R. v. Riffon, 2014 ONCJ 262

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Paul Riffon

Before: Justice C.S. Dorval

Reasons for Sentence released on: January 29, 2014

Counsel:

• Mr. B. Lee-Shanok, for the Crown
• Ms. Susan Richer, for the accused Paul Riffon

DORVAL, J.:

[1] Guilty Plea

1Mr. Paul Riffon entered a plea of guilty of possession of child pornography under s. 163.1 of the Criminal Code of Canada.

The Facts

2On March 21, 2011, Mr. Riffon purchased a DVD of a movie which contains child pornography. On April 3, 2011, he purchased an additional movie containing child pornography. On this occasion, the movie was simply downloaded to his computer. Although the website made it clear that the movies depicted child nudity, it claimed that they were "legal". Mr. Riffon purchased the movies using his own name and address for delivery. On August 2, 2012, police executed a search warrant at the residence of the Defendant and seized an external hard drive on the computer desk in his office. This hard drive contained the movie purchased as well as numerous images of child pornography. Many of the images were stored in a folder labelled: "to be sorted".

3The images of child pornography on that hard drive include that of a child in diapers with a man's penis in his mouth, a 3 to 4 year-old child with a man's penis in his mouth, a boy of approximately 5 years of age with a penis in his anus. Other images depict a 3-4 year-old girl holding a man's penis: her mouth, chest and stomach appear to have ejaculate on them, as well as a young boy performing oral sex on another.

4Police seized two more hard drives and the DVD of the movie purchased in a drawer in the Defendant's bedroom. Three more external hard drives were found in the garage. A forensic analysis of the hard drives was completed. A total of 7,677 unique images of child pornography were found (total of 11,339 images including duplicates) and 5,608 images depicting child nudity (total of 10,573 including duplicates). There were 26 movies depicting child pornography and 26 movies depicting child nudity on the hard drives. The hard drives also contained pornographic material.

5In addition, an assortment of bondage paraphernalia was seized from the Defendant's bedroom. Books on spanking of children were seized. In addition, a number of rifles, ammunition, air pistols and rifles were located and seized. The firearms were registered.

6The Court was asked to view a selection of images. It was agreed by both Counsels that these images were representative of the nature of the child pornography contained in the hard drives. Most of the images depicted children performing sexual acts with other children or adults, including fellatio and anal intercourse. Several images depicted children in bondage. A few depicted images of children alone, with focus on the genitalia.

The Offender

7Mr. Riffon is 66 years of age. He has been retired for 3 years and lives alone in a house he shared with his aunt for the last 11 years. His aunt passed away and he inherited the house. He was married at age 28 for two years. His next long term relationship was at the age of 34. That relationship lasted 9 years.

8Mr. Riffon does not suffer from addictions. As a result of an industrial accident, he continues to suffer from hearing loss. He is otherwise healthy. He has never received any psychological or psychiatric treatment.

9The Defendant was referred by his lawyer and his family doctor for assessment, but ultimately, the Court ordered a sexual behaviour assessment under s. 21 of the Mental Health Act. Dr. Fedoroff conducted the assessment. His report was filed as Exhibit 1.

10Dr. Fedoroff received a police synopsis and the case report of the analysis of the hard drives. Mr. Riffon admitted responsibility for the possession of pornography to Dr. Fedoroff, but more specifically, mentioned child pornographic images of 10 to 14 year-old boys. He stated that he enjoyed videos and photos of boys but not of any sexual activity. He first became aware of this problem when he was 25 but does not believe it has gotten worse. He acknowledged that the reason he was now being assessed was for sentencing purposes. He stated that he had ordered the two movies from the website as they were described as legal, but would not have done so had he known they were not. He told Dr. Fedoroff that he is not sexually aroused by the pornographic material. He claims to be interested exclusively in females.

11Mr. Riffon's claims were not borne out by the phallometric testing. He did respond to video stimulus of adult women as opposed to men. Video stimulus of children is not used in phallometric testing. He did respond to audiotape stimuli between a man and a female child in scenarios involving non-physical coercion, sadism and assault. This resulted in a positive Pedophile Assault Index. He also responded to the audiotapes of a man and a male child, in a variety of scenarios which resulted in a positive Pedophile Index and Pedophile Assault Index. Mr. Riffon also responded significantly to the audiotapes depicting masochist sexual relations between two men as well as between a man and a woman. Dr. Fedoroff concluded that the Defendant's primary sexual arousal was to adult women and to sadomasochistic themes. His greatest arousals to pedophilic tapes were the ones involving coercion, especially of female children.

12Given the nature of the child pornography in his possession and the results of phallometric testing, I do not accept Mr. Riffon's claim that he enjoys the images depicting the beauty of youth and that he is not aroused by these images. Mr. Riffon admits interest in masochism, sadism, bondage and domination. This sexual paraphernalia is consistent with this interest. He admitted to Dr. Fedoroff that he had an extensive collection of adult pornography of that nature. He did not refer to his possession of images of children in bondage, nor did he admit that he was in possession of books on spanking children when he is not a parent. In fact, when Dr. Fedoroff pointed out that child pornography depicts child abuse, he stated that he would not have purchased the material if he had known it was illegal and that most of his collection was that of face portraits of clothed adolescent males. This is simply not true. Face portraits are not pornography. The nature of the pornography depicting sexual acts being performed on children and by children leaves no doubt as to its illegality. Mr. Riffon kept this material knowing it was child pornography. He was in possession of almost six thousand images of child pornography in addition to five thousand images of child nudity. One does not keep over 12,000 images of children for the purpose of admiring youth. Why would he keep images of children involved in sexual activity to admire youth? The number of images, the nature of the images and his books on spanking children belie Mr. Riffon's claims.

Position of the Parties

13The Crown submits that a period of incarceration in the range of 18 to 24 months is warranted by the number of aggravating factors in this case. The Crown argues that the range of sentences for possession of child pornography has increased over the last few years.

14The Defence submits that the range of 4 to 9 months would reflect the gravity of the offences and satisfy the principles of general deterrence and denunciation while exercising restraint in the use of incarceration.

The Law

15Both Counsels have provided casebooks to assist the Court. There is no dispute as to the main principles of sentencing in this area. Our appellate courts have outlined the harm caused by child pornography and the need to denounce and deter those who would use the vulnerability and helplessness of children for sexual gratification. See: R. v. E.O.; R. v. Lea, 2005 O.J. No. 3306 (ON CA); R. v. Nisbett, 2011 ONCA 26.

16In an early decision after the coming into effect of the child pornography provisions, the Ontario Court of Appeal in R. v. Stroempl agreed with the trial judge's focus on general deterrence and denunciation and stated at paragraph 8:

The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense possessors such as the appellant instigate the production and distribution of child pornography - and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place.

17Some fifteen years later, in R. v. Nisbet, 2011 ONCA 26, the endorsement of the Court is succinct. It stated at paragraph 1: "Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence."

18In R. v. Foley, 2013 O.J. No. 411 (OCJ), Justice Renaud explains the objectives of denunciation as follows at paragraph 21:

When denunciation is viewed as an exercise in communication, one of the lessons that emerge is that a cardinal element of sentencing that is fundamental to the preservation of the Canadian community is the continued development of an unwavering understanding of what actions are positive in nature and which are inimical to the public weal. As stated earlier, sentencing must advance the societal goal of promoting "a just, peaceful and safe society." In this sense, judges are instructed to address the imperative need to denounce emerging threats to the well-being of the community and, as well, to alert the whole of the citizenry to the fact of new threats to the safety of all and in particular to the safety of many vulnerable victims.

19Section 718.01 of the Criminal Code now incorporates the primacy of denunciation and deterrence as principles of sentencing when dealing with the abuse of a person under the age of 18. I agree with Justice Renaud when he stated at paragraph 34 of R. v. Foley (supra):

In my view, with great respect to those who hold the contrary view, the mere fact of possessing (and of accessing) child pornography is to engage in the type of inimical conduct which s. 718.01 of the Code seeks to eliminate. The babies, toddlers, young children and adolescents whose victimization is captured forever by these images and technology are further harmed with each viewing and act of acquisition, leaving aside transmission which is not in issue in this case.

20Having concluded that s. 718.01 applies to the possession of child pornography, I must assign greater priority to the principles of denunciation and deterrence than to other principles of sentencing enumerated in s. 718 of the Criminal Code.

21In R. v. Bock, 2010 ONSC 3117, Justice Henderson reviews a number of decisions and concludes that the range of sentence for a first offender convicted of possession of child pornography is that of six to eighteen months of incarceration. The range of 18 to 36 months is applicable to the offence of making child pornography available to others.

22The Crown submits that the range of sentence for possession of child pornography has increased. My review of the cases provided by both counsel does not reflect a consistent application of a greater range of sentence.

23In R. v. Dean, 2010 O.J. No. 5305, Justice Ratushny of the Superior Court of Ontario acknowledged the range of sentence for possession was that of 6-18 months. She imposed, however, a sentence of 3 years for possession of child pornography to reflect a number of aggravating circumstances including the vast number and nature of the images and the total lack of insight from the Defendant.

24Ms. Richer for the Defence submits that the case, which is most similar to this one on its facts, is that of R. v. Lane, 2013 ONCJ 111. Although the Defendant in that case was of similar age and the quantity of child pornography was considerable, I found that the distinctions were significant. The nature of the child pornography was less aggravating: 94% of it was child nudity with a focus on the genitalia. The Defendant suffered from skin cancer, which required treatment on an ongoing basis, and he was also the caregiver to a brother who had suffered a stroke. The Defendant had a history of volunteer work, which included involvement with Big Brothers for 10 years, and coaching youth in baseball and hockey. There was no suggestion of any impropriety in his work with young people. He had received counselling and the trial judge accepted that he showed remorse and a real understanding of the harmful nature of his conduct.

25I have found, however, that recent comments of the Ontario Court of Appeal seem to suggest that the proliferation of offences of this nature justify an increase in the range. The endorsement in R. v. Nisbett (supra) previously quoted at paragraph 17 of this judgment is one example. Justice Epstein in his dissenting opinion in R. v. M. (P.), 2012 ONCA 162 stated at paragraph 118: "As noted by my colleague, recent amendments to the Criminal Code and decisions of this court have signalled a determination to address, in a more powerful and effective fashion, the need to denounce and deter crimes that involve the sexual victimization of children."

26I acknowledge that the case of R. v. M. (P.) (supra) is distinguished on its facts, but Justice Epstein's statement in conjunction with recent sentencing cases reflects a shift in the understanding of the seriousness of the offence of possession of child pornography.

Analysis and Conclusions

27I refer to Justice Molloy's list of aggravating and mitigating factors as set out in R. v. Kwok in assisting the Court in my analysis of the factors before me.

28Mr. Riffon does not have a criminal record for this type of offence. His only prior conviction is that of impaired driving. There is no evidence of distribution or "sharing" of the child pornography in his possession. The Defendant's collection of child pornography was large and its nature was serious. Sentences for this offence cannot be based on a mathematical formula based on the number of images in possession of the Defendant. The size of the "collection" is a factor to consider in assessing the extent of the sexual interest in children, and the extent of the victimization of children by the offender. Mr. Riffon's collection in excess of 7,600 unique images is a large quantity of images. All types of child pornography have serious consequences, but the existence of child pornography depicting bondage is particularly aggravating.

29Mr. Riffon purchased two movies that constituted child pornography. I accept his statement that he would not have purchased the movies had he known that they constituted child pornography, but not for the reasons he advanced to Dr. Fedoroff. Mr. Riffon purchased these two movies using his name and personal information. There were 26 movies depicting child pornography in his possession, with unknown sources, therefore, he had previously acquired child pornography movies. Perhaps had he known that the movies constituted child pornography, he would have chosen not to purchase the material using his own name, and thereby create a direct evidential link to him? I note that the movies in question were found in his possession some 17 months after the date of purchase. He did not discard the movies once it was clear to him that they constituted child pornography, but added them to his "collection". He purchased the movies and thereby contributed to the sexual victimization of children for a commercial purpose.

30According to Dr. Fedoroff, Mr. Riffon is at a low risk to reoffend. His opinion is based on the Defendant's age as well as the sexual behavior assessment conducted. As I noted previously in these reasons, I reject Mr. Riffon's statement to Dr. Fedoroff that he is not sexually aroused by the images of child pornography. I also note that notwithstanding that his greatest responses during the phallometric testing was to that of women, he did respond to the child pornography scenarios to a degree sufficient to warrant a Pedophilic Index. Dr. Fedoroff stated, at page 13 of his report, that Mr. Riffon's primary psychiatric problem is a fascination with youth, which he suspects is sexually motivated. On this point, I echo the words of Justice Clark in R. v. Smith, 2008 80 W.C.B. (2d) 592 at paragraph 36: "With respect, measured against the admitted facts, that proposition merits, in my view, much more than the mere suspicion it raised in the doctor's mind; rather, it is, objectively viewed, an obvious and compelling inference."

31Mr. Riffon showed no understanding of the victimization of children through child pornography. When Dr. Fedoroff pointed out the nature of the abuse, he denied the intentional purchase of child pornography. The low risk he poses may well be attributed to his age and to the consequences of these charges as opposed to genuine remorse and contrition. He has accepted counselling and is prepared to continue counselling with Dr. Fedoroff who is gradually educating Mr. Riffon as to the abuse perpetrated on children depicted in child pornography.

32Mr. Riffon entered a plea of guilty to this charge. Logistics prevented his plea from being entered at an early opportunity, but it was made clear from an early stage that he would do so. He has led a productive and law abiding life. He has no family and leads a secluded and lonely life, with few friends.

33I conclude that the proper sentence is that of 15 months of incarceration less the pre-disposition custody. I give 10 days credit for pre-disposition custody, therefore, the sentence is 14 months and 20 days.

Sentence and Conditions

34I impose 18 months of probation with the following conditions:

• Statutory conditions
• To report to the Probation Officer within 48 hours of your release from custody and thereafter as required by the Probation Officer
• To attend for any counselling, treatment or programs directed by the probation officer, including sexual behaviour counselling with Dr. Fedoroff or his designate
• You are not to be in possession of any computer device
• Internet services can only be accessed at the Ottawa Public Library or the John Howard Society
• You must sign any release or consent required by the Probation Officer to monitor compliance with these conditions

35I grant the Crown's Application for DNA. I grant the Crown's Application for forfeiture of all the hard drives seized by the police and permit destruction of same except for any file folder containing family photos. The isolation of such data is to be performed at the expense of the Defendant.

36I make an Order under SOIRA for a period of 10 years, and an Order pursuant to s. 161 of the Criminal Code for a period of 5 years.