R. v. Cayabyab, 2019 ONCJ 772

CITATION: R. v. Cayabyab , 2019 ONCJ 772 St. Catharines DATE: 2019.10.24 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ALEXANDER CAYABYAB Before Justice Fergus ODonnell Reasons for sentence imposed on 22 October, 2019 Mr. T. Morris............................................................................................................ for the Crown Mr. V. Singh.................................................................. for the defendant, Alexander Cayabyab Fergus ODonnell J. Introduction 1 . It is the antithesis of everything that it is. 2 .

It is a remarkable resource and a calamitous curse. 3 . It is as wondrous as it is hideous. 4 . It connects families across oceans and tears households apart. 5 . It is an engine of enlightenment, advancement and the free exchange of ideas and it is a cauldron of hatred, repression and demagoguery. 6 . In the hands of people of good will, it is an unequalled tool for public betterment and, in the hands of the malefactor, it is a Hydra threatening us in ways as numerous as they are terrifying. 7 . "It" is the internet and it is one of the reasons behind these reasons. Overview of the Case 8 .

Among the internet's many and most maleficent manifestations, the spread of child pornography must rank at or within a hair's breadth of the apex. An evil the spread of which once required that the offender stir from the comfort and security of his home and seek out perverted purveyors of profound personal pain down dodgy back alleys, now spreads its tentacles across the globe in an instant, with no more effort required for its dissemination than a few computer keystrokes. 9 .

These reasons are about what the appropriate sentence is for someone who contributed to the suffering of child pornography victims by accumulating a small amount of child pornography over a period of a few months before voluntarily handing his collection over to the police, who until then had absolutely no knowledge of his crime. 10 . The imposition of sentence on another human being should never be "easy". However, while sentencing will often be complex and always somewhat subjective, the determination of an appropriate sentence will often be fairly straightforward.

It is on the periphery that reasonable people are most likely to differ and where the determination of the appropriate sentence for the particular defendant becomes most challenging. Thus, when it comes to the broad middle of child pornography sentencings, even for “mere” possession offences, a religious scholar might ponder whether to place child pornographers in the third or seventh of Dante's circles of hell, but a lawyer or

judge would know instinctively that, in the secular world of giving unto Caesar what is Caesar's, a Canadian criminal court will in almostevery case impose a sentence of real imprisonment, often a penitentiary sentence. 11. The reasons for this are clear. Child pornography is an unspeakable crime of sexual violence against children, clearly amongsociety's most vulnerable members and among those most in need of protection. It is an affront to the most fundamental ideas of humandecency. It is evil and odious and repugnant.

It does real and profound and enduring harm to countless victims and, in the internet age,leaves each victim to deal with the near certainty that, even if they are freed from physical danger by the authorities, their suffering willbe broadcast on the internet in perpetuity. Every user is responsible for the victimization of defenceless children. No authority need becited for these propositions because they are so obvious and so well-entrenched in both common awareness and in the legal literature. The Request for a Conditional Sentence for Mr. Cayabyab 12.

It is the nature of sentencing, however, that every sentence is tailor-made to fit the offence and the offender, each of which comes ininfinite permutations. While the broad principles of sentencing are set out in the Criminal Code and in decisions of courts of appeal andof the Supreme Court of Canada, the trial judge must in every case make an individual determination of how those principles and any"ranges" of sentence apply to the particular defendant before him and his or her crime. 13.

This is a case in which I have been asked to impose a sentence for a child pornography offence that falls outside the broad middle ofchild pornography sentences, which, as I have said, almost inexorably leads to a prison cell. In particular I am asked by the defendant toimpose a conditional sentence. The Crown asks that I sentence Mr. Cayabyab to six months' imprisonment in real jail. 14. A "conditional sentence" is defined by Parliament as a sentence of imprisonment, albeit one that is served in the defendant's home,typically under "house arrest" or other limitations on the offender's liberty.

A conditional sentence allows a defendant in some ways tocontinue his life as it was before the imposition of sentence, for example, allowing him to maintain his employment or education ortreatment. In an appropriate case a conditional sentence works to both the defendant's and society's benefit insofar as the maintenance ofstability, employment and the like tend to be conducive to a defendant's rehabilitation, which reduces the likelihood of recidivism andenhances public safety. 15. A conditional sentence is not available for every offence.

Before imposing a conditional sentence a court must be satisfied: (a) "that the service of the sentence in the community would not endanger the safety of the community and would be consistent with thefundamental purpose and principles of sentencing set out in sections 718 to 718.2" of the Criminal Code; (

b) that there is no mandatory minimum sentence of imprisonment prescribed for the offence; (

c) that the offence was not prosecuted by indictment and susceptible to a sentence of fourteen years' imprisonment or longer; (

d) that the offence is not one of a list of specific offences or types of offences that Parliament has deemed unsuitable for conditionalsentences. 16. The question of whether or not a conditional sentence would endanger the community requires a defendant-specific analysis,although a small risk of very serious harm could disqualify an offender from a conditional sentence. 17. A need for deterrence and/or denunciation does not necessarily disqualify a defendant from a conditional sentence, especially if theconditions of the sentence are adjusted appropriately to meet those objectives. 18.

At the time of the present offence the Criminal Code prescribed a mandatory minimum sentence of six months' imprisonment for theoffence of possession of child pornography under s. 163.1(4) of the Criminal Code for cases prosecuted by

summary conviction, as wasdone here, a provision that would normally eliminate a conditional sentence as an option. However, Mr. Cayabyab challenged theconstitutional validity of the mandatory minimum punishment as constituting cruel and unusual punishment and thus as violating s. 12 ofthe Charter of Rights and Freedoms. The Crown chose not to dispute the constitutional challenge in light of the decision of the BritishColumbia Court of Appeal in R v. Swaby, 2018 BCCA 416, which struck down the previous

summary conviction mandatory minimumpenalty under s. 163.1(4). Insofar as the previous mandatory minimum sentence was half as long, i.e. ninety days, and insofar as theSupreme Court of Canada has recently refused to hear an appeal from the British Columbia Court of Appeal decision in Swaby, (), this was a responsible decision on the Crown's part. The Facts 19. In the present case, Alexander Cayabyab was charged with a single count of possession of child pornography. He pleaded guilty. Hewas thirty years old at the time of the offence and is thirty-three years old now. 20. The genesis of Mr.

Cayabyab's arrest is very much atypical. Emergency medical services were called to his home on 17 November,2016 because Mr. Cayabyab was experiencing severe chest pains. Mr. Cayabyab told the paramedics that it was time for him to comeclean and bade farewell to his girlfriend. As the paramedics were examining him, Mr. Cayabyab asked them to call the police becausehe had been viewing child pornography. He said he hoped that God would forgive him. He had three hard drives with him, which hesurrendered to the police at the hospital, telling them that it was child pornography and its general character. 21.

The police did not obtain a search warrant to examine the hard drives until almost four months later.[1] During that time, Mr.Cayabyab asked the police about the status of his case; indeed, he required medical intervention when he found out that the investigationwas in stasis for some time.

22 . Mr. Cayabyab was kept in the hospital for approximately three weeks after he called the paramedics on 17 November, 2016. That stay was one of eight emergency department psychiatric attendances by Mr. Cayabyab over the eight year period from 2011 to 2019. Paranoia and suicidal ideation are reflected in the medical narrative, with one of the suicidal episodes occurring a month after his arrest when he called the police to inquire about the status of his case. A very detailed forensic psychiatric report from St. Joseph's Hospital in Hamilton sets out Mr.

Cayabyab's medical and personal history, a history that is supplemented by a pre-sentence report and several letters from people who have known Mr. Cayabyab long-term. Mr. Cayabyab’s Background 23 . Mr. Cayabyab comes from an unstable background. His mother is a constant in his life, but her relationship with Mr. Cayabyab's father ended when Mr. Cayabyab was six months old. His mother married another man when Mr. Cayabyab was three years old, a relationship that lasted about nine years and which was followed by a brief relationship with another man.

The first and third of these relationships involved the family moving to California briefly before moving back to St. Catharines. Around the time his mother's last- referred relationship ended, she introduced Mr. Cayabyab, then around twelve years old to Arthur Taylor, a chaplain with the Welland Canals Mission, to try to counteract the lack of a male role model in Mr. Cayabyab's life, a role that Mr. Taylor described as becoming more like an actual father/son relationship over the years. 24 . Mr. Cayabyab moved frequently and changed schools frequently during his youth.

He did not initially complete high school but did return to school and obtain his personal support worker certification. He is currently supported by the Ontario Disability Support Programme, an income he supplements with part-time work at a restaurant, a job he has held for ten years. 25 . Mr. Cayabyab has a substantial list of challenges. These are set out primarily in the pre-sentence report and the St. Joseph's forensic psychiatric report, as well as in the various letters filed on the constitutional application. It is not known if all of these events or conditions would necessarily have affected Mr.

Cayabyab, but in sum they demonstrate the complicated and challenging mental make-up of the person appearing before me for sentence. 26 . At birth, Mr. Cayabyab spent three days in an incubator because his umbilical cord was wrapped around his neck in utero; it is unknown whether hypoxia resulted from this. He suffered from delayed speech development but later progressed without speech therapy. As a child, one of his adoptive fathers struck him in the head, leaving a, "prominent area of cortical atrophy and encephalomalacia" (softening of the brain) on his frontal lobe.

In his grade school years it became apparent that he suffered from Attention Deficit Hyperactivity Disorder (ADHD) and Central Auditory Processing Disorder, the latter being a learning disorder that affects the processing and retention of information, with the possibility of it affecting a person's ability to comply with instructions because the instructions are not always fully retained or processed to begin with. In childhood, he was medicated for depression and ADHD. In his early twenties he was diagnosed with Obsessive Compulsive Disorder (OCD).

He has a history of hearing voices, although not of being subject to them in a command and obey fashion. A battery of psychological and cognitive tests conducted as part of the forensic psychiatric examination I ordered showed variable results in different categories, but generally trending towards cognitive and/or psychological limitations and challenges. 27 . In 2011 Mr.

Cayabyab attended the emergency department twice, once for suicidal ideation and on another occasion for destructive, impulsive behaviour at home, including throwing his computer off the balcony because of his internal religious conflict over his addiction to pornography. [2] Five years later he again experienced suicidal ideation and was diagnosed with borderline personality disorder among other characteristics. 28 . On his hospital admission on the day he surrendered his hard drives to the police, Mr.

Cayabyab was diagnosed with psychosis, generalized anxiety, OCD, borderline personality disorder and major depression. He finds his medications helpful but still experiences daily panic attacks. His mother describes him as being, in the forensic psychiatrist’s words, "prone to rumination and catastrophic thinking". He was back in hospital eleven days after his discharge, again threatening suicide by jumping from a highway bridge. He was back in the emergency department eight days later, again speaking of jumping to his death, this time from his balcony. His suicidal ideation recurred within a few weeks.

He had three more emergency department psychiatric attendances by the time of completion of his forensic psychiatric report earlier this year, one of which involved him being found pacing a bridge contemplating suicide. 29 . Mr. Cayabyab's collection of child pornography was small. In using that adjective, I stress again that any collection of child pornography is inherently repugnant, since even a single image reflects a child in peril. However, the size of an offender's collection, along with the nature of the images and other factors, is a measure of seriousness and of total harm relative to other offenders.

In Mr. Cayabyab's case there were six unique still images of female children, posed to draw attention to their pubic and/or anal regions and nine unique videos depicting girls aged around six to twelve years old engaged in sexual acts. [3] 30 . There was some suggestion that Mr. Cayabyab's viewing of child pornography was affected by his obsessive-compulsive disorder and a sense of curiosity and an obsessive need to understand, similar to him having viewed ISIS beheading videos repeatedly despite the intense distress they caused to him. It appears that Mr.

Cayabyab's possession of the images covered a period of about five months, during the last month or so of which he had ceased watching the images. Before he stopped watching the child pornography, he reviewed his collection repeatedly for about two hours per week, about one-third as long as he spent watching adult pornography. He was troubled by the incongruity of his behaviour with his faith and that sense of shame increased over time. 31 . In addition to the pre-sentence report, I had the benefit of several letters filed by people who know Mr. Cayabyab, most of them long- term.

The letters were generally very consistent, describing Mr. Cayabyab's long-term, serious mental health issues but also his generous, selfless and caring nature. Unlike some reference letters that I have received over the years, there is no commonality of pattern in the letters that could be suggestive of parroting a script, but a consistent, positive, pro-social theme that manifests itself through several clearly independent voices. 32 . The forensic assessment notes, "a history of chronic psychiatric illness, dating back to his adolescence," and says that, "Mr.

Cayabyab recognizes that he has a psychiatric illness and that he requires long-term follow up as well as psychopharmacology. He is

compliant with his medications and is invested in attending coping skills based therapy." These conclusions bode well for Mr.Cayabyab's rehabilitation and reflect a minimal and manageable risk of future danger on his part. The Appropriate Sentence 33. As I noted earlier, the imposition of a sentence of real jail is almost a given in cases of possession of child pornography. This is acommon thread in the authorities, including the decisions of the Court of Appeal for Ontario in cases such as R. v. Inksetter, 2018 ONCA675 and R. v. John, 2018 ONCA 702. The British Columbia Court of Appeal in R. v.

Swaby, supra, at paragraph 96, noted that,"incarceration is almost always the inevitable sentence for such offences…", but went on to note that there would be situations wherereal imprisonment would be entirely unfit as a sentence for such an offence. 34. It is, however, also a given that even where general deterrence and denunciation are primary considerations, sentencing must bespecific to the offender and the offence. This concept of proportionality is the cardinal principle of sentencing and all otherconsiderations, however important, are subordinate to it.

That is not to say that sentences imposed for “comparable” offences by“comparable” offenders are irrelevant; to the contrary they are very important factors for a sentencing judge to consider, especially thosethat come from appellate courts. The same is true with respect to general sentencing principles and their application to specific types ofoffences. The questions, however, are often (

a) to what extent either the offence or the offender is truly comparable from one case to thenext, and, (

b) to what extent the objectives of sentencing should be weighted in a particular case and how the tools of sentence canaddress those objectives in each instance. 35. The seriousness of Mr. Cayabyab’s offence cannot be gainsaid. Within the spectrum of child pornography offences, however, thepresent offence ranks towards the very low end given the number of images and videos, the mental health issues and the uniquecircumstances leading to Mr. Cayabyab’s apprehension. I consider the factors and the thoughtful and balanced analysis set out byMolloy J. in R. v.

Kwok, , to have aged well, although the range of sentence has trended higher since that time. In thepresent case, the six still images involve female children around the ages of eight to ten years old, five of them wearing underwear butwith the vaginal area as the focus of all of the pictures. The videos are of female children aged six to twelve years old engaged in varioussexual acts short of intercourse. There is no element of bondage or violence such as would take these images and videos to the extremeend of the range of seriousness, but the youth of the various victims is definitely troubling.

The unusually small number of images andvideos, by contrast, places the seriousness of the offence towards the lower end of the range for offences of this nature. 36. By way of a single comparison, Mr. Cayabyab's mental health issues and commitment to treatment appear to be somewhat in linewith the personal circumstances of the defendant in R. v. John, supra. It is there, however, that the similarities end. Mr. John had almostten times as many images/videos in his collection, with some involving children even younger than those in Mr. Cayabyab's collectionand with more egregious sexual abuse involved. Mr.

John had a trial and an appeal; Mr. Cayabyab pleaded guilty. The fact that Mr.Cayabyab not only pleaded guilty, but that he would never have come to the attention of the police if he had not turned himself in is aconsideration of tremendous importance in the determination of sentence. There could no clearer manifestation of remorse or of thediminished future risk in this case. It is clear that he is taking these charges and his mental health treatment regimen seriously and thathe has done so reliably in the two years since his arrest. 37. I am satisfied based on all of the material before me, including the St.

Joseph's forensic psychiatry report and the letter from thepsychiatrist who has cared for Mr. Cayabyab since his self-reporting to the police, that while Mr. Cayabyab's mental health illness doesnot exempt him from criminal liability, that same mental illness was a material contributing factor to the commission of the offence andis a relevant factor on sentence. 38.

I have concluded that the present case is one of those extremely rare cases in which a sentence other than real jail can adequatelyrespond to all of the relevant objectives of sentencing including denunciation and general deterrence insofar as the overall fact situation isatypical. The Criminal Code says that jail should be used only when necessary and to the extent necessary. It is not necessary here. Theneed for specific deterrence is very low in the present case and the objectives of rehabilitation and reparations can more fully be achievedby a conditional sentence than by a carceral sentence.

A conditional sentence of sufficient length, combined with the maximum periodof probation and a substantial amount of community service will best serve the needs of continued monitored rehabilitation andreparations, while containing a significant, measured and fact-specific punitive component. A conditional sentence for Mr. Cayabyabwould not endanger the safety of the community. A sentence of real jail for him would, in these circumstances, be counterproductiveand likely inconsistent with the objective of creating a safe society. 39. I have concluded that the appropriate sentence for Mr.

Cayabyab is a twelve month conditional sentence, nine months of which willbe served under house arrest with the balance served on an 8 p.m. to 7 a.m. curfew, the whole monitored by electronic supervision. Hewill thereafter be placed on probation for three years, including a requirement that he perform one hundred hours of community service. 40. An order will go under s. 161 of the Criminal Code, as will a SOIRA order for ten years. Mr. Cayabyab will provide a sample of hisDNA for inclusion in the DNA data bank. A forfeiture order will issue for the three hard drives surrendered by Mr. Cayabyab to thepolice.

Released: 24 October, 2019