WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 07 12 COURT FILE No.: Newmarket 23-91103784
BETWEEN:
HIS MAJESTY THE KING
— AND —
HESAM DOWRAN
Before Justice Marcella Henschel
Heard on March 13, 2024
Oral Reasons for Judgment released on March 13, 2024. Written reasons for Judgment released on July 12, 2024. [1]
Counsel: Thompson Hamilton, counsel for the Crown Jeffrey Neiman, counsel for the defendant Hesam Dowran
HENSCHEL J.:
A. Summary of the Facts
[1] Mr. Dowran plead guilty to two counts of voyeurism that occurred on June 13, 2022 and July 21, 2022 for making surreptitious video recordings for a sexual purpose contrary to s. 162(1)(c) of the Criminal Code.
[2] On July 21, 2022, 16-year-old S.H. was browsing books at Indigo bookstore at the Hillcrest Mall in Richmond Hill. She sat at a table in the fiction section. Mr. Dowran sat across from her. She saw him intentionally knock papers on the ground and use his cell phone to video record or take photos up her skirt. She called him a creep and called the police.
[3] He was identified by police through surveillance video from the mall. The video showed him leave the Indigo store and go into Marshalls. In Marshalls he was observed bending down next to a female in an aisle. He left the mall and boarded his range rover.
[4] On July 27, 2022, the police arrested Mr. Dowran as he pulled into his driveway. Mr. Dowran gave a statement to the police and admitted being at the mall. He denied engaging in voyeuristic activity.
[5] The blue Hawaiian shirt he was wearing at the mall was seized, as were his cell phone and laptop.
[6] A warrant was executed on his phone and laptop and police searched his electronic devices. Police located 17 videos on his cell phone from inside Indigo, Marshalls, and Old Navy on July 21, 2022. Each video appeared to be recordings of him looking for women to film up their skirts. Two videos were of S.H. and confirmed that he filmed up her skirt. Three other videos appeared to be up-skirt videos of other females. They showed the genital area of the women and their underwear.
[7] Police obtained video from June 13 and 14, 2022 from Mr. Dowran’s laptop. It showed him filming from the side, rear window of his home. He was crouching down and surreptitiously filming an unidentified woman who was completely nude after showering. The female was never identified. Mr. Dowran rented this portion of his house on Airbnb and the woman was a tenant.
[8] On a final review of Mr. Dowran’s cellphone police located dozens and dozens of videos where he appeared to be trolling. Seven of the videos were voyeuristic up-skirt videos of women. One was taken at a Dollarama store in Richmond Hill from July 2022. Another was at Clarkson Library, Mississauga. Dozens of other videos of unknown locations were located.
[9] Mr. Dowran attended counselling after the incidents and admitted that he engaged in this behaviour for several months in 2021 and 2022.
B. Positions of the Parties
[10] The Crown submits that a period of eight months custody and three years probation should be imposed.
[11] The defence is seeking a non-custodial sentence. Mr. Neiman, counsel for Mr. Dowran, requests that I impose a suspended sentence and probation. Although, he concedes that the range of sentence as identified in the case law more likely supports the imposition of a conditional sentence, should I accede to his request not to impose custody.
C. Governing Sentencing Principles
[12] On summary conviction pursuant to s. 162(5)(c) of the Criminal Code voyeurism is subject to the general penalty provision in s. 787 of the Criminal Code. As such, the maximum sentence is 2 years less a day.
[13] Sentencing is a highly unique and individualized process that is informed by the principles and objectives of sentencing that are set out in ss. 718, 718.1, and 718.2 of the Criminal Code. Each case has its own particular facts and mitigating and aggravating circumstances.
[14] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful, and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely:
(a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[15] Further, according to s. 718.1 of the Criminal Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and to the degree of responsibility of the offender”.
[16] Section 718.2 of the Criminal Code dictates that, in imposing sentence, the court must also take into account a number of other principles including that:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
[17] In s. 718.2(a) parliament deemed a number of factors to be aggravating including, s. 718.2(a)(ii.1) and (iii.1) which are relevant in this case:
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
[18] The other principles in s. 718.2 to be considered include:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
D. Circumstances of the Offender
[19] Mr. Dowran is 40 years old. He and his wife have been married for 8 years but have been together much longer. Mr. Dowran has a 5-year-old daughter. He is close to and strongly supported by his parents and siblings. A pre-sentence report was completed, and I was provided letters of support from his wife Shabnam Rahbar and his older sister Hasti Dowran. His family members describe him as a loving caring family-oriented person. They describe the offences as out of character.
[20] The pre-sentence report was generally positive. Mr. Dowran was born in Iran and came to Canada in 1988 when he was 15 years old. He had a positive and stable upbringing, although his father was away from the home for extended periods while working in Canada. Mr. Dowran completed high school in Canada. After high school, he attended Seneca College for computer networking and subsequently attended Ryerson University for Information Management, graduating in 2010. From 2011 to 2014 he attended Law School in the United Kingdom at the University of Sussex and received his law degree. He hoped to complete the bar exam and become a lawyer in Ontario.
[21] Mr. Dowran recently disclosed that he was the victim of abuse by an extended family member as a child.
[22] In the pre-sentence report Mr. Dowran admits and accepts responsibility for the offences. He is remorseful and ashamed. He initially indicated to the pre-sentence report author that the offences were not sexually motivated and were for an adventure. He now acknowledges the sexual purpose of his actions. He advised the author of the presentence report that before becoming involved in the offending activity he was accessing pornography and it blurred the lines between reality and fantasy.
[23] Mr. Dowran has no prior criminal record.
[24] A risk assessment was completed by Dr. Sandra Jackson, a registered psychologist. In terms of overall risk assessment, Dr. Jackson concluded that Mr. Dowran scored in the low-density range of criminogenic needs on the Stable 2007 and was preliminarily placed in Level III on the Static 99R. She indicated his composite assessment placed him in Level II for supervision and intervention using the standardized risk framework. Persons in level II are considered below average risk to reoffend. In her report of June 30, 2023, she indicated as follows at p. 22:
…Most individuals have few identifiable criminogenic needs and have clearly identifiable prosocial resources and strengths. When moderate levels of criminogenic needs are observed, these needs are expected to be transitory, rather than ingrained problems. The risk of new criminal behavior for individuals in Level II is lower than the average individual convicted of sexually motivated offences, but greater than individuals in Level I. It is expected that most individuals will transition down to a Level I, Very Low Risk, if appropriate correctional strategies are provided or should they remain offence-free in the community for five years.
[25] At p. 23 of the report, she indicated as follows:
Based on the present assessment, we have identified some dynamic risk factors that we recommend be addressed through short term treatment. Treatment should be aimed at challenging traditional attitudes related to women and sexuality and increasing insight and awareness into the factors that led to the offences, with a particular focus on understanding his own sexual motivation and arousal patterns. While Mr. Dowran has made considerable progress since his arrest, we believe he has a limited understanding of his motivation and struggles understating or accepting the sexual nature of his activity.
[26] At page 24 she concluded as follows:
We strongly recommend that Mr. Dowran participate in a group therapy program, such as one offered by the Centre for Addiction and mental Health (CAMH) Sexual Behaviors Clinic, for individuals who have sexually offended in order to develop awareness and insight into his behavior and underlying attitudes and to challenge cognitive distortions related to sexual offending. He would also benefit from continuing with his current therapist to ensure he is addressing issues related to his own abuse and the role this may have on his view and behavior related to sexuality, arousal patterns, and boundaries.
[27] Mr. Dowran also participated in extensive counselling with Joanne Smith, a social worker. She confirmed that Mr. Dowran saw her for counselling between August 2022 and January 2024. In her January 31, 2024 report she indicated as follows:
Mr. Dowran has reflected upon the causes of his unlawful and inappropriate behaviors. He has utilized therapy to understand the cognitive distortions that led to voyeurism. Mr. Dowran realizes the gravity of his immoral behavior. He is working through feelings of guilt and shame, especially because he is a father to a young girl and has constantly imagined the victimization of his own daughter. He breaks down emotionally when talking about the victim of his crime because he feels genuine remorse for the victim and is disgusted with himself.
Mr. Dowran recognizes the seriousness of the situation and the immense ramifications for the victim. During therapy, he stated that because of him, she experienced trauma and fear and must now look over her shoulder in her community. It pains him to know that she has endured this terrible experience, especially because he too was a survivor of a crime as a child and was taken advantage of by someone in a position of power and control over him. Mr. Dowran has learned that his own unresolved issues and secrets about his past manifested and played part in his development of deviant behavior. He has since reflected, deconstructed, and began to heal from his own traumas and has identified the unhealthy and flawed thought patterns that he used subconsciously to justify his actions. His revelations are crucial to his rehabilitation. He has corrected the distorted thoughts and gained strong insights about the triggers that drove him towards voyeurism. He feels confident that she has gained control over his thoughts, feelings, and actions.
E. Range of Sentence and Aggravating and Mitigating Factors
[28] While sentencing is an individualized process, authorities assist in establishing the governing legal principles and a general range of sentence. A review of the authorities reveals a wide range of sentences have been imposed for the offence. In Medard [2], Justice West, referring to a decision in B.H. [3], described the range of sentence as being between a suspended sentence to a period of nine months jail with probation. Justice West indicated it is clear that the range of sentence is quite broad and the particular circumstances of each case must be carefully considered.
[29] In Jarvis the Court, after a detailed review of the authorities, similarly concluded that the range of penalty for voyeurism is very broad and the particular circumstances of each case must be carefully considered.
[30] A proportionate sentence, in large measure, is determined by the specific and unique factors surrounding the offender and the commission of the offence. Although precedents involving similar cases can provide guidance in determining a proportionate sentence, they should not dominate the sentencing process.
[31] Consideration of the relevant aggravating and mitigating factors assists in determining the appropriate sentence within the range of available sentences.
Mitigating Factors
[32] The following are relevant mitigating factors:
- Mr. Dowran has entered a guilty plea, admitting full responsibility for the offences and avoiding the need for a trial. This has spared S.H. from testifying and saved valuable court time.
- He is a first offender. He has no prior criminal record.
- He has taken significant steps to address the underlying conduct through counselling. Assessment reports indicate he is at low risk to reoffend. I accept that the counselling he has undertaken has assisted him in gaining insight into the seriousness of his conduct and he has good prospects for rehabilitation.
- He has completed 100.91 hours of community service with Habitat for Humanity.
- He has the ongoing support of his family, important to his rehabilitative prospects.
- I accept that he is genuinely remorseful. He articulately expressed his remorse in a letter prepared in advance of sentencing and expressed his remorse in his comments to me at the time of the sentencing hearing. He apologized to S.H. and her parents and recognizes the impact of his behavior upon her.
- In determining the appropriate sentence within the range of available sentences, I have considered the potential collateral consequences of the conviction on his ability to become a lawyer and to practice law.
- While not a mitigating factor, absent are certain aggravating factors. There is no evidence that Mr. Dowran posted or shared the videos he took on the internet and the offences were not committed in conjunction with any other sexual offences.
Aggravating Factors:
[33] The aggravating factors include:
- The repeated nature of the conduct and fact it occurred over a lengthy period of time. This is established by the dozens of videos recovered from his phone and his admission that the conduct took place for months during 2021 and 2022.
- The fact that he kept the videos, which revictimizes and allows for repeated compromise of the privacy of the victims.
- He took advantage of a circumstance of trust between a landlord and tenant by filming a woman who was staying at his Airbnb. The recording was highly invasive of her privacy.
- S.H was only 16 years old. Her young age is a statutorily aggravating factor.
- It is also a statutorily aggravating factor that the offence had a significant impact on S.H. In her victim impact statement, she describes that after the offence she felt uncomfortable going to the mall and being out by herself. She felt uncomfortable wearing skirts. The offending conduct made her distrustful of other men. In her words, she felt as if her freedom was taken from her by the actions of Mr. Dowran.
[34] As indicated by Justice Gee in B.H., “The invasion of privacy and loss of personal dignity to the victim are hallmarks of the offence and will generally attract a harsh rebuke from the court”. [4]
[35] In Medard, the youthful first offender was a security officer at a hospital. He plead guilty, admitting that he placed a phone in the staff washroom to capture staff using the washroom. On the day the phone was located he recorded a female nurse using the washroom. The video showed her pulling down her pants, exposing her genital area, and then sitting down on the toilet.
[36] A risk assessment placed Mr. Medard at slightly greater risk than Mr. Dowran. He was identified as being at moderate risk to reoffend.
[37] The allegations in this case involve offending conduct over a longer period of time and involve equally or more invasive conduct, particularly in regard to the videoing of the woman in the Airbnb apartment.
[38] Mr. Medard was found to have good rehabilitative prospects and strong familial support. He had no prior criminal record. As a result of his conduct, he suffered the collateral consequences of not being able to work as a police officer.
[39] The Crown in Medard sought a period of custody of 8 months. Ultimately, the court imposed a 12-month conditional sentence and two years probation.
[40] In Medard, it was the first time Mr. Medard had placed his cell phone in the staff washroom to videotape someone using the toilet. Only one video was found on his phone.
[41] The facts are very different in this case than in Medard. Mr. Dowran, over a period of months, was trolling malls and other public places and surreptitiously recording multiple individuals for a sexual purpose. The victims included a child, 16-year-old S.H., and a woman staying in his Airbnb. This involved a significant breach of trust. Moreover, there were seven other voyeuristic videos found on his phone and dozens of videos of trolling behavior. The extent and scope of Mr. Dowran’s offending conduct is much broader than the offender’s conduct in Medard. In addition, Mr. Medard was a more youthful offender.
[42] In my view the facts of this case are more similar to those in Jarvis [5]. In Jarvis, the accused, was a teacher who surreptitiously took videos of the cleavage of twenty-seven female students and one teacher using a pen camera. The students were between the ages of fourteen and eighteen. The pen camera contained nineteen videos which were recovered by the police, two were deleted files, leaving seventeen active videos. There were thirty different individuals depicted in the videos. Twenty-seven were female students. There was some audio recording associated with the videos. Most of the images focused entirely on the female students' cleavage, sometimes from close-up. Other times, when the offender filmed from a distance, he panned to the subject's face. At least five featured close-up, lengthy views of cleavage from angles both straight on and from above.
[43] Mr. Jarvis was found guilty after a trial. He had no prior criminal record and had strong family support. He was also remorseful for his actions. He attended counselling and was at low risk to reoffend.
[44] In Jarvis the Crown sought a period of custody of twelve to eighteen months. The defence sought a conditional sentence order of eighteen months. Mr. Jarvis was sentenced to six months jail.
[45] In Jarvis, the Court emphasized that the accused took advantage of the teacher student relationship to commit the offence. However, the Court noted that no nudity was ever filmed. The Court characterized the offence as a breach of trust perpetrated on young female adolescents and noted that the offences took place for more than a year, and the files were digitized and could be replayed for the offender’s gratification. In Jarvis, as in this case there was no evidence of dissemination.
[46] The Court in Jarvis held that there appeared to be no suggestion of any danger to the public or recidivism at that time from Mr. Jarvis.
[47] Ultimately, the Court in Jarvis held that denunciation and deterrence could not be adequately addressed by a conditional sentence order and imposed a period of custody of six months.
[48] In this case, the Crown took the position that while rehabilitation remains an important factor, denunciation and deterrence must be emphasized given the extensive and serious nature of the conduct.
[49] With respect to the defence request for a conditional sentence order, under s. 742.1(a) a conditional sentence is available where the court imposes a sentence of less than two years, if
a) The court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
[50] In Jarvis [6] in considering whether a conditional sentence was appropriate the Court stated the following:
…general deterrence and denunciation are required at a high level. Not just because it is statutorily mandated on the facts of this case. Technology is everywhere. Cameras, cell phones and other recording devices can be placed surreptitiously in any location, or on any person. The mainstream and social media is replete with video captures taken by citizens. It seems like everyone has a smart cell phone today. While this is not a case of a cell phone, in my view, this increases the need for sending a message to the general public that taking pictures of individuals in compromising positions, for example, women who might be wearing a top that is loose or showing cleavage is inappropriate. That is what Mr. Jarvis did, repeatedly and with guile. Therefore, in my view, this is one of those cases where general deterrence must actually play an enhanced and meaningful role in sentencing.
While it is true that in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.), Lamer C.J.C. stated at para. 22, that "a conditional sentence is a punitive sanction capable of achieving the objectives of denunciation and deterrence". However, in this particular case, I am not persuaded that it can satisfy these principles even with a restrictive conditional sentence with longer durations imposed. This would not proportionally reflect the gravity of the offence and provide the necessary elements of denunciation and deterrence. "Denunciation and deterrence are particular pressing . . . this may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence". Proulx at para. 114. See also R. v. R. (R.A.), 2000 SCC 8, [2000] 1 S.C.R. 163 (S.C.C.), at paras. 24-33.
In order to encourage the principles of denunciation and deterrence for both Mr. Jarvis specifically, and other offenders who commit similar crimes, a conditional sentence will not be suitable given the high number of aggravating factors. In my opinion, this requires a sanction that cannot be attained by the imposition of a conditional sentence in order to meet the objective of proportionality. For greater certainty, a conditional sentence would fail to strike the right balance in emphasizing the paramount principles and it would fail to place the right weight on denunciation, specific deterrence, and most significantly, it fails to address adequately general deterrence. The significant denunciatory effect of jail is required. I find that it would be unfit and contrary to the public interest to impose a conditional sentence. [7]
[51] I agree with the comments in Jarvis and they apply equally in this case. I am not satisfied that a conditional sentence would be appropriate. In my view it would be inconsistent with the purposes and principles of sentencing because it would fail to adequately address denunciation and general deterrence. While I accept that Mr. Dowran has taken significant steps towards rehabilitation, the repeated and predatory nature of his conduct is very concerning.
[52] Technology is omnipresent in our community and use of technology in this nefarious way for a sexual purpose threatens the perception of safety and security of others in the community, particularly women, who are often the target of such behavior. Women need to feel safe within their communities. A conditional sentence would fail to adequately denounce this predatory behavior and would not have a sufficient deterrent effect on other likeminded persons.
F. Conclusion
[53] The appropriate sentence is four months custody and two years probation. In Jarvis a six-month sentence was imposed. While there are factors more aggravating in this case than in Jarvis, in Jarvis was the significant aggravating feature of breach of trust by a teacher.
[54] The terms of the probation order will include the following:
- Keep the peace and be of good behavior.
- Appear before the court when required to do so by the court.
- Notify the court or probation officer in advance of any change of name, address, employment, or occupation.
- Report by phone to a probation officer within five days of release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
- Do not contact or communicate in any way, directly or indirectly, by any physical, electronic, or other means with S.H.
- Do not attend within 200 meters of any place that you know S.H. to live, work, go to school, frequent, or any place you know her to be except required court appearances.
- Do not attend at the Hillcrest Mall in Richmond Hill.
- Do not attend at the Clarkson Library in Mississauga.
- Do not list or rent any properties. You are not to list any properties on any rental services including Airbnb or VRBO.
- You are to delete any images of any pictures of unknown female persons that are in your possession.
[55] A victim fine surcharge of $200, $100 on each count is imposed with 12 months to pay the victim fine surcharge.
Released: July 12, 2024 Signed: Justice Marcella Henschel
[1] These reasons were delivered as oral reasons for judgment on March 13, 2024. Grammatical corrections and minor changes for readability have been made in the written reasons for judgment. A correction was made to paragraph 17 to add reference to 718.2(a)(ii.1) which was inadvertently omitted from paragraph 17 but referenced later in the judgment. [2] R. v. Medard, 2023 ONCJ 578 [3] R. v. B. H., [2017] O.J. NO. 3021 (OCJ) [4] B.H., at para. 22. [5] R. v. Jarvis, 2019 ONSC 4938 [6] Jarvis, at paras. 81-83 [7] Jarvis, at paras. 81-83