Court Information

Date: January 12, 2018

Information No.: 16-12987

Ontario Court of Justice

Her Majesty the Queen

v.

Derek Shaw

Reasons for Sentence

Before the Honourable Justice P.F. Band

on January 12, 2018, at Brampton, Ontario

Appearances

S. Stackhouse – Counsel for the Crown

K. Jalali – Counsel for Derek Shaw

Reasons for Sentence

Band, P.F. (Orally):

Today, Mr. Shaw pleaded guilty to one count of possessing child pornography, contrary to Section 163.1(4) of the Criminal Code of Canada, and one count of distributing child pornography, contrary to Section 163.1(3) of the Criminal Code of Canada.

The matter has been on a resolution course since its outset. The Crown proceeded by indictment.

The facts were presented to the court by way of an agreed statement of fact, which was made an exhibit in this proceeding.

Facts

Briefly, the facts are as follows. Over the three-day period of September 28th to 30th, 2016, Mr. Shaw was using an internet-based platform called Chatstep, which allowed him access to a chatroom called "incest" (although that word is misspelled for obvious reasons).

He engaged in chats with a person he believed to be the mother of a 10-year-old and a 12-year-old girl. In fact, it was an undercover police officer.

The two were discussing the possibility of Mr. Shaw engaging in various sexual acts with the two girls and possibly with their mother at the same time. The discussion was lewd and graphic. There is also a discussion about the need to prepare the girls for such an encounter. Mr. Shaw suggested, among other things, that their mother show them pornography involving older people with younger people. To that end, he also sent the officer images of pre-pubescent girls — two of these met the definition of child pornography.

A warrant was executed on October 19th, and his computer was seized. On it, police found 526 unique images constituting child pornography. Of those, 109 were accessible. That is, they had not been deleted by Mr. Shaw. In addition, one video constituting child pornography was found on his computer. The child pornography collection represented 30 to 40 percent of the pornography on his computer. The child pornography is described as involving mostly pre-pubescent females, some as young as toddlers, engaged in sexual acts with adults.

The Crown advised that, according to the officer who viewed the material, it is not particularly vile or aggravating in terms of content. This might sound like an odd thing to say. Yet, those of us who work in this area know that there are, sadly, degrees of vile and that the issue is relevant on sentencing.

The Crown also describes the collection as low in number, relatively speaking. In my experience, that is a fair description. Especially because the collection contains only one video, which in the case law, are treated as more aggravating than still images.

While it is known that Mr. Shaw accessed five child pornography files between the end of September and the execution of the warrant in October, the Crown was unable to tell how long the material had been on his computer or how frequently it had been accessed.

Circumstances of the Offender

Mr. Shaw is 69 years old, and has been married, quite happily, for 40 years. His wife is in court today with him and has been in the past as well. He has had a number of jobs and occupations and is now retired. Evidence was presented by the defence in this case, in the form of a psychiatric report by Dr. Hy Bloom. I will refer to it again below. Mr. Shaw had a relatively normal childhood devoid of abuse. His marriage has been, by and large, happy. The couple are close, they share common interests and friends, and appear to have enjoyed a normal and mutually satisfactory sex life.

Mr. Shaw, however, has a related criminal record. In 1998, he was convicted of "attempting to commit lewd and lascivious acts" in California. The conduct was similar to what it appears he tried to do here in the chatroom, but in that case, Mr. Shaw went to California, where he attended a hotel room and provided cash to an adult for the purposes of engaging in sexual acts with what he believed would be an 11-year-old girl. That adult was a police officer. Mr. Shaw was arrested and ended up pleading guilty. He served 270 days in jail. He was not ordered to seek and attend any counselling and did not, at any time in the ensuing years, choose to do so of his own accord.

Dr. Bloom is a well-respected expert in the field of forensic psychiatry in general, and sexual disorders in particular. He provided a lengthy and detailed report which was filed as an exhibit. In its preparation, Dr. Bloom met with Mr. Shaw. He met with his wife and spoke to his family physician. He also arranged for phallometric testing to be done. Mr. Shaw was cooperative and compliant. Based on the above, Dr. Bloom diagnosed Mr. Shaw as a pedohebephile. This is a sexual disorder involving the erotic preference for female minors. As I interpret all the results and Dr. Bloom's report, there is evidence that Mr. Shaw has a preference for female minors, but that the line was not clear cut as between older minors and adult females so as to allow for a diagnosis of hebephelia. This may help to understand how he has managed to maintain age-appropriate sexual involvement throughout his adult life, that is with his wife, throughout their time together. However, the report makes it clear that he has an erotic interest in pre-pubescent females as well. This is evident when one considers his offending.

Importantly, this interest is not exclusive, and he is able to have satisfying sexual relations with age-appropriate females.

Overall, Dr. Bloom's opinion is that Mr. Shaw represents a "close to low" risk to re-offend, particularly if he is supervised and his access to the internet is curtailed. He does not suffer from substance abuse problems, criminal associations, lack of structure, or problematic attitudes. He is clearly not a psychopath. He has strong support in the community, that is by way of his wife. He is deeply ashamed. He has insight into his offending and its causes. He has internalized the immorality of his acts as well as their impact on others, including the innocent children involved in the child pornography industry.

Mr. Shaw is willing to take counselling as directed and is deeply remorseful and ashamed for his conduct.

Position of the Parties

The Crown submits that a period of incarceration of two years less one day is the fit sentence in this matter. She recommends that he serve his sentence at OCI. By way of ancillary orders, the Crown also requests the following. That Mr. Shaw provide a sample of DNA for DNA database purposes. Possession of child pornography is a primary designated offence. That request is on consent. She also asks that Mr. Shaw comply with the Sex Offender Information Registration Act, also known as "SOIRA" for life. That, too, is on consent. She also seeks an order pursuant to Section 161 of the Criminal Code. This order is discretionary but on consent. I will describe its terms below. Mr. Shaw also consents to forfeit the offence-related property to the Crown for destruction pursuant to Section 164.2 of the Criminal Code. The Crown also submits that a period of probation is appropriate, and the defence agrees with her.

In addition to that, the defence seeks the following. A jail sentence of 12 months on each count, to be served concurrently. In the alternative, the defence requests a 12-month sentence on the possession count, and a 15-month sentence on the distribution count, to be served concurrently. The Crown agrees that the sentences can be served concurrently based on the case law.

Applicable Legal Principles

Child pornography offences are abhorrent offences of the utmost gravity. The reasons for this are described eloquently in a number of well-known authorities, including Justice Molloy's decision in R. v. Kwok, 2007 O.J. No. 457 (S.C.J.).

A mandatory minimum sentence of one year in jail is imposed by the Criminal Code in cases such as this. What is more, the minimum sentences have increased in the last two decades, as have the sentences ordered by the courts. This is a reflection of the fact that child pornography has become an increasingly pervasive evil in modern society, facilitated by the internet, which both churns out this material, and encourages its continued production. Each and every user of this material is complicit in its continued production. Over time, courts have learned more about the serious impact these offences have on their victims.

General deterrence and denunciation are primary, but not the only, sentencing principles that I must consider.

As the Court of Appeal said in R. v. Peters, 2010 ONCA 30, the fundamental purpose of sentencing set out in Section 718 of the Code, is:

to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by the imposition of sanctions that incorporate the sentencing objectives of denunciation, deterrence, rehabilitation and the promotion of responsibility in offenders.

The cases in this particular area of the law demonstrate a range of sentences which vary depending on a number of factors. These include the following:

• whether the accused has a record for similar offences;
• whether there was also production or distribution of the material;
• the size of the collection;
• its nature, including the age of the children and the relative depravity or violence depicted;
• the extent to which the offender is seen as a danger to children, including whether he is diagnosed as a pedophile who has harmed children in the past;
• whether the downloads were purchased or downloaded for free. This matters because purchase can have the effect of fueling the profit that is derived from the victimization of children;
• the age of the offender;
• the otherwise good character of the offender;
• whether the offender is willing to undergo treatment or has begun to do so;
• the extent, if any, of the offender's insight into his problem;
• the extent to which the offender has already suffered for his crime, for example, in his family, career, or community.

The Supreme Court of Canada has reminded the courts that it is in relation to offences that might be committed by otherwise law-abiding citizens that the principles of general deterrence and denunciation are particularly relevant. Child pornography cases often fall into this category. However, the Court also reminds us of the principle of restraint, that is, "even where a term of imprisonment is necessary, it should be the lightest possible sanction in the circumstances."

It is also the case that like cases ought to be treated alike. In this instance, neither party was able to file a case that is quite like Mr. Shaw's. The three cases referred to by the defence involve accused persons who had no prior records. That said, their collections, for the most part, appeared to be larger and, relatively speaking, more vile.

I turn now to the aggravating and mitigating factors in this case.

Aggravating Factors

The fact that some images involved toddlers is aggravating, but the facts are very scarce in this case. I was given no detail as to the conduct engaged in.

The principal aggravating factors are the following. Mr. Shaw's prior finding of similar conduct, for which he was sentenced to 9 months in jail. That said, one must bear in mind that that offence took place almost 20 years ago.

The other most aggravating factor in this case is that Mr. Shaw sent two images constituting child pornography to the undercover police officer in the context of recommending how to groom and prepare 10-year-old and 12-year-old girls. This, in my view, is more aggravating than making child pornography available simply by virtue of the fact that one is using a peer-to-peer internet server.

I disagree that Mr. Shaw's failure or unwillingness to seek treatment and counselling prior to these latest offences is an aggravating factor, with all due respect to the Crown. At most, it is the absence of a mitigating factor. And in some cases, such a fact might also speak to weaker prospects of rehabilitation.

Mitigating Factors

Mr. Shaw pleaded guilty to these very serious and highly stigmatized offences. He saved considerable judicial resources by doing so. It is also at law an expression of remorse. In Mr. Shaw's case, I believe that he is genuinely remorseful and shame-ridden. Mr. Shaw has insight into his offending, its causes, and its serious effects on its victims and society at large. Mr. Shaw is willing to engage in meaningful therapy and has been making efforts to begin the process. Mr. Shaw has been on a very strict bail conditions involving house arrest, albeit with a number of conditions, including when he is in the direct company of his wife. But he has done so in full compliance, as far as I know, for the last 15 months.

I would add this. In my experience in the criminal courts, child pornography involves the kind of traumatizing imagery that can affect even those of us who believe we are so-called "thick-skinned", or that we have "seen it all." The effects can be serious and lasting. They can, in combination with others, have serious impacts on our mental and physical health and on our relationships.

In our profession, and others, direct and vicarious trauma are topics that are rightly becoming the topic of study and discussion. This discussion must continue.

I also want to commend the Crown attorney for not taking the tack that some of her colleagues have in the past. That is, to present and file a "representative" set of images in the context of sentencing proceedings in which the nature and quality of that imagery is not even at issue. In my view, the costs of doing so over the long-term outweigh the perceived benefits. Not just for the players — that is the parties and the judges — but also for court staff.

Sentence

In my view, owing to the criminal record and the circumstances surrounding the distribution of the 2 images, a fit global sentence for Mr. Shaw in all the circumstances would be 18 months in jail. However, owing to the mitigating factors, important among them being the 15 months of house arrest, I would reduce that sentence to 15 months.

Mr. Shaw will be sentenced to serve 12 months in jail on Count 1. He will be sentenced to serve 15 months in jail on Count 2, and that will be served concurrently. I will recommend that the sentences be served at OCI.

Section 161 Order

The Section 161 order will read as follows, and counsel please listen carefully to Section D in case I did not get it right, okay?

So Section 161.1(a) will be as it is worded in the statute. Pardon me, no, it will be as worded as it is in the statute with the following exception "unless in the direct company of Shirley Shaw or other adult over the age of 40," which is what you jointly recommended am I right?

MS. JALALI: Yes, Your Honour.

THE COURT: Crown is nodding yes.

A.1 will not be ordered, that will be struck. B, as its worded in the statute, C as it is worded in the statute, and D will be that he is not to use the internet or digital network unless he does so in accordance with the conditions set out by the Court. The condition I intend to set out will sound like this, subject to your edits. "Not to use the internet for purposes of communicating with anyone under the age of 16 years, or with anyone for purposes of facilitating sexual activity with anyone under the age of 18 years."

MS. STACKHOUSE: Yeah. The Crown's in agreement with that.

THE COURT: You okay?

MS. JALALI: I'm in agreement with that as well.

THE COURT: All right.

Probation Order

In addition, Mr. Shaw will be placed on probation for a period of 36 months. His probation order will read as follows:

"Immediately upon release from custody Mr. Shaw you will report to a probation officer, and thereafter as they require. Within 30 days of your release from custody, Mr. Shaw you will provide a copy of Dr. Hy Bloom's report dated July 27th, 2017, to your probation officer." I expect that I will be asked on the court documents today to indicate that that report ought to be sent to OCI, and I cannot imagine why anyone would disagree with that, so that will be done as well. Okay? But they are different players.

You will keep the peace and be of good behaviour. You will attend court as and when required. You will notify your probation officer of any change in address or employment within 48 hours of such change. You will attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and you will complete them to their satisfaction, with regards to sexual paraphilias. You will sign consent forms or releases that are necessary to allow your probation officer to monitor your progress. So that is it for the probation order.

SOIRA Registration

I am also required to make an order that you comply with the Sex Offender Information Registration Act. Within 15 days of your release from custody you will attend for registration at the Sexual Offender Registration Bureau, and the address will be listed on the paperwork. That order will be in place for life.

DNA Sample

Finally, in this courthouse, today you will provide a sample of your DNA for the DNA database. We are dealing with primary designated offences.

Firearms Prohibition

Aside from the victim fine surcharges have I missed anything?

MS. STACKHOUSE: Section 109, unless I missed that.

THE COURT: Right, that one you told me was mandatory.

So, Mr. Shaw you are going to be prohibited by operation of the Criminal Code, pursuant to Section 109, of possessing firearms, prohibited firearms, restrictive firearms, crossbows, restricted weapons, ammunition and explosive substances for a period of 10 years.

And you will also be prohibited for life from possessing prohibited firearms, restricted firearms, prohibited weapons, prohibited devices, and prohibited ammunition, understood?

WHEREAS THIS MATTER WAS CONCLUDED