Court File and Parties

COURT FILE NO.: CR 16-50000503-0000 DATE: 20170419 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Raffaello Fattore

BEFORE: S.F. Dunphy, J.

COUNSEL: M. Wilson, for the Crown T. Faye, for the Defence

HEARD: April 18, 2017

Reasons for sentencing

[1] The accused, Raffaello Fattore has re-elected to proceed to trial by judge alone and has pleaded guilty to the crime of extortion contrary to s. 346(1.1) (b) of the Criminal Code. Having heard the submissions of Crown and Defence, I am delivering my decision and reasons at this time.

[2] The facts underlying the charge are as follows:

a. On June 18, 2015, Mr. Fattore attended the offices of “S[…]”, a paralegal agency. There he met Mr. J.B.. He advised Mr. J.B. that he had seen one of the firm’s paralegals named Mr. C.Z. attending Provincial Court in Brampton without disclosing his status as a paralegal. b. During the course of the meeting, Mr. Fattore threatened Mr. J.B. that a complaint to the Law Society of Upper Canada would be made regarding Mr. C.Z.’s conduct that would result in Mr. C.Z. being disbarred and S[…] being shut down. Mr. Fattore also suggested that this fate could be avoided were he paid $25,000, a figure he subsequently agreed to reduce to $10,000. Mr. Fattore advised Mr. J.B. that he should be taken very seriously. c. Mr. J.B. went to the police that evening and a warrant for Mr. Fattore’s arrest was taken out. d. On June 23, 2015, Mr. Fattore returned to Mr. J.B.’s office to resume discussions. Mr. J.B. called police and recorded the conversation that followed. Mr. Fattore repeated the essence of the conversation of June 18, 2015. The police arrived while the conversation was on-going, arrested Mr. Fattore and took him into custody. e. Mr. Fattore spent two days in pre-trial custody before his release. f. Mr. Fattore has agreed with the Crown’s summary of the facts that would have been proved at his trial had it been held in lieu of accepting his guilty plea.

Circumstances of Offender

[3] Mr. Fattore has no prior criminal record or history of involvement with the police. He is unmarried and 29 years of age. He is the eldest of three children. In his younger years, he was witness to domestic abuse during a period when his father was under severe financial stress and his parent’s marriage ultimately failed.

[4] Mr. Fattore graduated from University of Westminster with a degree in law last year and sat the New York State bar examination earlier this year. He has an outstanding offer of employment with a law firm in New York state conditional upon successful completion of the bar exams and admission to the New York state bar. He is a dual Canadian-American citizen. If he is successful in the New York bar, it is his intention to move to that state.

Position of the Parties

[5] The Crown position is that the seriousness of the offence warrants a custodial sentence. While the Crown concedes that a non-custodial sentence would be sufficient specific deterrence of Mr. Fattore, the requirements of general deterrence and denunciation both require a custodial sentence to be effective. The Crown portrays this offence as being a deliberate attempt to victimize a small business in the community that foundered only because the chosen victim – a former justice of the peace – was sufficiently well-versed in legal procedures and confident in the efficiency of law enforcement to step forward immediately. As well, the Crown takes the position that the failure to plead guilty until the start of his trial disentitles the offender to the credit that might otherwise accrue to a defendant who shows remorse early. The Crown submits that a custodial sentence of at least 120 days ought to be considered along with an appropriate term of probation. The Crown has proposed conditions of probation to which I shall refer below. The Crown also asks for a firearms prohibition order under s. 109 of the Criminal Code and a DNA order under s. 487.051.

[6] The Defence position is that a suspended sentence with a period of probation would be appropriate in this case having regard to the punishment already suffered by this young man and the severe cloud his intended career has already been placed under.

Analysis and discussion

[7] Extortion is a very serious crime. The maximum sentence is life imprisonment although there is no minimum sentence prescribed where, due to the absence of firearms or a criminal organization, s. 346(1.1) (b) of the Criminal Code applies.

[8] The very high maximum sentence underscores the seriousness of the crime and the high value to be placed on the value of denouncing this unlawful conduct and promoting respect for the law and maintenance of a just, peaceful and safe society in passing sentence.

[9] The principles applicable to sentencing are well known but warrant repeating. Pursuant to s. 718.1 of the Criminal Code, a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. The objectives to be pursued in sentencing are set forth in s.718 of the Criminal Code and include denouncing unlawful conduct, deterring the offender and others, assisting in rehabilitating offenders and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community. All of these factors are quite highly relevant here.

[10] None of the aggravating circumstances mentioned in s. 718.2 (a) of the Criminal Code are present in this case. The Crown suggests that the fact that the intended victim of this extortion was a small business ought to be viewed as an aggravating circumstance. I consider it to be a circumstance to be taken into account, but in a balanced fashion. All are entitled to the protection of the law, great and small. Were there a history of, as the Crown put it, preying on small business who may lack the sophistication to defend themselves, I should perhaps have viewed matters differently. There is no such history here. Rather, the crime has all the hallmarks of an opportunistic, if highly hare-brained, scheme conceived and executed before common sense and reason could have dissuaded him from putting it into execution.

[11] In my view, Mr. Fattore is a very fortunate man. He was fortunate in having chosen Mr. J.B. as his victim (although I am confident Mr. J.B. did not see it in that light at the time). Mr. J.B. had the confidence and training to handle the situation adroitly and to nip this scheme in the bud. As a result, Mr. Fattore has been given an opportunity to reform himself and pull back from the path he began to take. For that opportunity, he owes Mr. J.B. and the community a great debt of gratitude.

[12] There are mitigating circumstances present here:

a. Mr. Fattore is a young man who has just completed his university education (completed, it must be added, after his arrest); b. Mr. Fattore’s youth was subject to unusual stresses associated with the breakdown of his parent’s marriage and his father’s financial distress; c. Mr. Fattore is attempting to launch a legal career under the cloud of what will very certainly be challenging circumstances for many years to come as a result of this conviction regardless of what sentence may be imposed; and d. Mr. Fattore has no criminal record or record of involvement with police.

[13] I am not inclined to deprive Mr. Fattore of any credit for having shown remorse and entered a guilty plea earlier than today. While this may not have been an “open and shut” case, the existence of a recording of the extortion threat has made it very nearly so from the first day. The only real live issue in these proceedings has been sentence and the lack of a plea before now is not attributable to a lack of remorse. I am not to be taken as congratulating him for having put his victim through a preliminary inquiry and consumed public resources for two years while he sought to obtain a greater degree of clemency in sentencing. I should certainly have been inclined to give Mr. Fattore greater credit for having come to this decision earlier than today. However, I can find no basis for penalizing him for his conduct of these proceedings nor for doubting the sincerity of his remorse and willingness to take responsibility for his actions.

[14] This is a young man who has made a mistake. His remorse is genuine. This was out of character for him and, given his clean record was clearly a major but unique lapse on his part.

[15] I do not minimize the mistake. It was a large one. The fact that the victim was not significantly harmed was not for want of trying on Mr. Fattore’s part. His attempt to extort was serious and there is every indication that he fully intended to carry forth his scheme and would have done so had Mr. J.B. not approached the police. As I have said, it was very fortunate for Mr. Fattore that Mr. J.B. put an end to this scheme before it bore fruit.

[16] That being said, I ought not deprive an offender of liberty if less restrictive sanctions may be appropriate in the circumstances consistent with the harm done to victims: s. 718.2 ((d) and (e) of the Criminal Code.

[17] The Crown concedes that a custodial sentence is not required to deter Mr. Fattore from committing further offences. I agree. He poses a very low risk of re-offending. He has lived under the cloud of a severe sentence for almost two years and spent two days in custody. His dream of pursuing a legal career has been severely damaged and may prove very difficult for him to salvage. He has taken full responsibility for his actions and understands the harm he has inflicted on his victim and on the community.

[18] I have considered the degree to which the necessity of denunciation of this conduct and deterring others from following Mr. Fattore down this path may require a custodial sentence. While a custodial sentence must certainly be given careful consideration in a case such as this, I do not think these principles preclude my fashioning a sentence more appropriate to the circumstances of this offender in the circumstances of this case.

[19] The circumstances of this particular offence must place it near the low end of the spectrum of what is nevertheless a serious example of extortion, itself an ugly crime of predation. There was however neither violence nor threat of violence. The scheme was not successful and the victim went to police straight away. Restitution is not an issue. The offender has excellent chances of rehabilitation and there is every reason to believe that this was a colossal error of judgment on Mr. Fattore’s part that will not be repeated.

[20] Mr. Fattore’s youth, the fact that he has completed his education notwithstanding this significant cloud on his potential career, his lack of prior history, the fact that he has well and truly learned his lesson from this tragic lapse, the cloud that he has already placed upon his career and the fact that he is at very low risk to re-offend – all of these argue persuasively that Mr. Fattore’s rehabilitation potential is very high, that further specific deterrence is not required to modify his future behaviour and that a custodial term would be of little to no utility here.

[21] This young man will not be returning to our courts and in the very unlikely event he does, the clemency and leniency being shown him today will not fail to be taken into account as an aggravating circumstance in future. A sentence that takes his personal situation into account is called for and is one I am of the view I should fashion.

Disposition

[22] This is not an offence to which s. 109 of the Criminal Code applies. No violence or threats of violence were employed nor were any weapons involved. It is however a “primary designated offence” under s. 487.04(a)(xvi) of the Criminal Code for which a DNA order under s. 487.051(1) is required to be made. An order shall therefore be made in Form 5.03 authorizing the taking of the number of samples of bodily substances from Mr. Fattore that is reasonably required for the purpose of forensic DNA analysis.

[23] Having considered carefully the submissions of both parties, the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, I am of the view that this is an appropriate case for me to exercise my discretion under s. 731(1) (a) of the Criminal Code to suspend the passing of sentence while directing that Mr. Fattore be released on the following conditions of probation for a period of 18 months:

a. He shall keep the peace and be of good behaviour; b. He shall report to probation before the close of business on Friday April 21, 2017 and thereafter as directed by his probation officer; c. He shall reside at an address (that may include an address in the State of New York) approved by his probation officer; d. He shall have no contact or communication, directly or indirectly, with J.B., M.M. or C.Z.; e. He shall not attend within 200 metres of “S[…]” at X E[…] A[…] West in Toronto; f. He shall participate in any counselling or rehabilitative programs as directed by his probation officer; g. He shall sign any releases required by his probation officer to monitor his progress in any counselling or rehabilitation programs; and h. He shall complete 100 hours of community service with a community organization approved by his probation officer at a rate of not less than 5 hours per month.

[24] In fashioning these probation conditions, I have sought to accommodate the possibility that Mr. Fattore may be successful in obtaining admission to the New York State Bar notwithstanding the likelihood that his conviction may have closed that door to him for a time. In that event, I would wish any probation conditions to be flexible enough to accommodate that eventuality should it occur. Accordingly, there shall be no prohibition on Mr. Fattore completing his community service hours in less than 18 months.

[25] Mr. Fattore is being given a second chance. He has been fortunate that the harm inflicted by his error was so quickly contained. He would do well to meditate long and hard about how much worse things could have been in this case and take every possible step to draw the appropriate lessons. He will have a difficult time in establishing his intended career as a result of his actions. The proper response to that is humility and patience and not resentment. These are the consequences of his own actions – actions he voluntarily if irrationally undertook. I hope he is able to overcome some or all of these obstacles but he needs to be clear-eyed and humble in accepting them all the same.

S.F. Dunphy, J. Date: April 19, 2017