WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 09 11 Court File No.: Central East Region: Oshawa Courthouse: File #22-38102390

BETWEEN:

HIS MAJESTY THE KING

— AND —

TAYLOR JAVER

Before: Justice Peter C. West

Oral Sentencing Submissions Heard on September 11, 2024 Oral Reasons for Sentence Given on September 11, 2024

Counsel: Ms. J. Dafoe................................................................... counsel for the Crown Ms. C. Reynolds................................... counsel for the accused, Taylor Javer

WEST J.

Introduction

[1] Taylor Javer had a trial respecting charges of sexual interference, invitation to sexual touching, sexual assault and luring over two days. The Crown elected to proceed on all charges by indictment. On May 29, 2024, I found Mr. Javer guilty of all four charges he was facing. The invitation to sexual touching and sexual assault charges were conditionally stayed pursuant to the principles enunciated in R. v. Kienapple, leaving the sexual interference and luring offences for sentencing. The matter was adjourned to September 11, 2024, for written submissions by counsel to be filed with caselaw, together with Victim Impact Statements of the complainant, Z.B. (aka Z.C.) and her mother (A.C.) were to be filed by the Crown and I ordered a Pre-sentence Report. I heard further focussed oral submissions by counsel, answering questions posed by myself and in response to the written submissions filed. I want to express my appreciation and gratitude for the professional and well-prepared manner in which counsel dealt with this trial, their submissions, and this sentencing hearing.

Factual Background

[2] I outlined my findings of fact in detail in my oral reasons for judgment provided on May 29, 2024, and I adopt my findings for the purposes of sentencing. I will have to deal with some of the facts in order to address counsel’s submissions, in particular relating to whether consecutive or concurrent sentences should be imposed respecting the sexual interference and luring offences.

[3] Z.B. was 14 years of age when she first began conversing by social media with Taylor Javer at the end of 2021. I accepted her evidence that she told Mr. Javer how old she was at that time, and he told her he was 24 years of age. They communicated on a social media site called Omegle, where users do not have accounts or profiles. They also communicated on Discord, Snap Chat, and regular text messages. Z.B. turned 15 in February 2022 and was still attending high school, which she also told Mr. Javer and I accepted. Mr. Javer told her he was working and living with roommates in Toronto. Z.B. resided with her mother in Barrie, which Mr. Javer was aware of from Z.B. complaining about always having to clean the house and about how her mother controlled her use of social media. Z.B. has been diagnosed with autism and a multiple personality disorder (apparently now referred to as a Dissociative Identity Disorder). She has another personality, “Ivy”, who is between five (5) to seven (7) years of age. Mr. Javer was aware of these diagnoses for Z.B., as she told him about them and in his evidence he agreed he had spoken with “Ivy”, in text and on the phone. Z.B. also described, in a text conversation with Mr. Javer, a condition she experienced with “tics”, which he told her he was familiar with. I found Mr. Javer was fully aware of Z.B.’s mental health issues and her vulnerability. Mr. Javer gave Z.B. a false name, Teyshawn Rossi. As it turns out, based on the Pre-Sentence Report, Mr. Javer also lied to Z.B. about working and living with roommates.

[4] I found Mr. Javer engaged in grooming behaviour with Z.B. throughout his text and phone call interactions with her and he was clearly exercising control over her in terms of when she could call him or have text conversations with him. This went on for about four months before he started trying to arrange an occasion they could meet in Barrie. I found the purpose of Mr. Javer’s communications with Z.B. was to have sexual relations with her, despite knowing she was 14 and later 15 years of age. There were numerous occasions in the evidence where Mr. Javer was engaging in conversations with Z.B. about the two of them having sex together. Despite his denial in his evidence in chief about his bringing up the topic of sex activity with Z.B., the text messages clearly indicate he was initiating conversations about sex and sexual activity between the two of them. Z.B. provided him information as to when her mother was at work and her brother would be at school so they would be able to meet in Barrie without her mother or brother being around. There was one particular conversation initiated by Mr. Javer where he was concerned “Ivy” might come out when he and Z.B. were having sex and what he should do. I found Mr. Javer lied and attempted to minimize this grooming conduct on his part. I found the texts corroborated Z.B.’s evidence and accepted her evidence respecting the grooming conduct engaged in by Mr. Javer. There was another text conversation where Mr. Javer indicated he was almost finished deleting stuff on his phone, which he testified he was doing because Z.B. had asked him to do that; however, Z.B. testified it was Mr. Javer who was directing that text messages be deleted. I accepted Z.B.’s evidence on this issue given my finding that Mr. Javer lied about Z.B. initiating conversations about the two of them having sex. In my view this is another example of Mr. Javer’s grooming behaviour towards Z.B.

[5] A further example of Mr. Javer’s grooming of Z.B. is her text to him asking him for permission to touch herself sexually. In my view these texts demonstrated the control exercised by Mr. Javer over Z.B. in relation to the issue of sex and corroborated Z.B.’s evidence of Mr. Javer being the one who initiated and raised the topic of sex with her. If Z.B. was the one initiating their discussions about sex it would not make sense for her to ask Mr. Javer for permission to touch herself sexually.

[6] There were a number of text conversations about Mr. Javer driving up to Barrie from Toronto for the purpose of he and Z.B. engaging in sexual activity. This finally occurred on March 27, 2022, when he left Toronto at 2:15 in the afternoon. His explanation in a text about why he left so late was because it took him “a bit long” as he “had to shave down there lmao.” Mr. Javer in cross-examination said he remembered this text conversation, which I found was a telling admission as his evidence routinely was he did not recall their text conversations. I found this conversation clearly corroborated the purpose of Mr. Javer coming to Barrie was to have sex with Z.B., who he knew was only 15 years of age.

[7] When he arrived in Barrie, Mr. Javer met Z.B. at a Dollarama Store, gave her $2.00 to help pay for some of the items she had purchased and then they drove to a secluded, remote area, behind a warehouse, where they parked and engaged in a brief sexual encounter. The fact they had not simply remained in the car in the parking lot of the Dollarama to engage in conversation and to meet and get to know one another, in my view put a lie to Mr. Javer’s position he came to Barrie from Toronto, over an hour away, to just meet Z.B. with no intention of engaging in any sexually activity with her. I accepted Z.B.’s evidence and I found it was Mr. Javer who asked her to direct him to a secluded, private area so they could engage in sex.

[8] I accepted Z.B.’s testimony as to what occurred in Mr. Javer’s car. Mr. Javer directed her to get into the back seat and he got in after her. He asked if he could touch her thigh and she said yeah. He took off her pants and she took off her shirt and bra. He touched her breasts with his hands and his mouth. He then slid his hand down into her underwear and he removed them. He started touching her vaginal area with his hand, penetrating her digitally and he also used his tongue. He took his pants off a bit and at some point she said he was wearing a condom. He asked if she wanted to touch his penis and she did end up touching it. He put it in her mouth and then he pushed her back a bit and put his penis in her vagina and had intercourse with her. It was at this point that her mother called her cell phone. She answered and told her mother she was still at the store. After hanging up, Mr. Javer asked her to suck his penis as he did not finish. He put his penis in her mouth and had his hands on the back of her head, pulled her hair and then Z.B. said, he “cummed” on her chest. They then cleaned up, he told her to put on her clothes, she got in the passenger seat, then he drove her home but dropped her a few houses from her house.

[9] A short time after this date she was to get a vaccination at school and was asked if she could be pregnant and at that point her period was five days late. She got upset and her mother was called, and this was when she told her mother what had happened with Teyshawn Rossi. A further text conversation, which I found corroborated Z.B.’s evidence concerning the sexual activity Mr. Javer had with her in the backseat of his car, was when Z.B. advised Mr. Javer her period was late and his response was to tell her they should wait a few more days to see if they needed to be worried. I found Mr. Javer’s evidence that no sexual activity had occurred between himself and Z.B. on March 27, 2022, was a complete lie and falsehood for the numerous reasons I set out in my reasons for judgment.

Position of the Parties

[10] The position of the Crown in this matter is that a six year penitentiary jail sentence is the appropriate disposition, composed of four years for the sexual interference charge and a two year consecutive jail sentence for the luring offence. It was Ms. Dafoe’s submission that the appropriate upper range of sentence was nine (9) years; however, taking into account totality and the mitigating circumstances, a total sentence of 6 years was the appropriate sentence: four (4) years for the sexual interference offence and two (2) years consecutive for the offence of luring. The Crown argued that given the facts in this matter, denunciation and deterrence ought to be the primary sentencing principles to be emphasized by the court. The Crown submitted there should be consecutive sentences for the luring offence to properly account for the distinct legal interests that the luring offence was meant to protect, which is the vulnerability and exploitation of children facilitated by the internet.

[11] The defence did not attempt to diminish in any way the seriousness of the sexual violence committed by Mr. Javer towards Z.B.. It is the defence position that the sexual interference and luring offences were one single criminal adventure, closely linked to each other and therefore any sentence imposed for the sexual interference and luring offences should be concurrent. It is the defence position that the appropriate and fit sentence for Mr. Javer is a global penitentiary sentence of three years. It is the defence position in addition to denunciation and deterrence, I must consider other factors which must be balanced in arriving at a proportionate sentence. Mitigating factors such as Mr. Javer’s youthful age and his lack of a prior record raise the need to consider the sentencing principles of restraint and rehabilitation.

Circumstances of the Offender

[12] Taylor Javer was 25 years of age at the time of the commission of these offences and is currently 28 years of age. He is a Canadian citizen, whose father is from Kenya and his mother is of Indian descent, who had an arranged marriage. He was raised in North York, both of his parents worked, his father was a civil engineer, and his mother was a hairdresser. His childhood was devoid of any financial hardship.

[13] Mr. Javer disclosed at the age of 8 his great aunt would give him lengthy showers where she sexually molested him and would engage in sexual conversations with him and with his sister. He disclosed this to his parents and his father did not believe him, but his mother spoke to the aunt and the showers stopped and her son began to live again at home. Mr. Javer was told to move on and did not receive any counselling for what had occurred. The PSR does not indicate how long these showers went on for or exactly what the sexual conduct by Mr. Javer’s great aunt involved. His aunt died in 2013.

[14] Apparently his sister suffered a psychotic break in her late teens, and she was removed from the family home and hospitalized for treatment. There was no indication how long this occurred or whether his sister still suffers from mental health issues.

[15] Mr. Javer has not been involved in any long terms relationships but has had some brief encounters with age-appropriate women when he attended college. It was revealed by Mr. Javer and his mother, who the probation officer spoke to, that he has never lived independently outside the family home. His father was forced into retirement because of his health, first being diagnosed with lymphoma and subsequently he suffered from a stroke and is paralyzed on his left side. He receives a pension and disability. Mr. Javer provides support in caring for his father, as disclosed by his mother, who indicated Mr. Javer’s absence will cause hardship to their family. His mother continues to work full-time as a hairdresser in a nursing home.

[16] Mr. Javer suffers from a number of health issues: asthma, irritable bowel syndrome, obsessive compulsive disorder, and persistent depressive disorder. In 2021, he also discovered he had testicular cancer and in 2022 underwent surgery. This was confirmed in a letter and conversation with Mr. Javer’s family doctor, Dr. Kathryn Dorman, MD, CCFB. Mr. Javer has been referred to a psychiatrist who identified he suffers from generalized anxiety disorder. Dr. Dorman advised Mr. Javer has decided not to follow a medication regime because of side effects. Dr. Dorman was unaware of any conflicts with the law or any historical sexual abuse.

[17] Mr. Javer graduated from Grade 12 and attended College part-time for four and a half years, completing a Social Service Worker Program at Seneca. He described being bullied in high school and did not have many friends. He worked during 2018 to 2019 in two internships in reception positions at a non-profit organization and a community centre. Since 2019 he has not made any efforts to return to the workforce because of his father’s stroke and his own medical issues and has remained at home. His mother advised he has been living off inheritance funds left for him by his great aunt. He registered for an on-line Pharmaceutical Assistant course at George Brown College a year ago but has not participated because of his legal matters and health conditions.

[18] Mr. Javer was cooperative and forthcoming when interviewed for the PSR. In addressing the charges, he “expressed wrongdoing and regret for having inappropriate contact with a minor.” He blamed being isolated and depressed throughout the pandemic, in addition to having to manage treatment for his cancer. He also said these same things to me at the conclusion of submissions by counsel. He maintained in the PSR that he was unaware of Z.B.’s age or her disability, which was his evidence at trial, and I did not accept or believe him.

[19] The probation officer advised Mr. Javer has never sought counselling for the abuse he endured during his upbringing, nor had he sought any counselling since being charged.

[20] The probation officer, Jennifer Stone, advised in her assessment of Mr. Javer that he “presents as having limited insight into his actions and the harm caused to the victim. Concerns exist, as the victim appears to have been accessed in an opportunistic manner” by Mr. Javer. She indicates there is nothing that would preclude him from being suitable for community supervision. She refers to the fact that despite being found guilty he continues to deny responsibility for the sexual offending. Of course, Mr. Javer is entitled to maintain his innocence, and this is not, in any way, an aggravating circumstance. I will address this issue in more detail later in my reasons.

Victim Impact Statements

[21] Z.B. described how Mr. Javer’s sexual violence towards her continues to impact her negatively, even three years later. She still has nightmares and flashbacks. She indicated she did not know if she could ever have a healthy happy relationship with anyone in the future. She lost her innocence because of what Mr. Javer did to her. She stopped hanging out with her friends, going outside, or taking care of herself. She engaged in self harm and tried to kill herself. She had to live in treatment, which she indicated helped her start to get better. It impacted not only her but also her family, emotionally and financially. Her Dissociative Identity Disorder (Multiple Personality Disorder) symptoms got worse and worse. She described being scared Mr. Javer would come up behind her, every time she sees a car that looks like his car, or she drives by where it happened.

[22] Z.B.’s mother, A.C., described how for two years she was unable to talk to her daughter about what Mr. Javer did and it has only been after Z.B. has received counselling, being in treatment facilities, hospitalizations because of suicide attempts that she and Z.B. are back to their best friend relationship. She described Z.B. still suffering sometimes from night terrors and Z.B. being afraid to walk alone anywhere without being on the phone with someone. A.C. described how difficult it has been for Z.B. because of her autism and how she had worked so hard to overcome what happened to get a job, but she still has panic attacks, still lives in fear. Yet, A.C. described how Z.B.’s strength in sharing her story and hold “Tay” (Mr. Javer) responsible and show him that no one else can be taken advantage of, gave A.C. strength to deal and share A.C.’s story of her own rape 30 years ago, when A.C. was young. A.C. expressed her belief that her daughter will overcome what has happened and will be unstoppable because of her strength that she has shown.

[23] Both Z.B. and A.C. described themselves as Survivors and not victims, which in my view demonstrates the strength each of them has to move forward with their lives and not allow Mr. Javer’s criminal behaviour towards them define who they are in the future.

Sentencing Principles Applied

[24] The purpose of sentencing is set out in sections 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases.

[25] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct; (b) Deter the offender, and others, from committing such an offence; (c) Separate the offender from society, where necessary; (d) Assist in the rehabilitation of the offender; (e) Provide reparation for harm done to “victims”, or the community; and (f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

[26] Pursuant to s. 718.01, when a court imposes a sentence for an offence that involves the abuse of a person under 18 years of age, it “shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” The reason for this is because a conviction for an offence of sexual interference is a serious matter and Mr. Javer’s offence against Z.B. involved his abuse of a person under the age of 18. Courts have very few options other than imprisonment to achieve the objectives of denunciation and deterrence in this context – R. v. Inksetter, 2018 ONCA 474, at para 17. The Supreme Court of Canada in R. v. Friesen, 2020 SCC 100, at para. 5, has held “conditional sentences for sexual offences against children will only rarely be appropriate” and “their availability must be limited to exceptional circumstances that render incarceration inappropriate.” Our Court of Appeal has repeatedly indicated that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults (see R. v. M.M., 2022 ONCA 441, at paras. 13-18; R. v. D.R., 2003 9127 (ON CA), [2003] O.J. No 561 (C.A.) at para 8; R. v. Rafiq, 2015 ONCA 768, [2015] O.J. No. 5878 (C.A.), at para. 27; and R. v. Folino, [2005] O.J. No. 4737 (C.A.), at para. 25). It is my view a conditional sentence would not be an appropriate or a proportionate sentence given the facts and circumstances of this case and that a custodial sentence in “real jail” is necessary to properly address the seriousness of the offence and the high degree of moral culpability of Mr. Javer. It should be noted a conditional sentence was not suggested by the defence as being a proportionate sentence on the facts and circumstances present in this case.

[27] This statutory requirement of giving primary consideration to the principles of denunciation and deterrence had already been recognized in numerous Ontario Court of Appeal sentencing cases prior to the introduction of s. 718.01, including R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 (C.A.). Justice Moldaver, as he then was, held “absent exceptional circumstances, the objectives of sentencing proclaimed in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.”

[28] The Supreme Court of Canada recently in R. v. Friesen, supra, recognized Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirmed the need for courts to impose more severe sanctions for sexual offences against children. The words “primary consideration” in s. 718.01 prescribes a relative ordering of the sentencing objectives set out in s. 718 (a) through (f) (see Friesen, at para. 102). However, the section should not be interpreted as limiting other sentencing objectives, such as separation from society, which reinforces and gives practical effect to denunciation and deterrence (see Friesen, at para. 103 and Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.), at para. 76). The Supreme Court did indicate that “where Parliament has indicated which sentencing objectives are to receive priority in certain cases, a sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority,” although, “the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality” (see Friesen, at para. 104). In Friesen, at para. 105, the Court held, “Parliament's choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause.”

[29] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." (See R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 42 and R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369, at para. 26.)

[30] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)). A number of aggravating circumstances are set out in this section, which are applicable to the factual circumstances of the charges Mr. Javer was convicted of and in my opinion, there are other aggravating circumstances that are not statutorily mandated present on the facts of this case.

[31] According to s. 718.2 (a)(ii.1), evidence that the offender, in committing the offence, “abused a person under 18 years of age,” is statutorily deemed to be an aggravating circumstance of the offence. Therefore, the paramount principles of sentencing in cases involving sexual assaults of young children are denunciation and deterrence. Prior to the enactment of s. 718.01 referred to above, the Ontario Court of Appeal in R. v. Woodward, supra, Moldaver J.A., (as he then was) confirmed:

…when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

[32] More recently in R. v. B.J.T., 2019 ONCA 794, [2019] O.J. No. 4503 (C.A.), at para. 83, Justice Feldman for the Court held:

…sexual interference of a child is a very serious offence. The moral blameworthiness on the part of the adult is because it is the adult’s role to protect the child, not acquiesce where the child may not appreciate the impropriety of the proposed action because of its sexual aspect. Nor should the effect of sexual interference on the child be minimized. In R. v. A.B., 2015 ONCA 803, 333 C.C.C. (3d) 283, at para. 45, I stated:

[T]he protection for children is not simply from sexual exploitation but from any sexual contact or the invitation to sexual contact with adults. Parliament viewed the protection to be necessary because of the inherent power imbalance that undermines consent, and because of the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance.

[33] It should be noted that the mandatory minimum sentence stipulated in s. 151 of the Criminal Code has been struck done by the Ontario Court of Appeal in R. v. B.J.T., supra, as being unconstitutional, as have numerous judges in the Ontario Superior Court and the Ontario Court of Justice. Further, recently in R. v. Bertrand Marchand, 2023 SCC 26, [2023] S.C.J. No. 26, the Supreme Court struck down the mandatory minimum sentence under s. 172.1 as being unconstitutional. In my view, these decisions in no way diminish the seriousness of sexual offences involving young children, particularly given the Supreme Court’s comments in R. v. Friesen, supra, at paras. 116-117, which indicate while sexual violence against either a child or an adult is serious, Parliament has determined that sexual violence against children should be punished more severely.

[34] Finally, s. 718.2(a)(iii.1) provides that evidence the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, is statutorily deemed to be an aggravating circumstance of the offence.

[35] Section 718.2 also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b)), the parity principle; that the combined duration of consecutive sentences not be unduly long (718.2(c)), the totality principle; that an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718.2(d)), and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)), both of these subsections relate to the restraint principle.

[36] In my view the seriousness of the offence of sexual interference, s. 151, is reflected in the maximum sentence of 14 years and the fact Parliament significantly increased the mandatory minimum sentences set out in the Criminal Code for sexual interference offences, despite these minimum sentences being ruled unconstitutional, they clearly reflect Parliament’s view as to the seriousness of sexual offences committed against children.

[37] In R. v. Friesen, the Supreme Court addressed the seriousness of sexual offences involving children. The Court held, sentences for sexual offences against children must increase to properly reflect the gravity of sexual offences against children and the degree of responsibility or moral blameworthiness of the offender (see para. 5). The following sentencing principles were emphasized and reiterated by the Supreme Court:

50 To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important.

51 The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children….

56 This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72"may often be more pervasive and permanent in its effect than any physical harm" (p. 81) (Emphasis added)

57 A number of this Court's decisions provide insight into these forms of harm. In R. v. L. (D.O.), 1993 46 (SCC), [1993] 4 S.C.R. 419, L'Heureux-Dubé J. emphasized the emotional trauma that the nine-year old complainant experienced from sexual violence (pp. 439-42). Similarly, in McDonnell, McLachlin J. (as she then was) stressed the emotional harm of "the violation of the child victim's integrity and sense of self-worth and control over her body" that the child victim experienced as a result of being sexually assaulted while sleeping (para. 111). The likely result of the sexual assault would be "shame, embarrassment, unresolved anger, a reduced ability to trust others and fear that ... people could and would abuse her and her body" (para. 113).

65 The protection of children is one of the most fundamental values of Canadian society. Sexual violence against children is especially wrongful because it turns this value on its head …. (Emphasis added)

74 It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence….

75 In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 43-44). The wrongfulness and the harmfulness impact both the gravity of the offence and the degree of responsibility of the offender. Taking the wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function of "ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused" (Nasogaluak, at para. 42). (Emphasis added)

76 Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case. (Emphasis added)

77 As this Court recognized in L.M., (2008 SCC 31, [2008] 2 S.C.R. 163), violence is always inherent in the act of applying force of a sexual nature to a child (para. 26). Far from removing the violence, the sexual dimension instead aggravates the wrongfulness of the violence by adding interference with the child's sexual integrity to the interference with the child's bodily integrity. Physical contact of a sexual nature with a child always means that the offender has interfered with both the child's "security of the person from any non-consensual contact or threats of force" and the child's bodily integrity, which "lies at the core of human dignity and autonomy" (R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at para. 28; see also McCraw, at p. 83). Such physical sexual contact is also a form of psychological violence precisely because bodily and psychological integrity are closely linked (see Ewanchuk, at para. 28; L.M., at para. 26). The degree of physical interference and the intensity of physical and psychological violence vary depending on the facts of individual cases. However, any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it is not accompanied by additional physical violence and does not result in physical or psychological injury. Courts must always give effect to this inherent violence since it forms an integral component of the normative character of the offender's conduct (M. (C.A.), at para. 80). (Emphasis added)

88 Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child. In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to (Arcand, at para. 58; see also M. (C.A.), at para. 80; Morrisey, at para. 48). For sexual offences against children, we agree with Iacobucci J. that, save for possibly certain rare cases, offenders will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child (Scalera, at paras. 120 and 123-24). (Emphasis added)

[38] It is my view the Supreme Court’s decision in R. v. Friesen is an endorsement and approval of numerous Ontario Court of Appeal decisions, which have long recognized the increased seriousness of sexual offences involving children and the need for exemplary sentences.

[39] I am also mindful of the principle of restraint reflected in R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34, where the Ontario Court of Appeal held:

…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at p. 545.

…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 2006 2610 (ON CA), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

[40] In serious cases and cases involving violence towards children, rehabilitation alone cannot be the determinative factor - general deterrence and denunciation were also significant factors to be considered – now recognized by s. 718.01 as the “primary consideration.” However, as the Ontario Court of Appeal ruled in R. v. Dubinsky, 2005 5668 (ON CA), [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

[41] Of course, I must always consider the sentencing principle of rehabilitation, particularly given Mr. Javer is a first offender, however, any sentence imposed must be grounded in the facts of Mr. Javer’s case and be proportionate to the gravity of the offences committed by Mr. Javer and his moral culpability. As indicated in R. v. Woodward, supra, at para. 76: “While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.”

[42] Bearing in mind these sentencing objectives and principles, I turn now to a consideration of the aggravating and mitigating circumstances in this case.

Mitigating and Aggravating Circumstances

[43] Taylor Javer was 25 years of age at the time of the commission of these offences and is currently 28 years of age. He is a first offender and does not have a criminal record. He has been on a release order since his arrest in June 2022. He has not breached any of the conditions of his surety release. These are mitigating circumstances.

[44] Mr. Javer has the support of his mother as reflected in the PSR. He lives at home with his parents. His father has suffered a stroke, which caused him to be paralyzed on his left side and is no longer working. Mr. Javer provides support for his father. In my view these aspects of Mr. Javer’s current family circumstances are somewhat mitigating. Mr. Javer has not worked since 2019 and basically remains at his home.

[45] He suffers from a number of health difficulties, most recently testicular cancer for which he received surgery. He was referred to a psychiatrist, who diagnosed him as suffering from a generalized anxiety disorder. He was prescribed medication, but he does not comply with the doctor’s recommendations. His mother described him being depressed prior to the criminal conduct and indicated the pandemic was quite difficult for him. It is clear from the PSR that Mr. Javer needs counselling, which he indicates he is prepared to become involved in.

[46] Mr. Javer also described being sexually abused by his great aunt that he was living with when he was around 8 years old, which he disclosed to his mother, and she confronted the aunt, the abuse stopped, and Mr. Javer returned home to live with his mother and father. He has not sought counselling for this. Further, I understand from the PSR he has not sought any counselling concerning the charges before the court.

[47] It should be noted that Mr. Javer did not plead guilty, express remorse, or accept responsibility for his actions towards Z.B. He continues to maintain his innocence, which he is entitled to do. This is obviously not an aggravating circumstance; however, it does distinguish this case from those cases where mitigation exists as a result of the offender accepting responsibility, expressing remorse, and demonstrating insight into the underlying behaviour they have engaged in. As expressed by the Ontario Court of Appeal in R. v. Shah, 2017 ONCA 872, [2017] O.J. No. 6141, at para. 8:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, 1999 1885 (ON CA), [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P. (2004), 2004 33468 (ON CA), 190 O.A.C. 354 (C.A.), at para. 2.

[48] As indicated in Shah, Mr. Javer’s potential for successful rehabilitation is directly related to his level of insight and awareness into what precipitated his luring and sexual interference of Z.B. Further, the luring and grooming conduct by Mr. Javer occurred over a period of 4 months and although the sexual interference, invitation to sexual touching and sexual assault occurred over a relatively brief period of five to seven minutes, in my view Mr. Javer engaged in sexual violence towards Z.B. at the highest level of seriousness, involving digital penetration, cunnilingus, fellatio, and full vaginal sexual intercourse.

[49] Under s. 718.2(a)(ii.1) the fact Taylor Javer “abused a person under 18 years of age” is a statutorily aggravating circumstance. I found Mr. Javer knew Z.B. was only 14 years of age when he first started communicating with her over Omegle, and that she was only 15 years old when he drove to Barrie from Toronto and engaged in sexual activities with her, including full vaginal intercourse.

[50] In Friesen the Court recognized that the wrongfulness of sexual violence towards children is not determined by the type of physical act and harm to the child, as this can lead to underemphasizing the emotional and psychological harm to the child that all forms of sexual violence can cause. As a result, the Supreme Court cautioned about the dangers of defining a sentencing range based on penetration or the specific type of sexual activity in issue. The Court did acknowledge however, that the degree of physical interference is a recognized aggravating factor on sentence, as it reflects the degree of violation of the child’s bodily integrity. It also reflects the sexual nature of the touching and its violation of the victim’s sexual integrity. Mr. Javer engaged in the complete range of physical interference of Z.B. from removing her clothing and under garments to sexual touching to fellatio and cunnilingus to digital penetration of Z.B.’s vagina to full vaginal intercourse. It is my view Mr. Javer’s sexual violence towards Z.B. was a very serious aggravating circumstance, which reflected a high degree of violation of her bodily integrity and her sexual integrity, and this must be considered in determining a proportionate sentence.

[51] A further serious aggravating circumstance in this case is Z.B.’s autism and Dissociative Identity Disorder (multiple personality disorder), which Mr. Javer was fully aware of when he was grooming her to engage in sexual activities with him. This is a serious aggravating factor because of Z.B.’s increased vulnerability. It is my view that Mr. Javer used and manipulated Z.B.’s mental health issues for his advantage.

[52] Taylor Javer’s sexual assault has had and continues to have a significant impact on Z.B. and her mother, which is an aggravating factor to be considered under s. 718.2(a)(iii.1). The significant impact of a sexual offence on a young person is clearly recognized in R. v. Friesen, in terms of not only physical harm but also the emotional and psychological harm caused by sexual violence against children. Z.B.’s and A.C.’s VISs clearly reflect the emotional and psychological harm caused to Z.B.. The Court focused attention on two kinds of harm: harm that manifests itself during childhood, and long-term harm that only becomes evident during adulthood (see paras. 80-81). Further, in Friesen the Court recognized that the “ripple effects of sexual violence against children can make the child’s parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence….The harm to parents’ relationship with their children can also be profound.” (at para. 63) This negative, harmful impact is present in this case and is a further serious aggravating circumstance.

[53] Finally, this was not a momentary or opportunistic decision on the part of Taylor Javer. His grooming behaviour towards Z.B. went on for four months and his decision to drive for over an hour to Barrie from Toronto demonstrates a high level of deliberateness and planning on his part. As I will discuss further it is my view that the sexual violence perpetrated by Mr. Javer on Z.B. was only made possible because of the grooming behaviour he engaged in over that four month period of time. This is also an aggravating circumstance to be considered in the determination of a proportionate sentence.

Determination of a Proportionate Sentence

[54] I was provided numerous cases by both counsel dealing with cases involving the sexual assault and sexual interference of children. Of course, no two cases are identical.

[55] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime (see R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 92).

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[56] Consequently, a proportionate sentence in each case, in large measure, is determined by the specific and unique facts and circumstances surrounding the offender and the commission of the offences. It is clear from a review of the caselaw involving sexual offences of young children under the age of 18 that generally these offences have been increasing over time and the community are becoming increasingly aware of the negative impact of such abuse on children.

[57] As indicated above the Supreme Court in R. v. Friesen held that sentences for sexual offences involving young children must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence.

[58] In 2015, Parliament increased the maximum sentence for the offence of sexual interference and for the offence of luring where the Crown proceeds by indictment to 14 years imprisonment, from the previous maximum sentence of 10 years. In Friesen the Supreme Court made it very clear that the sentences imposed for sexual offences against children must be increased. What is clear is that the sentence imposed must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence towards children. As indicated in Friesen, at para. 75,

[59] -Taking the wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function of "ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (Nasogaluak, at para. 42).”

[60] There can be no doubt that the gravity of offences involving sexual violence against children is extremely high. Equally clear is the very high level of moral culpability or responsibility of an adult offender where the offences involve sexual violence against a child. In addition, Mr. Javer spent four months luring and grooming Z.B. and as a result he was able to carry through with his intention to engage in sexual activities with her. It is my view that Mr. Javer’s luring conduct towards Z.B. demonstrates a very high level of moral blameworthiness given the deliberateness and planning involved in influencing her to engage in sexual activities with him. It is also my view, given the evidence provided concerning Mr. Javer’s emails and social media interactions with Z.B., he can appropriately be described as a sexual predator, who preyed on Z.B. for the sole purpose of luring and manipulating her to have sexual relations with him, fully knowing her age was below the age of consent.

Should the Sentences Imposed for the Offences of Sexual Interference and Luring be Consecutive or Concurrent?

[61] In Friesen the Supreme Court briefly addressed this issue observing that “offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences” (see para. 155). However, the Supreme Court held because this issue was not properly discussed and dealt with by either the sentencing judge or the Manitoba Court of Appeal, the Supreme Court decided not to analyze the issue further as it did not affect the outcome of that case and was not argued adequately before them. Determining whether sentences should be consecutive or concurrent is a fact-specific inquiry to be undertaken in the context of each case (C. C. Ruby, Sentencing (10th ed. 2020), at s.14.13).

[62] This issue of consecutive versus concurrent sentences was ultimately argued again 2023 in R. v. Bertrand Marchand, supra, where the Supreme Court held that the sentencing judge erred in imposing a concurrent sentence for luring to the offence of sexual interference having regard to the facts in that case. The Supreme Court commended the sentencing judge’s approach of first determining the appropriate sentence for each offence, as this sequential approach ensured a separate consideration of the fit and appropriate punishment of each offence and considered the separate objectives and distinct criteria for the luring offence. It was appropriate to examine each offence individually "in order to understand properly the weight this offence [luring] contributes to the offender's moral blameworthiness" (R. v. Rayo, 2018 QCCA 824, [2018] Q.J. No. 4202, at para. 55; Bertrand Marchand, at para. 92)., and the Supreme Court found “to properly account for the distinct legal interests that the luring offence protects, the sentences should have been consecutive” (at para. 94)

[63] The Supreme Court has noted that "[e]ven in child luring cases where all interactions occur online, the offender's conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm" (Friesen, at para. 82, citing R. v. Rafiq, 2015 ONCA 768). In Bertrand Marchand the Court held at para. 38:

Child luring can also cause distinct psychological and developmental harms to young victims that differ in two main ways from harms arising from sexual contact initiated in person. First, online communication allows "for abusers to get into the victim's head and abuse remotely" and for "manipulation and control over time" which can lead to serious and lasting psychological consequences (Rafiq, at para. 44). Because the communications in luring often intentionally emulate positive relationships, it can be difficult for victims to trust anyone intimately following this experience.

[64] Children are vulnerable to online manipulation. The luring offence is designed to help keep children safe. As expressed in Bertrand Marchand at para. 7:

The online world and digital communications between adults and children warrant special regulation because children are particularly vulnerable to manipulation in online settings (R. v. Rayo, 2018 QCCA 824, at para. 141, per Kasirer J.A.). The internet has infinitely expanded the opportunity for offenders to attract or ensnare children and the enactment of a distinct crime protects them from the possibility of sexual exploitation facilitated by the internet (R. v. Reynard, 2015 BCCA 455, 378 B.C.A.C. 293, at para. 19). The luring offence helps keep children safe in a virtual environment and was intended to meet "the very specific danger posed by certain kinds of communications via computer systems" (R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 36, per Doherty J.A.).

[65] The Supreme Court in Bertrand Marchand further held the luring offence that preceded or produced the sexual interference is not “subsumed or supplanted” within the sexual interference sentence. This is because the luring offence “protects a distinct social interest and causes distinct harms compared to the secondary offences” (Bertrand Marchand at para. 96; Rayo, at paras. 130 and 134). The Supreme Court held that even if the two offences are part of the same criminal transaction they can be sentenced consecutively. “Parliament intentionally targeted conduct that precedes the commission of the enumerated sexual offences and seeks to protect children from the possibility of sexual exploitation facilitated by the internet…. luring can cause distinct harms as a result of psychological manipulation. As such, in most cases luring will attract a consecutive sentence (Rayo, at paras. 133-143.) As noted in Rao, the distinct offence of luring may seem to go unpunished, at least in part, where the luring sentence runs concurrently to the sentences for the related offences.” (Bertrand Marchand at para. 97 [Emphasis added]). See also R. v. D’Orazio, [2024] O.J. No. 610 (SCJ, Leibovich)

[66] This does not mean sentences for luring must always be consecutive, but where a sentencing judge exercises their discretion to impose a concurrent sentence, the judge must provide an explanation for the reason this was done (at para. 98).

Sentence Imposed

[67] I have considered the totality of the evidence presented in this trial respecting Mr. Javer’s criminal conduct towards Z.B. and I further take into account the aggravating and mitigating circumstances present, in determining a proportionate sentence for the sexual violence perpetrated by Mr. Javer towards Z.B. As I have discussed the offences of sexual interference and luring are extremely serious and the gravity of sexual offences against children is exceptionally high. The degree of responsibility and moral blameworthiness of these offences is also extremely high for adults who commit sexual offences against children.

[68] As I have indicated the sentencing principles of denunciation and deterrence are of paramount importance and priority in my determination of a proportionate sentence. Although I must also consider the principles of restraint and rehabilitation, given he is a youthful first offender, which I do, these sentencing principles are in no way on an equal or higher priority. Further, given Mr. Javer’s lack of insight and awareness respecting his criminal conduct perpetrated towards Z.B. and my concerns respecting the risk of his engaging in similar behaviour in the future, it is my view his successful rehabilitation is uncertain and problematic. However, this will be a first sentence of imprisonment, which the provisions of ss. 718.2(d) and (e) require a sentencing judge to exercise restraint.

[69] Considering the aggravating and mitigating circumstances present in this case it is my view that the appropriate, proportionate sentence for the sexual interference offence committed by Mr. Javer is four (4) years in the penitentiary, having regard to Z.B.’s age, the fact Z.B. is particularly vulnerable because of her autism and mental health issues, which Mr. Javer used to carry out his intention, the nature of the sexual violence perpetrated by Mr. Javer towards Z.B., which included his removing Z.B.’s clothes, the sexual touching of her breasts, cunnilingus, fellatio, digital penetration of her vagina with his fingers and full sexual vaginal intercourse, all of which were engaged in by Mr. Javer with her, and the continuing serious emotional and psychological impact and harm Z.B. suffers from. I am also taking into account the mitigating circumstances present in this case. Mr. Javer is a youthful, first offender, who has never been sentenced to a jail sentence of any length, let alone a penitentiary jail sentence. It is my view that the sentence submitted by the defence does not adequately address the paramount sentencing principles of deterrence and denunciation, which the Criminal Code now mandates must be given primary consideration in determining a proportionate sentence.

[70] In respect to the luring offence, it is my view that the appropriate, proportionate sentence is a two (2) year consecutive sentence in the penitentiary. It is my view the sentence for luring must be consecutive given the different objectives of this offence and the “distinct legal interests” sought to be protected. It is my view the luring perpetrated by Mr. Javer in this case demonstrates clearly the ”distinct harm” caused Z.B. by Mr. Javer’s luring and grooming behaviour, compared to the harm caused by the secondary offence, in this case sexual interference, sexual assault and invitation to sexual touching.

[71] Consequently, I am imposing a total sentence of six (6) years in the penitentiary.

Released: September 11, 2024 Signed: Justice Peter C. West