have mental health issues. In this case, the IRCS report includes, inter alia, a Summary of Risks and Protective Factors and General illegal behaviour:
The Youth Level of Service-Case Management Inventory (YLS/CMI) 2.0 3 is designed to inform decisions regarding the intensity of services required for youth aged 12-18 who have engaged in illegal behaviour (violent or nonviolent).
R.O.’s score of 5 risk factors on this tool places him at the low level of need for intervention for general criminal behaviour relative to other male youth in custody settings. The risk factors that were rated as present for R.O. were related to his poor relationship with his father, his limited friendship and acquaintance relationships with prosocial peers, and his procriminal attitudes. Most risk factors for general youth delinquency were not currently present for R.O., including prior convictions and probation, problems with classmates and teachers at school, lack of involvement in organized activities, tantrums, inflated self-esteem, short attention span, aggression, and defiance of authority, for example….also several strength areas noted for R.O. on this measure, including his active participation in school, his lack of substance use, his involvement in leisure activities, his prosocial behaviour, and his positive orientation towards staff and residents.
The Structured Assessment of Violence Risk in Youth (SAVRY)4 is a risk assessment tool based on the structured professional judgment model.
The SAVRY contains 24 risk factors (each rated at a low, moderate, or high level of concern) and 6 protective factors rated as present or absent) regarding interpersonal violence potential for youth aged 12-18. For R.O., 7 of the 24 risk factors on the SAVRY were rated a high level of concern, and 6 of these 7 factors are historical. Overall, based on the number and combination of risk and protective factors, it is judged that R.O. presents with a moderate level of need to address the potential for general, interpersonal violence.
At the present time, R.O. meets diagnostic criteria for Generalized Anxiety Disorder (DSM-5; 300.02). R.O. has experienced Developmental Trauma.
This continual survival mode leads not only to psychological changes, such as hypervigilance, low frustration tolerance, and impulsivity, but it can also result in changes to the central autonomic nervous system. These neurological changes can impact the child’s ability to learn and to tolerate stressors.
It will be critical for those working with R.O. to ensure that they are working form a trauma-responsive perspective when they are addressing his counseling goals and to provide him with the opportunity to process the several adversarial experiences in his childhood and early adolescence.
R.O. has adapted very well to the rules, routine, supervision, and structure provided by his placement in custody. For example, he has stopped his use of recreational drugs and alcohol, he participates regularly in prosocial leisure activities, he has been committed to academic success, and he has been a positive leader with his peers. It will be critical, therefore, to ensure that R.O. continues to have a custodial placement whereby he is provided with the supports, structure, and supervision like those that have been provided through Arrell Youth Centre so that he can continue to develop his life skills. Funding from the IRCS program will certainly assist in this regard, and the IRCS funding will also be very helpful to assist R.O., clinicians, correctional staff, and R.O.’s family to design and implement a reintegration plan to ensure that R.O.’s many gains are maintained as he transitions to the community.
Given that R.O. expressed an interest in an occupation in the trades, and that he is well on track to complete his high school education prior to the completion of his custodial sentence, it may be advantageous to place R.O. in a custody setting where he can learn a trade—in addition to completing his high school diploma.
It will be ideal to assist R.O. in his counseling to find a way(s) to work towards making restitution for taking the life of a 14-year-old boy. It will be helpful to provide R.O. with psychotherapy to address his heightened anxiety. It will also be ideal to work with R.O. to assist him to challenge and alter the attitudes that he currently holds that are somewhat supportive of criminal behaviour. A cognitive-behavioural approach would be useful in this regard whereby R.O. would first understand the link between attitudes and behaviour and then examine and challenge the evidence that he currently has to support his beliefs and automatic thoughts regarding the role of laws and the legal system.
IRCS Suitability Assessment Report
Mental Health Diagnosis: Youth was assessed on Jan-04-2022, by Dr. James R. Worling, Psychologist, and found to meet the Axis 1/Section II criteria for a diagnosis of Generalized Anxiety Disorder.
Substance Use: R.O. reported that he first tried marijuana when he was 9 or 10 years old. He indicated that his use quickly progressed and that by the age of 12 he was using this substance daily. Prior to his placement at Arrell Youth Centre in October 2019, R.O. conveyed that he was smoking a “few joints” a day.
Generalized Anxiety Disorder: According to R.O.’s S.34 Psychological Assessment, he has symptoms consistent with Generalized Anxiety Disorder. R.O. reportedly experiences excessive anxiety and worry most days, this has been the case for several years now…His heightened anxiety has been reported to also be associated with frequent feelings of tension and restlessness, concentration challenges, and difficulties falling asleep. R.O. is currently not medicated and has not yet engaged in treatment to address his mental health issues.
Developmental Trauma: According to his s.34 Psychological Assessment, R.O. has experienced Developmental Trauma. R.O. has described several potentially traumatic childhood experiences, including physical discipline, witnessing intimate partner violence between his parents, living in a community that felt unsafe, substance use by parents, witnessing community violence, a period of serious financial trouble for the family, neglect, and seeing his brother being stabbed.
R.O.’s current offence was violent in nature and involved a young victim in the community. To promote accountability, R.O. will require violence-offence specific interventions to address his behaviour and to gain further responsibility for personal choices.
Interpersonal Functioning: Healthy Relationship Skills: R.O.’s Pre-Sentence Report identified interpersonal difficulties with his school peers throughout his life, including displaying violent and aggressive behaviour. Family Relationships: Since early childhood, R.O. has had an unstable relationship with his father. R.O. explained that, although his father has been in his life throughout his childhood, he described their relationship as being “distant”. Communication between the two has now resumed and both R.O. and his father reported an improvement to their relationship. R.O. indicated that since being at Arrell Youth Centre, he and his mother have strengthened their relationship. R.O. witnessed a difficult relationship between his parents throughout his life.
Other areas were canvassed including, Childhood Victimization Issues, Emotional Instability/Disturbance, Developmental Trauma, Stress/Anxiety, Identity, Social Functioning, Criminal Values/Thinking, Victim Impact, and Accountability
Learning Disability/Challenges: R.O. has performed well in school during his placement at Arrell Youth Centre, adding that he feels well supported in this school environment. According to his S. 34 Assessment, R.O.’s intellectual and academic functioning are well within average limits, overall. R.O. however scored low to below-average on some areas of the academic testing.
Employment/Vocational Assessment/Training: R.O. has expressed an interest in pursuing a future career in the trades, however, he is currently unsure what trade he would like to pursue. R.O. would benefit from a vocational assessment/training
Reintegration/ Community Support/Resources: A significant portion of R.O.’s treatment plan will focus on his reintegration needs into the community…increasing his confidence and readiness. Ongoing counselling and family therapy will be sought. Risk mitigation will assist with R.O.’s return home and supports will be implemented.
Income Support Needs/Planning: The following programs, services and interventions are recommended as part of the IRCS Treatment & Reintegration Plan to reduce the risk of recidivism. Psychological Assessment; Psychiatric Assessment; Psycho-Vocational Assessment; Psychiatric Treatment and/or Pharmacological Management of: Generalized Anxiety Disorder; Individual Treatment/Therapy with Clinician; Cognitive Behavioural Approach to assist R.O. to challenge and alter some of the attitudes that he currently holds that are supportive of criminal behaviour; Family Treatment/Therapy with Clinician; Violent Offence-Specific Counselling: R.O. will benefit from engagement in offence-specific treatment. Group Counselling/Intervention; Anger Management Program; Substance Abuse Education Program; Substance Abuse Relapse Prevention; Anti-Criminal Thinking Program; Family Relationships; Narcotics Anonymous; Community Reintegration Support Worker; Art Therapy; Cognitive Behavioural Therapy (CBT) and Dialectical Behavioural Therapy (DBT) have been recommended in R.O.’s S. 34
An Assessment to address symptoms of Generalized Anxiety Disorder. This treatment can be accessed at the custody facility through R.O.’s involvement with the Clinical team. Additional supports can be sought through IRCS funding. Further referrals for counselling in the community can be initiated prior to R.O.’s release to the community.
The report also assessed Skill Development; Educational Intervention; Specialized Services/Programming Medical/Physical Health Intervention Reintegration Services.
A custody transfer will be sought for R.O. flowing his sentencing to Sprucedale Youth Centre, a secure custody facility located in Simcoe, Ontario. This placement was chosen based on the specialized service needs of the youth, the ability to facilitate the youth’s participation in treatment programs and services utilizing facility staff and specialized community service providers. R.O. has also identified an interest in the TRADES program currently offered at this facility. R.O. has expressed consent to this transfer. Future placement decisions will be made based on R.O.’s progress in secure custody, his evolving treatment needs and his reintegration goals. R.O. will be assisted to successfully reintegrate into the community through the use of regular Reintegration Leaves to visit family members and participate in community events and activities.
[In summary, the report writer opines that] R.O. has expressed regret for his offending behaviour and appears to appreciate the consequences of his actions. He has stated his intention to improve his personal situation and make pro-social choices when returned to the community. R.O. is amenable to becoming involved in treatment and programming through the implementation of the Intensive Rehabilitative Custody and Supervision Order (IRCS). He presents as being motivated to engage with supports that will foster his growth. R.O. has maintained his motivation to complete his Ontario Secondary School Diploma and to pursue post-secondary education in the near future. R.O. express that he presently feels well supported by his family and plans to continue to maintain regular contact with his family for support. To date, R.O. has responded very well to the structure and routine environment that a secure custody facility offers. R.O. has participated and completed a myriad of programs to date and has engaged in individual counselling.
[29] There is no doubt that the intent of the IRCS regime is to provide young offenders who qualify for the program with the treatment and counselling they require to ensure their rehabilitation and reintegration back into society.
[30] I accept the s. 34 and the IRCS reports and their recommendations. There is prodigious evidence from medical, psychological, probation and professional staff about R.O.’s prospects for rehabilitation and his diminished prospective dangerousness to society at large. The reports provide detailed information and expert opinion about R.O.’s diagnosis and plans to reintegrate back into society.
[31] I acknowledge counsels’ submissions regarding R.O. being a changed youth from October 2019 to today. As Ms. Daviau points out, her client has thrived while in custody over the past two years. R.O. has gained some insight into his underlying behaviours. He has willingly undertaken counselling while awaiting trial for a prolonged period of time. There is recognition of some behaviour modification. He is now three credits short of his high school diploma. His prognosis for other issues not directly related to this offence has been listed as entirely favourable.
[32] In this case, it may be apt to suggest that my sentencing decision is made less onerous due to the fact that counsel have proposed a joint submission for my consideration: See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204. While the Supreme Court of Canada directs trial judges to give vigourous consideration to joint submissions, it is trite to mention that a sentencing judge does not merely rubber stamp the joint positions of counsel, but must give due regard to their submissions.
[33] Here, we have two experienced Crown attorneys and defence counsel advancing a mutual and united disposition. I have no doubt that all counsel in representing their respective constituencies have arrived at their positions through much deliberation and extensive consultation, as explained on the record, having regard to the nature of this case and of the particular offender. The lawyers have persuaded me that their proposed joint disposition regarding this presumptive offence with the principles of diminished moral culpability under the YCJA is sufficient to hold R.O. accountable for this crime.
[34] I am also satisfied that pursuant to s. 42(7) of the YCJA, an IRCS order can be imposed in this case because the four pre-conditions are satisfied: (a) R.O. has been found guilty of murder; (b) R.O. is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance, namely, generalized anxiety disorder; (c) a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds to believe the plan might reduce the young person's risk of recidivism; and (d) the provincial director has determined that an IRCS program is available and the young person's participation in it is entirely appropriate.
[35] A youth sentence that comprises an IRCS order means that R.O. will have the benefit of many years of intensive treatment and counselling, to which he has already demonstrated significant constructive engagement and response.
Conclusion:
[36] The stabbing of a defenseless and vulnerable young man such as Devan on the street near his school, for no real, understandable reason, other than turmoil within R.O.’s psyche or life at the time or for some ill-conceived notion of his brother being in some danger, cannot be considered to be anything other than a very serious and heartless murder. I share the family and community’s shock and abhorrence to this type of crime and to the ultimate fate that befell Devan at the hands of this offender. Recourse to violence of any nature or form, whether physical, verbal or emotional cannot be condoned.
[37] There can be no doubt that this was a senseless murder of a young victim whose mother, father, sister, cousins, friends, school administration and staff and others will never be the same. The utter devastation on these and other persons have and will continue to be felt. Hopefully, today’s sentence can bring some degree of finality and closure to the Selvey family.
[38] As mentioned, the lawyers propose a youth sentence for this crime. Based on the evidence adduced at this hearing and the relevant jurisprudence under the YCJA, I accept the joint recommendations of the Crown attorney and defence counsel.
[39] R.O. is to be sentenced to the maximum allowable term permitted under the YCJA for second degree murder.
[40] The sentence to be imposed is as follows: R.O. is to provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code. I order a s.42(2)(j) and s. 51(1) YCJA lifetime weapons prohibition.
[41] In accordance with s. 743.21 of the Criminal Code, R.O is prohibited from communicating, associating or contacting directly or indirectly any member of Devan’s family, including but not limited to, Shari-Ann Selvey and Brody Wagar-Killoran, while in custody.
[42] R.O. is sentenced to a seven year sentence, comprising four years in custody and three years under conditional supervision. Unlike the adult system, there is no rule regarding credit for presentence remand. Pursuant to s. 38(3)(d), I am required to take presentence custody into account, but my consideration of any credit for pre-sentence custody is entirely discretionary. Both defence and the Crown submit that credit ought to be afforded on a 1:1 basis from the agreed-upon date of February, 7, 2020. In this case, I am prepared to provide credit for most of the pre-sentence custody, capped at 24 months. I order that the remaining segment of the secure custody sentence to be served by this offender is two years.
[43] Following the secure custody segment, R.O. is to serve three years of community supervision under an Intensive Rehabilitative Custody and Supervision sentence pursuant to s. 42(2)(r)(B) of the YCJA. All of the reports filed for the sentencing hearing shall be shared with the treatment and correctional professionals involved in R.O.’s community supervision.
A. J. Goodman, J. Released: March 11, 2022