COURT FILE NO.: YO-20-00000052

DATE: 20220811

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.R.-S.

Defendant

Ms. L. Shirreffs and Mr. N. Riley, for the Crown

Mr. M. Puskas, for the Defendant

HEARD: May 26, 2022

RESTRICTION ON PUBLICATION

Pursuant to subsection 110(1) of the Youth Criminal Justice Act, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as having been dealt with under this Act. This decision complies with this restriction so that it can be published.

Reasons for sentence

M.K. FUERST J.:

Introduction

[1] J.R.-S. was only 14 years old when, without warning or provocation, he viciously stabbed another youth to death. The killing occurred in the group foster home where both youths lived.

[2] J.R.-S. pleaded guilty to first degree murder.

[3] Notwithstanding his history of aggressive and violent behaviour, Crown and defence counsel submit that I should sentence J.R.-S. to the maximum youth sentence under the Youth Criminal Justice Act (YCJA). For the reasons that follow, I agree.

The Circumstances of the Offence

[4] J.R.-S. moved into a group foster home in Barrie in December 2018. He was then 14 years old, and a permanent Crown Ward of the Hamilton Children’s Aid Society (CAS). He moved placements because of his behaviour.

[5] The foster home was a two-story house in a residential area. It was operated by a treatment foster care agency for children and youth called Expanding Horizons. The agency was licensed by the Ministry of Children and Youth Services.

[6] In February 2019, the house had five residents. The adult caregiver, Jordan Calver, occupied the master bedroom on the second floor. Including J.R.-S., Mr. Calver had four teenagers in his care. N.N., E.J. and J.R.-S. each occupied separate bedrooms on the second floor. D.R., a 15 year old boy, occupied a bedroom on the main floor.

[7] Mr. Calver kept dangerous items, including knives and scissors, locked up in his bedroom.

[8] On February 17, 2019, while Mr. Calver was out running errands, J.R.-S. kicked in the door of Mr. Calver’s bedroom and stole two large kitchen knives from the drawer of the bedside table.

[9] When Mr. Calver found the door kicked in, he contacted the police. J.R.-S. was arrested and charged with mischief in relation to the damage to the door.

[10] However, Mr. Calver did not realize that J.R.-S. had stolen the knives.

[11] J.R.-S. returned to the foster home on February 18. He was agitated, and seemed determined to find out who had reported him to the police. He made comments that he believed D.R. had “ratted” on him to Mr. Calver. However, by the end of the evening Mr. Calver believed that the boys had resolved their differences and were playing video games together.

[12] Around 5:45 a.m. on February 19, J.R.-S. went into D.R.’s room. D.R. was asleep in bed. J.R.-S. assaulted D.R. in the head area, and used a sharp object to cut him.

[13] D.R. went upstairs to Mr. Calver’s room and woke up Mr. Calver by knocking on the door. When Mr. Calver answered the door, he saw D.R. bleeding from the head area. There was a puncture mark on his neck. D.R. said that he had awoken to what he thought was punching to the face.

[14] Mr. Calver sat D.R. down on a chair outside the master bedroom, then went to get a towel and to phone 911 for an ambulance.

[15] As Mr. Calver was about to return to D.R., J.R.-S. came up the stairs with a large kitchen knife in his hand. J.R.-S. went to D.R. and began to stab him multiple times, while looking at Mr. Calver. Mr. Calver was on the phone with 911 at the time. As Mr. Calver closed his bedroom door, J.R.-S. continued to stab D.R.

[16] Mr. Calver screamed out to the others in the house to alert them. E.J. woke up and jumped out his bedroom window onto the roof. He saw J.R.-S. flee from the house.

[17] When Mr. Calver learned from E.J. that J.R.-S. was gone, he opened his bedroom door. He found D.R. lying on the floor in a pool of blood. The long blade of a knife was in D.R.’s neck, with the blade sticking out of both sides of the neck. The handle of the knife was broken off and on the floor. D.R. was gasping for breath and bleeding profusely from his injuries.

[18] D.R. was taken to hospital by ambulance. He was pronounced dead just after 6:30 a.m.

[19] J.R.-S. was found by police soon after, walking in the area of the house. He was arrested for murder.

[20] J.R.-S. has been in custody since February 19, 2019.

[21] On post-mortem examination, it was found the knife had gone completely through both sides of D.R.’s neck and transected his jugular and carotid arteries. A stab wound to his chest had penetrated the right lung. Another to his middle chest/abdomen went completely through his liver and to the back of the ribcage. There was blunt force trauma to his face, including superficial cuts. His right hand had defensive wounds.

[22] The cause of D.R.’s death was multiple stab wounds.

The Victim Impact Information

[23] A number of Victim Impact Statements were filed.

[24] D.R.’s parents describe living a nightmare every day, knowing the horrific circumstances in which their son was taken from them. They continue to mourn his loss, and struggle to go on with their lives. His sister feels angry. She cannot comprehend and accept what happened to her brother.

[25] Mr. Calver struggles with symptoms of PTSD. He has continuous vivid nightmares of the murder, as well as flashbacks of the events. Daily tasks, including going to work and connecting with others, are difficult for him. He has had suicidal thoughts. Mr. Calver’s parents have struggled to understand and respond to the impact of the murder on their son.

[26] E.J. has experienced frequent nightmares, paranoia, and inability to focus. He too has been diagnosed with severe PTSD.

The Circumstances of J.R.-S.

[27] J.R.-S. is now 18 years old. He identifies as Indigenous. He has ties to the Six Nations of the Grand River Territory. He has no real knowledge of Indigenous culture or practices. He waived the preparation of a Gladue report for the purpose of sentencing.

[28] J.R.-S. was raised by his parents until they separated in 2015. There was verbal and physical abuse in the home as he was growing up. Parenting concerns were identified.

[29] J.R.-S. stopped attending school in grade 3 because of behavioural problems.

[30] After his parents separated, he remained with his mother. In January 2016 he went into care with the Hamilton CAS, after his mother said she could no longer manage him. He has had no contact with his mother since.

[31] For a few months in 2017 he lived with his father and his father’s partner, until they decided that they could not look after him because of his behaviour. In December 2017 at the age of 13, he became a Crown Ward of the CAS. He had numerous placements that broke down because of his behaviour, including outbursts, aggression toward people and objects, and non-compliance with rules. He did not have much contact with his father. He struggled with abandonment issues, low self-esteem, and low self-worth.

[32] J.R.-S. has a history of substance use that includes fentanyl, heroin, and alcohol. He has a prior youth record dating back to the fall of 2017. It includes offences of assault, uttering threats, and failing to comply with court orders.

[33] He has been diagnosed with Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, Obsessive Compulsive Disorder, and a learning disability.

[34] While in pre-disposition custody, he verbally and physically assaulted peers and staff. He had hallucinations and delusions, for which he was prescribed medication. He struggled with following rules. As a result, he was moved to Sprucedale Youth Centre in October 2021.

[35] While at Sprucedale, he received greater staff support, and started to take his prescribed medication as directed. His behaviour improved. The pre-sentence reporter advises that J.R.-S. has made positive gains while at Sprucedale. He is participating in anger management and supportive counselling, and also in recreational activities. He has been taking a math course. He meets with a Youth Justice Worker regularly to learn more about his Indigenous heritage. His father and an aunt are back in contact with him.

[36] The pre-sentence reporter describes J.R.-S. as tending to do better in controlled environments with routine. A forensic psychiatrist who assessed him for fitness to stand trial in the course of another proceeding earlier this year recommended that he have ongoing psychiatric care and mental health supports.

The Positions of Counsel

[37] Crown and defence counsel jointly submit that J.R.-S. should receive the maximum youth sentence of 10 years, composed of six years in custody followed by four years of supervision in the community. This takes into consideration his pre-disposition custody, and is in addition to it. In other words, counsel ask that no credit be given for the pre-disposition custody.

[38] Counsel submit that the proposed sentence is necessary to hold J.R.-S. accountable, to protect the public, and to maximize his rehabilitative potential. The sentence recognizes the significant aggravating circumstances, including that D.R. was attacked initially while in his own bed and a second time in front of the foster father, the significant violence involved, the fact that the life of a 15 year old was taken, J.R.-S.’s youth record, and his history of aggressive, violent behaviour. It also takes into account the mitigating factors, including his guilty plea, his difficult upbringing, his age at the time of the offence, and his Indigenous heritage.

[39] Counsel suggest that the period of community supervision is required because while J.R.-S. is making some progress, he has major difficulties to overcome if he is to be reintegrated into the community.

[40] Counsel seek a DNA order, and a s. 51(1) weapons prohibition order for life.

The Applicable Principles of Sentencing

[41] Subsection 3(1) of the YCJA sets out the purposes and principles underlying the youth criminal justice system, including the principle of diminished moral blameworthiness or culpability of young persons. Section 38(1) specifies that the purpose of sentencing under the Act is to hold the young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for them, and that promote their rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

[42] Under subsection 38(2), denunciation and specific deterrence may be objectives of a youth sentence, providing that the sentence is proportionate to the seriousness of the offence and the degree of responsibility of the young person.

[43] Subsection 38(3) sets out the factors to be considered, which include the aggravating and mitigating circumstances of the young person or the offence that are relevant to the purpose and principles of sentencing set out in s. 38.

[44] Subsection 38(3)(d) requires that the sentencing judge take into account the time the young person has spent in detention. The Ontario Court of Appeal has held that the treatment of pre-trial custody in a particular case, including whether any credit at all will be given, is discretionary. The sentencing judge can take pre-sentence custody into account in whatever manner they conclude will result in a sentence that will hold the young person accountable. The sentencing judge can, for example, award no credit where deducting pre-sentence custody would result in a youth sentence that would be of insufficient length to hold the young person accountable. See, for example, R. v. M.B., 2016 ONCA 760.

[45] As held in M.B., I am mandated by the YCJA to impose the least restrictive sentence that is capable of achieving the purposes expressed in the YCJA.

Analysis

[46] By definition, every murder is brutal, but that of D.R. was particularly so. There are a number of aggravating factors, including the following:

1. D.R. was attacked while he was at his most vulnerable, asleep in his own bed in his own room.
2. After seriously injuring D.R., J.R.-S. pursued him when he went to get help for his injuries. J.R.-S. then continued to stab D.R. despite the presence of the foster parent.
3. J.R.-S. inflicted multiple stab wounds to D.R., injuring critical parts of the body. J.R.-S. wielded a knife with such force that it completely penetrated D.R.’s neck and the handle broke off.
4. D.R. tried, but was unable to protect himself from the assault, as evidenced by the defensive injuries.
5. D.R. was a youth of only 15 years. He had done nothing to warrant J.R.-S.’s attack on him.
6. J.R.-S. fled from the house, knowing at least that he had very seriously injured D.R. He did nothing to try to get help for D.R., nor did he wait for help to arrive.
7. J.R.-S. obtained the knife or knives by committing an offence when he broke into the foster parent’s locked bedroom.
8. Although he was only 14 years old when he committed the murder, J.R.-S. already had a youth record that included crimes of violence and breaches of court orders.
9. He was bound by more than one probation order at the time.
10. J.R.-S. has a history of aggression towards others and defiance of authority. He suffers from disorders that involve difficulty controlling his emotions. He requires ongoing psychiatric care.
11. The impact of the murder on D.R.’s family and others was and remains marked. D.R.’s family was shattered by his death and the circumstances of it. Mr. Calver is a shell of his former self. Another young person has suffered psychologically because of the events.

[47] In mitigation, I consider the following:

1. J.R.-S. pleaded guilty. Although his plea was not an early plea, it is nonetheless a sign of remorse and acceptance of responsibility for the offence.
2. He was only 14 years old when he committed the murder.
3. He was raised in difficult circumstances that included abuse within the family unit and his parents’ eventual separation.
4. He is of Indigenous heritage. He wants to connect with that heritage and learn about Indigenous culture.
5. While at Sprucedale, he has received more effective support and has taken some steps toward rehabilitation. He has been able to reconnect with family members, which may assist with his rehabilitation and reintegration.

[48] This was a cruel and callous killing by a young man who has a concerning history of violent and aggressive behaviour. He suffers from significant psychiatric conditions. He needs to be detained in a structured, controlled environment, and to have ongoing psychiatric care and mental health supports.

[49] Were it not for the guilty plea and the progress that J.R.-S. has made since his transfer to Sprucedale, an adult sentence would be warranted.

[50] I am satisfied, however, after considering the purpose and principles of sentencing set out in ss. 3(1) and 38 of the YCJA, and taking into account the aggravating and mitigating circumstances particular to this case, that the youth sentence jointly proposed by Crown and defence counsel, including their suggestion as to the treatment of pre-sentence custody, is appropriate. That sentence will hold J.R.-S. accountable as it will have meaningful consequences for him, and it will promote his rehabilitation and reintegration into society.

Conclusion

[51] J.R.-S., please stand.

[52] I sentence you to the maximum youth sentence for first degree murder: 10 years, comprised of six years in custody followed by four years of conditional supervision in the community.

[53] I have taken the pre-trial custody into account, in particular in deciding to accept the joint position that a youth sentence should be imposed notwithstanding the horrific circumstances of D.R.’s murder. I have chosen to exercise my discretion to award no credit for pre-disposition custody against the sentence I impose. Deducting that custody would result in a sentence that would fail to hold you accountable.

[54] There is a DNA order, and a weapons prohibition order for life.

Justice M.K. Fuerst

Released: August 11, 2022

NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record.

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

J.R.-S.

REASONS FOR SENTENCE

Justice M.K. Fuerst

Released: August 11, 2022