Court File and Parties

Court File No.: CR-0365-18 Date: 2023-01-13 Ontario Superior Court of Justice

Between: His Majesty the King And: Shahim Shokouh

Counsel: Matthew Bloch, for the Crown Frank Addario, for Shahim Shokouh

Heard: October 28, 2022

Reasons for Sentence

P.J. Monahan J.

[1] On May 2, 2022, following a trial before me sitting without a jury, I found Shahin Shokouh guilty of the following offences, all of which occurred in the City of Toronto between January 1 and July 4, 2017: (i) accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code; (ii) possessing child pornography, contrary to s. 163.1(4) of the Criminal Code; and (iii) transmitting, making available or distributing child pornography, contrary to s. 163.1(3) of the Criminal Code. He is before the court today for sentencing.

Circumstances of the Offenses

[2] On April 23, 2017, Facebook became aware of a user, Shawnshokouh1, who had recently uploaded files that appeared to contain child pornography. Facebook reported the user, the associated IP address, and a verified email of shahinshoukouh@gmail.com, to the National Centre for Missing and Exploited Children, who remitted the file to the National Child Exploitation Coordination Centre (“NCECC”). The NCECC determined that the IP address used by the Facebook user in question belonged to Rogers Communication Canada Inc. On May 30, 2017, Detective Constable Matthew McLeod of the Toronto Police Service (“TPS”) obtained a production order requiring Rogers to provide records to assist in identifying Facebook user Shawnshokouh1.

[3] The results of the production order disclosed that the IP address in question was assigned to the Rogers account of an adult female residing at 331 Connaught Avenue in Toronto. Through subsequent investigation of Ministry of Transportation of Ontario (“MTO”) records, the TPS learned that one Shahin Shokouh also resided at 331 Connaught. DC McLeod compared the photo on the Facebook account for Shawnshokouh1 to the MTO photo for Shahin Shokouh and observed that they appeared to be the same person.

[4] On June 30, 2017, DC McLeod obtained a warrant to search 331 Connaught for electronic devices to obtain information relevant to the offences of accessing, possessing, or making available child pornography. The search warrant was executed shortly after 6 a.m. on July 4, 2017. Mr. Shokouh was awakened from his bedroom on the second floor and subsequently interviewed by the investigating police officers. The police also seized various electronic devices from his bedroom, including a cell phone and three computers.

[5] There were seven images (three of which were unique, the others being duplicates of those three) and three videos containing child photography on Mr. Shokouh’s electronic devices. The images were primarily of nude young girls in sexual poses with vaginas exposed. Some were performing fellatio on adult males, while others were being penetrated by an adult penis. One image was of two naked young girls in a large shower, one of whom is bound and gagged, with a nude adult female.

[6] I found that Mr. Shokouh intentionally accessed and downloaded images and videos containing child pornography. In addition, on three occasions in January 2017 he participated in Kik Messenger chats involving an unknown number of other participants, in which Mr. Shokouh uploaded nine images of child pornography (some of which were duplicates) to other participants in the group.

[7] Based on these findings of fact, I found Mr. Shokouh guilty of the three counts in the indictment. See R. v. Shokouh, 2022 ONSC 1574.

Circumstances of Mr. Shokouh

[8] In July 2017, Mr. Shokouh was 19 years old and a student at the University of Toronto studying computer science. At that time, he resided at 331 Connaught with his father, his mother, and his younger brother. I note that the other residents of 331 Connaught had no knowledge of Mr. Shokouh’s possession and distribution of child pornography. He left his studies a few months after he was charged and subsequently worked in various places. In September 2022, he commenced undergraduate studies at the Toronto Metropolitan University. He continues to reside with his parents and younger brother. He has no criminal record.

[9] A presentence report (“PSR”) was prepared in respect of Mr. Shokouh. In addition, in September 2022, he commenced counselling and psychotherapy with Ms. Stephanie Swayne, a Registered Social Worker. According to Ms. Swayne, she and Mr. Shokouh have met regularly at least weekly and sometimes twice a week throughout the fall of 2022. In August and September 2022, Mr. Shokouh underwent a sexual behaviour risk assessment with Dr. Lisa Ramshaw, a licensed staff psychiatrist in the Forensic Service at the Centre for Addiction and Mental Health and an Assistant Professor at the University of Toronto. In addition, Dr. Ramshaw conducted a further interview with Mr. Shokouh in late November 2022 to monitor his progress and prognosis. The PSR as well as the written reports from Ms. Swayne and Dr. Ramshaw provide detailed and very helpful information on Mr. Shokouh’s current circumstances and future prospects.

[10] The PSR notes that Mr. Shokouh was raised in a stable environment and has a strong and supportive family. His parents as well as extended family and friends praise Mr. Shokouh, describing him as an individual who is caring toward his loved ones. There appears to be no concerns with respect to substance abuse or violence. The PSR notes that it appears that Mr. Shokouh would benefit from counselling and should be provided with resources in the areas of emotional health and employment services.

[11] The report from Dr. Ramshaw notes that Mr. Shokouh acknowledged having accessed and distributed child pornography in January 2017. Dr. Ramshaw reports that Mr. Shokouh regrets what he did and feels that he was not mature enough at the time of these offenses to critically think for himself. He has expressed feelings of disgust with his behaviour and that “the whole thing is disgusting”. Mr. Shokouh denied any thoughts or urges to view child pornography.

[12] Mr. Shokouh voluntarily underwent phallometric testing administered by Dr. Ramshaw. That testing disclosed a sexual interest in pubescent children, generally between the ages of 11 and 13, in early stages of sexual development. Mr. Shokouh has a lesser interest in adult females and no interest in pre-pubescent children, or males. In Dr. Ramshaw’s view, Mr. Shokouh’s sexual interest is nonexclusive to pubescent girls, and, to his credit, he is not in denial and is interested in understanding more and participating in therapy.

[13] Dr. Ramshaw provided a risk assessment in which she noted that he has two of the seven risk factors identified in a risk tool that can be used in relation to those who have committed child pornography offenses. However, she also points out that he does not have the remaining five risk factors identified in this risk tool and, further, has a significant number of protective factors, including his cooperation with supervision and his positive social influences; his resilience, intelligence, and feasible plans; and his secure attachments and support from family and friends. She concludes that Mr. Shokouh is a low risk for committing further child pornography offences, and a very low risk for committing contact sexual offences against children.

[14] Dr. Ramshaw discussed her findings and conclusions with Ms. Swayne, whose therapy includes supporting Mr. Shokouh in preparing for his future, managing stress, and techniques to avoid relapse. Ms. Swayne described Mr. Shokouh as engaged in the therapy, interested in understanding his predilection, open to feedback, and reflective about their discussions and his experiences. Mr. Shokouh has been able to reflect on his risk factors and views his thinking as “very different” from what it was in 2017. Unlike in 2017, he is future oriented, has a greater awareness of the consequences of his actions, and is cognizant about the importance of safe Internet use.

[15] Mr. Shokouh’s mother, Nazanin Shahdi, also testified at the sentencing hearing. She explained that the family immigrated to Canada from Iran in 2008 when Mr. Shokouh was 11 years old. At that time, Mr. Shokouh had a limited understanding of the English language, but he worked diligently on his language skills such that by the end of high school he was accepted at the University of Toronto. She described her son as respectful, kind, and sensitive.

[16] Ms. Shahdi indicated that Mr. Shokouh’s arrest and subsequent criminal charges have been devastating not only to him but to the entire family. As a result of these charges and ongoing criminal proceedings, Mr. Shokouh does not eat properly, has trouble sleeping and had to drop out of university because he was unable to focus on his studies. He has also lost his relationships with many of his friends, including with a long-term girlfriend. Ms. Shahdi describes Mr. Shokouh as being ashamed of what he has done.

Applicable Sentencing Principles

[17] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. See Criminal Code, s. 718.1. A proportionate or just sentence must have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in the rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. Criminal Code, s. 718.

[18] Section 718.01 of the Criminal Code provides that in imposing a sentence for an offence that involves the abuse of a person under the age of 18, primary consideration shall be given to the objectives of denunciation and deterrence. As the Supreme Court noted in R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 51, sexual violence against children invades a child’s personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. The court in Friesen specifically pointed out that the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime. Ibid. Friesen made clear that sentences for sexual offenses against children, including those involving child pornography, should increase in order to keep pace with society’s increased recognition of the attendant harms, and in light of Parliament’s decision to raise maximum sentences for such offenses. I note that Parliament also established mandatory minimum sentences for the child pornography offenses in s. 163.1. However, in R. v. Boodhoo and others, 2018 ONSC 7207, 51 C.R. (7th) 227 and R. v. Walker, 2021 ONSC 837, 479 C.R.R. (2d) 28 (“Walker (ONSC)”), aff’d on other grounds, 2021 ONCA 863 (“Walker (ONCA)”), the 12-month mandatory minimum sentence for making available child pornography was found to be unconstitutional. In light of the Supreme Court’s decision in R. v. Sullivan, 2022 SCC 19, 413 C.C.C. (3d) 447, the Crown accepts that these decisions must be followed. It is therefore agreed that, as a practical matter, sentencing in this case should proceed without regard to a mandatory minimum sentence.

[19] These sentiments have been echoed by the Court of Appeal, which has noted that possession of child pornography “is itself child sexual abuse”. R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 22, citing R. v. Andrukonis, 2012 ABCA 148, 524 A.R. 306, at para. 29. The children depicted in pornographic images are re-victimized each time the images are viewed, and making such images available to others involves active participation in such abuse.

[20] At the same time, while denunciation and deterrence are the primary objectives that must be considered in sentencing those who commit sexual offenses against children, it remains appropriate for a sentencing court to have regard to other sentencing principles and objectives. This is made plain in Friesen itself, where the court notes that the sentencing judge retains discretion to accord significant weight to a variety of factors in arriving at a fit sentence, including: the offender’s prospects for rehabilitation and likelihood to reoffend; whether there was an abuse of a position of trust or authority; the duration and frequency of the offending conduct; and the age of the victim(s). See Friesen, at paras. 104, 124 and 126-35. The words “primary consideration” in s. 718.01 requires a relative ordering of sentencing objectives, such that denunciation and deterrence must be given priority over other objectives, but are not the sole or exclusive considerations that may appropriately be taken into account. This is consistent with the fundamental and overarching principle of proportionality, which applies to all sentencing decisions. See R. v. Lis, 2020 ONCA 551, 152 O.R. (3d) 125, at para. 48. Indeed, it would be inconsistent with the principle of proportionality to treat an offender who has demonstrated significant insight into his behaviour and is at a low risk for reoffending, no differently from the offender who lacks these positive characteristics.

Positions of the Parties

[21] The Crown seeks a sentence of two years less a day followed by a three-year period of probation, along with various ancillary orders. The Crown notes that there are a number of aggravating factors in this case, including the fact that Mr. Shokouh actively shared child pornography images through the Kik Messenger app. In doing so, he had no regard to the number of participants in the chat he shared the images, nor to the fact that those participants could then have transmitted those images to others, re-victimizing the children depicted in the process. Although the number of images involved was relatively small, the acts shown included penetration of child victims and, in one image, a child is bound. In addition, Mr. Shokouh was actively seeking additional child pornography, at one point messaging the group “do you have any hardcore?”

[22] Counsel for Mr. Shokouh proposes a 90-day sentence of imprisonment to be served intermittently, followed by a term of probation. He notes that Mr. Shokouh is a youthful first offender and invites the court to give significant weight to Mr. Shokouh’s potential for rehabilitation and low likelihood to reoffend. Mr. Shokouh has voluntarily entered sex behaviour therapy, and has shown insight into his behaviour and the seriousness of his offenses. Counsel also argues that Mr. Shokouh’s offending conduct falls at the low-end of the spectrum, given the small number of images and videos, the brief duration and low frequency of his distribution, and the fact that Mr. Shokouh was not part of an online community devoted to child pornography. He also has strong family and community support.

Analysis

[23] I accept the Crown submissions with respect to the aggravating factors in this case. Of particular concern is the fact that Mr. Shokouh shared child pornography through the Kik Messenger app. The images uploaded by Mr. Shokouh included: depictions of the genitalia of a female toddler and of young girls; images of a young girl being vaginally penetrated by an adult male; images of young girls fellating adult males; and an image of a naked child who is bound. By sharing these images with an unknown number of unidentified participants, Mr. Shokouh contributed to the ongoing re-victimization of these children. An additional aggravating factor is that Mr. Shokouh actively sought out these types of videos and images, offering to share his materials in an effort to obtain such materials from others.

[24] At the same time, in assessing the moral blameworthiness of Mr. Shokouh’s conduct, I regard the relatively small number of videos and images found on his electronic devices to be a relevant consideration. I am mindful of the admonition in Walker (ONCA) that sentencing for child pornography offenses is not done “by means of a strict mathematical formula tied solely to the quantity of pornographic materials without regard to other factors.” Yet, just as the frequency and duration of the offending conduct is an important factor in sentencing for sexual offenses involving children, See Friesen, at para. 131, the quantity of pornographic materials is surely relevant, albeit not in accordance with any particular mathematical formula. In Walker (ONSC), for example, the sentencing judge considered the fact that the offender had a “collection of child pornography, not just an image or two” to be an aggravating factor. at para. 54 (emphasis in original). That collection included 43 videos and 17 images, which the sentencing judge described as “not small”. Ibid. In contrast, Mr. Shokouh’s devices had three videos and a limited number of images, which I would regard as falling short of a “collection”. It also appears that Mr. Shokouh participated in the Kik Messenger chats on only three occasions in the month of January 2017.

[25] There are also a number of significant mitigating considerations in this case which I regard as appropriate to take into account. This includes the fact that Mr. Shokouh is a youthful first offender. Like De Filippis J. in R. v. C.B., 2022 ONCJ 345, at para. 22, I do not regard the instruction in Friesen to the effect that sentences in cases involving sexual offenses against children must increase as having displaced the principle of restraint when dealing with youthful first offenders. Moreover, while Mr. Shokouh did not plead guilty, he has voluntarily participated in therapy in which he has expressed remorse and gained insight into the nature of his offending conduct. I accept the conclusion of Dr. Ramsden that his likelihood of reoffending is low. He also has strong family support, and has practical plans to complete post-secondary education.

[26] Both counsel filed extensive case law in which a wide variety of sentences were imposed for child pornography offenses. The Crown relies in particular on Walker (ONCA) and R. v. Carlos, 2016 ONCA 920, in which sentences of three years for making available child pornography were upheld by the Court of Appeal. Yet, I regard the circumstances and conduct of the offenders in both Walker (ONCA) and Carlos to be significantly more blameworthy than that of Mr. Shokouh. I have already described the much larger collection of child pornography in Walker (ONSC), which is indicative of much more frequent and extensive offending conduct. Moreover, Mr. Walker was 46 years old and did not exhibit any insight into his offending conduct. In Carlos, the offender was 31 years old. He had 12 complete videos and 38 incomplete video files classified as child pornography, along with 156 files that were not viewable but were indicative of child pornography. The investigation also determined that the offender had previously downloaded 663 shareable files with filenames suggestive of child pornography.

[27] The Crown also relied on a number of other cases in which sentences between 18 months to 2 years were imposed, including R. v. C.O., [2022] O.J. No. 3173 (S.C.), and R. v. Guillemette, [2010] O.J. No. 5307 (S.C.). I will not discuss these cases in any detail, other than to note that, in my view, they involved far more extensive collections of child pornography, and certain important mitigating factors that are present in this case were absent in these others.

[28] Both counsel referred to the recent decision of the Court of Appeal in R. v. M. M., 2022 ONCA 441, where the court substituted a sentence of 15 months’ incarceration followed by 12 months’ probation in place of the conditional sentence imposed by the trial judge. In M.M., the 31-year-old accused and the 15-year-old complainant had exchanged numerous explicit texts discussing their desires to have sex with each other at an upcoming visit to a family cottage, which was to have occurred at or around the complainant’s 16th birthday. The accused had also sent the complainant photos of his penis, and she had sent him photos of her breasts along with a video of her masturbating. The accused was in a position of trust or authority towards the complainant. Therefore, his explicit discussions of sex with the complainant constituted child pornography, since it depicted sexual activity that would be a criminal offence (i.e., either “sexual assault” or “sexual exploitation”, depending on whether the complainant would have been over or under the age of 16 at the time of the sexual activity). In finding that a 15-month sentence of incarceration was appropriate, the Court of Appeal emphasized the fact that the accused was in a position of trust or authority, and that the complainant was particularly vulnerable since she was a child in foster care.

[29] I find the circumstances in M.M. to be more aggravating than those in the present case. M.M. was a 31-year-old attempting to exploit his position of trust and authority to induce a 15-year-old girl in foster care to have sex with him. In contrast, Mr. Shokouh was just 19 years old at the time of his offending conduct. Without in any way diminishing the seriousness of his offences, I note that he had no intention of engaging in any hands-on sexual offence(s), nor is he at any meaningful risk to do so in the future.

[30] In light of the Court of Appeal’s recent guidance in M.M. and having regard to all the relevant circumstances in this case, I find a fit and proper sentence for Mr. Shokouh to be a global term of imprisonment of 12 months, followed by 3 years of probation.

[31] The sentence will be entered as follows:

a. Count 1 – accessing child pornography: 12 months

b. Count 2 - possessing child pornography: 12 months, to be served concurrently with the sentence for Count 1

c. Count 3: making available child pornography: 12 months, to be served concurrently with the sentences for Counts 1 and 2

[32] The terms of your probation, Mr. Shokouh, are as follows:

a. Report to a probation officer within two working days following your release from custody, and thereafter when required by the probation officer;

b. Live at an address approved by your probation officer, and do not change that address, unless you receive the permission of your probation officer in advance;

c. Attend, actively participate in, and complete to the satisfaction of your probation officer all assessment, counselling or rehabilitative programs as directed by your officer including, without limitation, programs on the topics of child exploitation and child pornography;

d. Sign any releases that will enable your probation officer to monitor your attendance and completion of any assessments, counseling, or rehabilitative programs as directed above;

e. Do not possess any weapons as defined in s. 2 of the Criminal Code; and

f. Do not have any contact, including by means of telecommunication, with a person who is under the age of 16, unless you do so under the supervision of the child’s parent or legal guardian, or under the supervision of a person authorized by the child’s parents or legal guardian or authorized in writing by your probation officer.

[33] I also make the following ancillary orders:

a. Have a sample of your blood taken for inclusion of your DNA profile in the national DNA data bank, pursuant to s. 487.051(1) of the Criminal Code;

b. Forfeit all electronic devices seized by the TPS in this investigation, pursuant to s. 164.2(1) of the Criminal Code;

c. For a period of 10 years, comply with an order under ss. 161(1) (a), (b) and (c) of the Criminal Code prohibiting you from:

(i) attending a daycare center;

(ii) seeking, obtaining, or continuing any employment, remunerated or not, or becoming or being a volunteer, in a capacity that involves being in a position of trust or authority towards persons under the age of 16; and,

(iii) having any contact, including by means of telecommunication, with a person who is under the age of 16, unless you do so under the supervision of the child’s parent or legal guardian, or under the supervision of a person authorized by the child’s parent or legal guardian.

d. For a period of 10 years, comply with an order pursuant to s. 162.2 of the Criminal Code, directing that your use of the Internet shall be in accordance with the following conditions:

(i) you may possess an internet capable device and use it to access the Internet in accordance with the conditions below. However, you must do so on a device for which you are the sole owner and user. Further, the internet service must be in your own name or else provided through your employer or the educational institution you are attending, if applicable;

(ii) you may not access the Internet using public Wi-Fi services, internet cafés, or via shared public computers (i.e., computers at a public library), except when logged in as a student under your own name;

(iii) except as expressly authorized or required by your employer for legitimate work purposes, you should not use any encryption software or security program designed to prevent access to the contents of your internet capable devices, or take independent action to encrypt any digital storage devices in your possession;

(iv) except as expressly authorized in writing by your employer for legitimate work purposes, you shall not install or permit to be installed on your internet capable devices any software or service designed to defeat forensic analysis of the internet capable device;

(v) except as expressly authorized in writing by your employer for legitimate work purposes, you shall not use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the Internet (i.e., a TOR browser);

(vi) subject to paragraphs (iii) and (iv) above, you shall not permit to be installed on any device in your possession any scrubbing software or software that saves files in an encrypted fashion;

(vii) you are not to access any peer-to-peer file sharing networks directly or indirectly (including, but not limited to Motherless, LimeWire, Gnutella, BearShare, Shareaza, or similar programs); and

(viii) you are not to use any telecommunication device to access the Internet or other digital networks to possess or access content that violates the criminal law of Canada.

[34] The issue of the application of the Sex Offender Information Registration Act and Christopher’s Law (Sex Offender Registry), 2000 will be dealt with in separate reasons to be delivered at a later date.

P. J. Monahan J. Released: January 13, 2023