Ontario Court of Justice

Date: 2015-12-17

Court File No.: Toronto 4817 998 13-70002606 00

Between:

HER MAJESTY THE QUEEN

— AND —

WENDELL CRAIG TAYLOR

Before: Justice Richard Blouin

Finding of Guilt: August 13, 2015

Sentencing Hearing: October 2, 2015

Reasons for Sentence Released: December 17, 2015

Counsel:

Mr. Neville Golwalla — counsel for the Crown

Mr. Stephen Whitzman — counsel for the defendant Wendell Craig Taylor

BLOUIN J.:

Introduction

[1] On August 13, 2015 I found the defendant guilty of Mischief but not guilty of Voyeurism (and Criminal Harassment). I concluded that the defendant's video photography of the complainant's buttocks interfered with her lawful use of public property (Woodbine Beach). Regarding Voyeurism, I also concluded that his actions likely were carried out for a sexual purpose, but that essential purpose had not been proven beyond a reasonable doubt (see R. v. Taylor, 2015 ONCJ 499, paragraphs 33-36).

[2] Upon the finding of guilt, a pre-sentence report was ordered and a sentencing hearing was scheduled for October 2. On that date I heard submissions from counsel and reserved judgment until today. The following were made exhibits at the hearing:

Exhibit 1: A "victim" impact statement from Melissa Selvaggi. Ms. Selvaggi was not the named complainant but testified that she was subjected to the same conduct as the complainant on one day in May, 2010. I found her to be a victim as defined in section 2 of the Criminal Code which came into force July 22, 2015. Alternatively, even if not a victim, I received her impact statement as relevant evidence pursuant to 726.1. In addition, her evidence at trial articulated much of the same emotional distress as related in her impact statement.

Exhibit 2: A Pre-Sentence Report (PSR).

Exhibit 3: An Information from 2009 outlining the defendant's prior finding of guilt for Mischief for the videotaping of three women on Woodbine Beach on July 1, 2008.

Exhibit 4: On consent, an article from the on-line version of the Toronto Star dated August 27, 2015 which reported on this case.

[3] Before adjourning the sentencing hearing, I indicated I would entertain confirmation from the defendant of his employment, and his Seneca College Diploma. I have received both by e-mail, and copies of these will be made collectively Exhibit 5. In addition, both counsel felt it advisable that I receive a transcript of the guilty plea proceedings from August 24, 2009 in order to determine the full extent of the ruling by Justice Greene wherein the defendant received a conditional discharge and probation. That transcript will be made Exhibit 3(a).

Position of the Parties

[4] The defendant submits that another conditional discharge is appropriate. The Crown asks me to impose either a short, sharp, intermittent jail sentence, a conditional sentence, or a high fine. He admits what he is requesting sits at the high end of the appropriate range. I was also told by counsel that the defendant was arrested and released on bail on the same day.

Sentencing Principles

[5] The purpose and principles of sentencing are set out in the Criminal Code.

Section 718 — The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6; 2015, c. 13, s. 23.

Section 718.1 — A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.

Section 718.2 — A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(v) evidence that the offence was a terrorism offence, or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16.

Sentencing Factors

Mitigating Factors

• The defendant has been on bail since June, 2013 without incident.

• No evidence that the defendant ever transmitted, electronically or otherwise, any of the video images.

• The defendant has no criminal record (only a conditional discharge).

• Although the defendant does not have what I would consider a steady employment history, he is presently employed on contract as a Technical Support Analyst.

• The defendant has recently obtained a diploma in Computer Networking and Technical Support from Seneca College.

• The defendant has the strong support of his mother.

• The trial, and this Court's findings, were reported in the Toronto Star, and received coverage on various television and radio talk shows, which elevated the stigma of these offences upon his reputation.

Aggravating Factors

• The defendant was found guilty in 2009, and discharged conditionally for essentially the same criminal conduct and placed on probation for 12 months. He was given 75 hours of Community Service.

• The defendant was on that probation (commencing August 24, 2009) which included terms that he not attend Woodbine Beach, and that he not "have" a video camera. When he photographed women on Woodbine Beach in May 2010, he violated that probation order, although no charges were laid.

• The defendant lacks insight into his behaviour, and was dishonest with the writer of the Pre-Sentence Report (regarding being unaware that his conduct was illegal). From page 5 of the PSR:

When asked about the offence, he indicated that he was taking pictures around the beach of both women and men engaging in various activities, such as "playing volleyball and sunbathing". He claimed he did not take these photographs for sexual purposes. He noted that this was not his first time taking such photographs and explained that he was unaware it was illegal to take pictures of others without their consent. He claimed that had he known this, he would have never engaged in this behaviour. He indicated that he understands the victim's point of view in the situation as her "enjoyment at the beach was compromised."

• Ms. Selvaggi constructed a compelling victim impact statement which catalogued the harm done by the defendant. I will quote one of the paragraphs:

In a place where I should feel comfortable in a bathing suit I no longer do. Mr. Taylor's complete disregard for privacy has made me question other peoples motive while at the beach, making it a less likely place to visit. Mr. Taylor has created an ongoing sense of fear and paranoia that where ever I go or what ever I am doing it is an unwanted invitation to be unwillingly video taped. On a daily basis I often find myself questioning places of expected privacy; public bathrooms, changing rooms, gyms or even what I am wearing. I no longer dress with the intent of functionality and personal expression but with the fear that what I am wearing can make me a victim of being taped without consent. I often try to avoid these places having experienced that some people may have no regard for privacy and will go to lengths to violate it for their own gain.

• The defendant's conduct targeted women (718.2(a)(i)).

• The defendant's conduct had a significant impact on Ms. Selvaggi (718.2(a)(iii.1)).

• Ms. Silva, the named complainant, while she did not provide a victim impact statement, testified that she no longer attends the beach without her boyfriend.

Conclusion

[6] I fully recognize that the imposition of a criminal conviction carries with it significant repercussions. Chief among them are hindrances to obtaining or maintaining work, limitations to the pursuit of higher education, and difficulty travelling outside the country. I am loathe to impose a conviction if a discharge is even in close consideration. Here, given the significant impact on the victims, and the fact that the defendant had been sentenced by a judge in 2009 for the same conduct yet continued undeterred, the public interest would clearly not be met by granting another discharge. This is not a close call.

[7] In fact, when I collate Mr. Taylor's continued position that he did not know that he was doing something illegal, with the prior finding involving the same conduct and the significant impact on at least two women's lives, perhaps for the rest of their lives, I see no reasonable alternative to a custodial sentence. In my view, only a custodial sentence would be proportionate to the gravity of the offence and the degree of responsibility undertaken by the defendant.

[8] This defendant, and others that choose to target women, must receive a strong message. Given the obvious and many mitigating factors, and the Crown position, I am of the view that seven days incarceration, to be served intermittently, is appropriate.

[9] The defendant will also be placed on Probation for a period of twenty-four months, with the following conditions:

• report as directed by a probation officer;

• reside where directed by a probation officer;

• not attend Woodbine Beach;

• no contact or communication, directly or indirectly with Ana Silva and Melissa Selvaggi.

Released: December 17, 2015

Signed: Justice Blouin