R. v. Fiaoni, 2013ONSC 3014

Court File No. CR-10-08368

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

ALEXANDER FIAONI

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE M.L. EDWARDS

ON DECEMBER 18, 2012, AT NEWMARKET, ONTARIO

APPEARANCES:

G. Sang Counsel for the Crown

B. Cunningham Counsel for Alex Fiaoni

TUESDAY, DECEMBER 18, 2012

R E A S O N S F O R S E N T E N C E

Edwards J. (Orally):

There are likely very few Canadians who do not have access to the internet. In many ways, the internet has revolutionized how we as a society go about our daily lives. Students use the internet as a substitute for using the library to do their research. We pay our bills online and we do our banking on the internet. We can speak to friends and relatives on the other side of the world using the internet. We can get hourly weather reports on the internet. We can book theatre tickets online on the internet. These are just a few of the ways some may say the internet has improved our lives.

But the internet has, what I would describe, as a dark side. It has regrettably made accessing child pornography an easy task for anyone perverted enough to participate in the victimization of the most vulnerable in our society, our children. As the Court of Appeal said in R. v. D.G.F [2010] ON No. 127:

“Over the last two decades, courts have been on a learning curve to understand both the extent of the creation and dissemination of

child pornography over the internet and to address the problem appropriately.”

The twenty-first century is now well on its way and the message does not seem to have made its way to those who use the internet in a manner it was never intended for. Parliament has now mandated, in section 163.1(4.1)(a), a minimum sentence of 45 days for anyone convicted on indictment of possession of child pornography. It is therefore no longer an option to consider a conditional sentence as was the case in the past. The requirement to impose a minimum sentence must be seen as a clear message from Parliament that possession of child pornography is to be considered a serious crime.

Mr. Fiaoni was not convicted of distributing child pornography. Nonetheless, he has participated, whether it be wittingly or unwittingly, in the perpetration of the ongoing victimization of innocent children. Every time someone accesses a photograph or video of a child forced to participate in an act of sexual deprivation, that child is re-victimized. While Mr. Fiaoni did not actually participate in the process of photographing or videotaping children losing their innocence, he like others who access child pornography on the internet, encourage others to produce such filth. By downloading and possessing such images found in his possession, Mr. Fiaoni and others like him have participated in what might be best described as a never ending virtual rape. These children can never recover their innocence as the internet is never ending. The task that courts face in dealing with child pornography is to make clear that those who possess images of children victimized in ways beyond comprehension are part of, what I describe, as a depraved “food chain”. The “food chain” would not exist if there was no market for this vile product. In that regard, I can do no better than reproduce the words of Justice Malloy in R. v. Kwok:

“Vast strides have been made by dedicated law enforcement officials worldwide to curb this ever-increasing Internet plague. However, catching the perpetrators and abusers after they have violated children and spread their pictures all over the Internet is not enough. Ways must be found to deter would-be pornographers. One way of doing so is by deterring those who are interested in acquiring the pornography. It is unlikely that anyone ever starts with creation of pornography, or distribution of pornography. The overwhelming majority will have started by simply looking at pornography created by someone else, then by swapping pornography with like-minded people, and only then moving on to actually creating the pornographic images for others by torturing and raping children in front of a camera. People who set about to access and collect pornography victimizing children must be made aware that the courts do not see this as a minor, or victimless, crime. It is a reprehensible crime and must be dealt with severely for the protection of society as a whole and of its most vulnerable members, our children. It is crucial to deter people at the entry level from ever possessing child pornography. Perhaps by killing, or at least diminishing, the market for child pornography, the production side can also be curbed.”

I am under no illusion that my words and the ultimate sentence that I intend to render in this case will make any fundamental change in the underworld of child pornography. Nonetheless, it is clear to me that the most fundamental principle in sentencing those convicted of an offence related to child pornography must be general deterrence and denunciation.

Let me move now to the facts of this particular case. Mr. Fiaoni is a first offender with no prior criminal record. He is 38 years of age. He had been gainfully employed as a sales clerk with a clothing retailer for approximately ten years prior to his arrest. His employment was terminated in 2009 as a result of his arrest relating to the current matter before this court. He is single and he resides at home with his parents. Mr. Fiaoni has the support of his parents who have provided their moral support by attending court for his various attendances. Undoubtedly, his arrest must have tried their love and devotion to him.

At the time of his arrest, Mr. Fiaoni had accessed the internet on numerous occasions when he had downloaded what can only be described as a significant volume of pornographic images, depicting children in various acts of depravity. These images included:

(a) Videos depicting sexual acts by male adults on pre-pubescent females, including intercourse;

(b) A video depicting a father having intercourse with his four or five year old daughter;

(c) Nine child pornographic videos in a saved folder, including a slide show type video on how to sexually assault a daughter with ideas to hide from one’s wife and items to use on her;

(d) Video involving a pre-pubescent girl and an adult male in which the girl is observed removing her clothes and exposing her vaginal area and thereafter the girl having oral sex with the male;

(e) Photographs including images of young females ranging in age from pre-pubescent females in diapers to pre-pubescent females under the age of two to ten with images depicting these pre-pubescent females posing naked, masturbating, providing oral sex to adult males, and having anal and vaginal intercourse with adult males;

(f) A video depicting various sexual acts including an adult male ejaculating on a young girl’s face and oral sex being performed on the adult male;

(g) A further video of a female identified as being four years of age providing oral sex on the adult male and the adult male having sexual intercourse with the four year old female; and

(h) A video with a slideshow with tips and techniques on sexually assaulting a pre-teen daughter, including items required, such as a lubricant. The video also includes segments based on ages ranging from infants to three years old with child pornographic images and a narrative text detailing items that can be used as sexual devices to be inserted into the young females.

In total, seized from Mr. Fiaoni’s computers, were approximately 114 videos and 895 photographs, depicting child pornographic images.

I was referred to numerous other cases involving the sentencing of an accused convicted of an offence related to the possession of child pornography, and each case is unique. Each case had differing numbers of images ranging from just a few photographs to literally thousands. While the quantity of the images found in the possession of an accused does appear to have been a consideration in the determination of the appropriate sentence, this court suggests that the possession of just one image of a child being forced to participate in such an act of depravity is too many. Nonetheless, I accept that the jurisprudence does seem to categorize the volume of images into what may be loosely described as a small, medium, or large volume. On the facts before me, the volume of images found in Mr. Fiaoni’s possession was neither small nor large.

Let me move to what I will describe as the mitigating and aggravating factors of this case. This court must recognize that there are factors that both mitigate and aggravate the sentence to be imposed. The mitigating factors include:

(i) While Mr. Fiaoni is not a young offender, he does have most of his adulthood ahead of him and he has no prior criminal record;

(ii) He comes from a supportive family;

(iii) He appears to be a reasonably well educated and an intelligent individual;

(iv) He pleaded guilty at a point in time that both the Crown and defence suggest was the earliest time that he could plead guilty; and

(v) The Pre-Sentence Report is a relatively positive report.

On the other hand, there are factors that do constitute aggravating factors and they are as follows:

(i) Mr. Fiaoni had in his possession a mid-range collection of child pornographic images. The size of his collection does not suggest an inadvertent viewing of such material, but rather, a progressive dependence on child pornography;

(ii) The victims depicted on these images were of the youngest age one could imagine, ranging in age from pre-pubescent females in diapers (i.e., under the age of two) to children that would appear to be ten years of age;

(iii) The nature of the depraved acts that some of these children were forced to participate in as I’ve noted earlier in these Reasons;

(iv) While Mr. Fiaoni was not involved in the production of the material found on his computers, he had been accessing child pornographic websites since approximately 2005, and had been making some of his collection available to others since December of 2008.

While the Pre-Sentence Report, as I have already indicated, is for the most part positive, there does not appear to be any acknowledgement by Mr. Fiaoni that he may need professional counselling. Mr. Fiaoni has been under psychiatric supervision to treat anxiety and depression since 2000. Treatment continued after his arrest, for social and emotional difficulties. While many of the cases put before me have involved an accused who sought out and participated in sexual behavioural counselling, Mr. Fiaoni has yet to see the wisdom of such a course of action. It is not inappropriate, in my view, to consider his failure to pursue help from professionals with expertise in dealing with sexual perversion, like that exhibited by Mr. Fiaoni, as an aggravating factor. His failure in this regard can be seen as a failure to acknowledge that he needs help and a possible signal that he may re-offend.

Let me move to the law. Crown counsel submits that the appropriate range of sentence in a case like the one before this court is six to eighteen months. A review of the jurisprudence would suggest that this is an appropriate range for consideration for a first offender with what may be described as a moderate collection of child pornography. See R. v. Kwok, supra and R. v. Bock, 2010 ONSC 3117, 2010 O.J. No. 2277 (OSCJ). Defence counsel candidly acknowledged that what he described as the “normal” range of sentence in a case like this is as suggested by Crown counsel, but that the appropriate range as it relates to Mr. Fiaoni is three to six months.

In R. v. E.O. 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563 (OCA), the Ontario Court of Appeal upheld a sentence of eighteen months for one count of possession of child pornography. In coming to that conclusion, the Court of Appeal noted at paragraph 7:

“Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. For that reason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation. Further, the offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deters others from the commission of the offence, and reflects the gravity of the offence: see R. v. Sharpe (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.) and R. v. Stroempl (1995), 1995 CanLII 2283 (ON CA), 105 C.C.C. (3d) 187 (Ont.C.A.). In this case, as observed by the trial judge and as discussed later in these reasons, the record of the appellant disclosed actual abuse of children. His accumulation of violent pornographic material involving young children, and the timing of his access to such material, support the trial judge’s conclusion that the appellant poses a danger to the community. For those reasons, we conclude that the appellant’s sentence is entirely fit.”

A more recent decision of our Court of Appeal involved a plea of guilty to seven sexual offences against children, including two counts of sexual assault against the four year old daughter of the accused. While Mr. Fiaoni’s conviction in no way equates to the facts in D.G.F. (supra), nonetheless, the Court of Appeal makes abundantly clear that sexual offences involving children are on the upswing. I make particular note of the comments of Justice Feldman in D.G.F. at paragraphs 21 and 22 as follows:

“21 Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately: see, for example, R. v. Sharpe, [2001] S.C.R. 45; Kwok. A number of relatively lenient sentences had been imposed in cases where child pornography was downloaded or distributed, there was no sexual abuse or making of child pornography involved, and there were many mitigating circumstances: see for example, R. v. Schan (2002), 2002 CanLII 41613 (ON CA), 155 O.A.C. 273; R. v. Weber (2003), 2003 CanLII 28579 (ON CA), 175 O.A.C. 138; R. v. Kim (2004), 2004 CanLII 32118 (ON CA), 181 O.A.C. 88. However, in cases that involved making child pornography and child sexual abuse, significant custodial sentences were imposed: see, for example, R. v. Jewell; R. v. Gramlick (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 (O.C.A.); R. v. R.W., [2001] O.J. No. 2810.

22 Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.”

“Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimized the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.”

In addressing the question of whether Canada’s law banning the possession of child pornography was constitutional, the Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, had an opportunity to comment on the harmful effects of child pornography as follows:

“158 The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on pre-existing inequalities.”

What is abundantly clear from a review of the jurisprudence reviewed by both Crown and defence counsel is the unanimity of almost all judges who have been confronted with the difficult task of sentencing a first offender convicted of possessing child pornography, that is a serious crime. As I previously noted, Parliament has mandated a minimum sentence of 45 days. For such a serious crime, which has such a long lasting effect on innocent children, one may question if the range of six to eighteen months adequately reflects the revulsion of society, but more importantly, whether it reflects the primary principle of sentencing for this type of offence, specifically denunciation and general deterrence. I leave to another day, and to another court, to decide this question. I accept that the jurisprudence has, to this point in time, reflected an upper end to the range of 18 months for facts similar to those before this court.

I do not accept, as suggested by defence counsel, that the appropriate range of sentence for Mr. Fiaoni is three to six months. Almost without exception the cases filed in support of that range can be distinguished. In R v. Lazore the accused pled guilty to possession of child pornography and received a sentence of six months. I note in Lazore the accused was an aboriginal offender who had a positive psychiatric report and was deemed a low risk to re-offend. As I have already noted from my review of the Pre-sentence Report filed in this matter, I have real reservations that because Mr. Fiaoni has not sought out appropriate professional help, he may be at risk to re-offend.

In R v. Pereyra the accused pled guilty to possession of child pornography involving a dramatically smaller volume of images than what was found on Mr. Fiaoni’s computer. The sentence in Pereyra was 104 days and three years probation. The accused in R v. Kostas involved a relatively young offender, 18 years of age, who was deemed a relatively low risk of re-offending. He received a sentence of 90 days and three years probation.

In R v. Ahmed the accused was found in possession of twenty-eight pictures and seven videos, a plea of guilty was entered and the accused received a sentence 90 days. The recent case of R. v. Brunton is worthy of some comment. The accused in Brunton pled guilty to possession of child pornography involving over 4000 images. In imposing a sentence of six months incarceration and twenty-four months probation, Justice Lafrance-Cardinal took note of the fact Parliament had enacted a minimum jail sentence of 45 days, which must have been intended to deliver a clear and strong message that children need to be protected from such deviant behaviour. The reasons then continue:

“Unfortunately, the message that viewing and possessing of child pornography is against the law and punishable by a minimum jail sentence of 45 days has not been sufficiently mediatized. The message has to be clear and we have to start by spreading the message in our high schools.”

I agree with those comments. There may be some who would question whether a sentence of six months reflects that clear and strong message.

The overriding consideration that I have brought to bear in my ultimate disposition is denunciation and general deterrence. Mr. Fiaoni has not demonstrated with any cogent evidence that he understands he needs professional help. In the absence of such evidence I am not satisfied that Mr. Fiaoni may not re-offend. Mr. Fiaoni was found in possession of a moderate amount of child pornography. While there is no evidence he paid to obtain what was found on his computer, there is no doubt that if there was no market for this vile product then those who produce child pornography would have no one accessing it. A very clear message needs to be sent to those who access child pornography that not only is it a serious crime but it is a crime which will be met with the denunciation of a not insignificant period of incarceration.

It is therefore the sentence of this court that you will be incarcerated for a period of 12 months to be followed by a period of three years probation, the terms of which I am prepared to discuss with counsel. The terms of probation that I am considering are as follows:

The order is to include the mandatory terms set forth in s. 732.1(2) of the Code, and the following additional terms:

(i) Report within 7 days of release from custody to a probation officer and thereafter as required by the probation officer;

(ii) Attend for assessment for counselling and/or counselling as recommended by the probation officer, and provide the probation officer with a release to permit the probation officer to confirm attendance;

(iii) Not possess any material that falls within the definition of child pornography set forth in s. 163.1(1) of the Code, or that but for the age requirements would fall within those definitions.

The Crown also seeks an order under s. 161 for a period of ten years. Section 161 authorizes a court to prohibit an offender from engaging in certain activities and attending certain places that may result in contact or communication with persons under the age of 16 years. I am satisfied that an order under sections 161(1)(b) and (c) are appropriate. The order will be in effect for five years from the expiry of your sentence of imprisonment.

Possession of child pornography is a primary designated offence for the purpose of the DNA provisions of the Criminal Code: s. 487.04(a.1)(iv.3). Accordingly, an order will go authorizing the taking of a DNA sample.

Possession of child pornography is also a designated offence for the purposes of the Sex Offender Information provisions of the Criminal Code: s. 490.011. I am not satisfied that the impact of an order that Mr. Fiaoni comply with the Sex Offender Registration Act would be grossly disproportionate to the public interest and, accordingly, I order that Mr. Fiaoni comply with that Act for the period provided in the Criminal Code.

Finally, the computer system on which the child pornography was found, as well as all of images and videos containing child pornography, are ordered forfeited. I believe Exhibits 2 and 4 are the ones at issue, and they are to be sealed, pending any appeal taken from the proceedings against you. If no appeal is taken, they are to be destroyed after 60 days from today’s date have elapsed.

THE COURT: Are there any submissions, counsel, with respect to any additional terms of probation or anything else related to this sentencing?

MS. SANG: Your Honour, I apologize I haven’t handed this up earlier, but my friend and I had discussed some additional terms of probation, subject to Your Honour, of course, but we were going to recommend. I’m just crossing out the terms that have already been covered by Your Honour.

THE COURT: Mr. Cunningham, I assume that these have been discussed with your client?

MR. CUNNINGHAM: They have been discussed. The only one that we’re contesting, I believe is marked there with an arrow, the no contact or communication with children under the age of 18 years of age. The issue the defence has with that is two-fold. One, family events, he does have nieces under the age of 18, and that would preclude him from attending various family events or any time people come over. The second concern with that is, Mr. Fiaoni previously worked in retail, and on his release may well find work in that field again. Obviously, working in a retail store could put him in contact or communication with children under the age of 18, would easily be anticipated.

THE COURT: Is there any objection from the Crown’s perspective to those exceptions?

MS. SANG: The concern that the Crown had was with respect to Mr. Fiaoni being alone in the company of children. The Crown is taking the position that that ought not to occur.

THE COURT: But if he is at a family event, and there are other adult members of his family present, it seems to me that the exception that is being requested makes sense.

MS. SANG: Yes, I agree with that, if the adults are there.

THE COURT: And similarly, to the extent that he should be encouraged to seek out employment. If that employment entails, such as in the retail sector, that he would have contact with children under the age of 18, again, provided there are other adult members of society present, it seems to me that he should be encouraged to seek out that type of employment, and with that exception those children should be more than adequately protected.

MS. SANG: Absolutely, as long as there are adults present, I have no difficulty with that, Your Honour.

THE COURT: Does that meet the concerns from the defence perspective?

MR. CUNNINGHAM: Yeah, that sounds fair, yeah.

THE COURT: All right, so the terms of probation that are reflected on the document that I am now looking at marked “proposed terms of probation”, they should be added to the terms of probation that I have already indicated. Is there anything else?

MS. SANG: Thank you, and if I could just clarify, the forfeiture order that Your Honour had made, does that include all of the items that were seized by the police including the computers?

THE COURT: Yes.

MS. SANG: Okay, thank you.

THE COURT: Yes.

MS. SANG: I just wanted to be sure about that. And finally, I wasn’t certain if Your Honour had considered imposing a section 109 order for a period of ten years, or not, but I believe that the Crown had requested that as well.

THE COURT: What’s the position of the defence?

MR. CUNNINGHAM: Defence is neutral on that.

THE COURT: All right, well under the circumstances, it seems appropriate that the order should follow as well.

FORM 2

CERTIFICATE OF TRANSCRIPT

Evidence Act, Subsection 5(2)

I, DOROTHY EGNATIS, certify that this document is a true and accurate transcript of the recording of R. v. Alexander Fiaoni, in the Superior Court of Justice, held at 50 Eagle Street West, Newmarket, Ontario, taken from Recording 4911-404-20121218-091619, which has been certified in Form 1.

May 24, 2013 _________________________

DOROTHY EGNATIS

*This certification does not apply to the Reasons for Sentence which was judicially edited.