R. v. Shokouh, 2022 ONSC 1574

R. v. Shokouh, 2022 ONSC 1574

CITATION: R. v. Shokouh, 2022 ONSC 1574

COURT FILE NO.: CR-0365-18

DATE: 20220502

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHAHIM SHOKOUH

Matthew Bloch, for the Crown

Edmund Chan, for Shahim Shokouh

HEARD: February 22-25, 28, & March 1, 2022

REASONS FOR JUDGMENT

P.J. Monahan J.

1Shahin Shokouh is charged with the following offences, all of which are alleged to have 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;¹ (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 (the “Indictment”)

2For the reasons that follow, I find that the Crown has proven beyond a reasonable doubt that Mr. Shokouh is guilty of the three offences charged.

Background

3On 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. (“Rogers”). On May 30, 2017, Detective Constable Matthew McLeod of the Toronto Police (“McLeod”) obtained a production order requiring Rogers to provide records to assist in identifying Facebook user Shawnshokouh1.

4The results of the production order disclosed that the IP address in question was assigned to the Rogers account of Nazanin Shahdri, who resided at 331 Connaught Avenue in Toronto (“331 Connaught”). Through subsequent investigation of Ministry of Transportation (“MTO”) records, the Toronto Police Service (“TPS”) learned that one Shahin Shokouh also resided at 331 Connaught. 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.

5On June 30, 2017, McLeod obtained a warrant to search 331 Connaught for electronic devices, in order to obtain information relevant to the offences of accessing, possessing, or making available child pornography. The search warrant was executed shortly after 6 AM 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. This resulted in Mr. Shokouh being charged with the offences set out in paragraph 1 above.

6Mr. Shokouh sought to exclude the evidence obtained through the execution of the search warrant, as well as certain of the statements he made to the investigating police officers, on the basis of a violation of his rights protected by ss. 8, 10(b) and 24 of the Canadian Charter of Rights and Freedoms. Following a voir dire, I dismissed Mr. Shokouh’s Charter applications and admitted the impugned evidence.²

7It is agreed that in July 2017, Mr. Shokouh was 19 years old and was a student at the Scarborough campus of the University of Toronto studying computer science. At that time, he resided at 331 Connaught with his father, his mother and his 12-year-old brother A.S. No one else lived at the residence.

The Evidence

a. Crown’s case

i. Evidence seized during July 4, 2017 Search

8The police seized a number of electronic devices from Mr. Shokouh’s bedroom, including the following: (i) a “Blu” brand cell phone found on a nightstand beside Mr. Shokouh’s bed; (ii) an iMac desktop computer (the “iMac”) found on a large desk in the bedroom; (iii) a MacBook Pro laptop computer (the “MacBook”) also found on the large desk; and (iv) an Acer laptop computer (the “Acer Laptop”) found on a smaller desk beside the large desk. A forensic analysis was performed on the three computers. Through an agreed statement of fact (“ASF”), it is agreed that child pornography images and videos (respectively, the “Offending Images” and “Offending Videos”), were found on the iMac and the MacBook, as well as on a backup of an iPhone that was stored on the Acer Laptop.

9The officers also seized a white iPhone 6S (the “iPhone”) from the bedroom of A.S. However, no forensic analysis was undertaken of the contents of that iPhone.

10Further evidence as to the Offending Images and Videos, along with the manner in which they were located and identified, was provided by a number of police officers. In particular, Officer Jeff Kidd (“Officer Kidd” or “Kidd”), who was accepted as an expert in the forensic analysis of computers, computer devices and computer applications, and who had participated in the search, testified with respect to the forensic analysis he had conducted of the iMac, the MacBook and the Acer Laptop.

11Officer Kidd testified that there was a total of seven Offending Images (three of which were unique, with the other four being duplicates), and three Offending Videos (all of which were unique), found on the iMac and the MacBook. However, Officer Kidd also explained that only two Offending Images, along with the three Offending Videos (all of which were found on the iMac), would have been easily accessible by an ordinary user. The other five Offending Images (four of which were duplicates) had been stored in locations selected or generated by the computer operating system and would not have been accessible to an ordinary user without special software and/or expertise.

12With respect to the Acer Laptop, Officer Kidd testified that A.S.’s name was displayed on the login screen for the device. However, Officer Kidd also stated that the original username for the Acer Laptop at the time it was set up was Shawn Shokouh. At a later time, the username was changed to A.S.

13The Acer Laptop included a backup of an iPhone. Officer Kidd testified that this backup was created on January 30, 2017, in the process of transferring the data from the iPhone to a device using the Android operating system. Kidd further testified that at that time (i.e. 2017), data from an iPhone could only be transferred to an Android device using specialized software obtained from a third party. Such software had in fact been installed on the Acer Laptop at around the same time the iPhone backup was created. The iPhone backup stated that the iPhone that was being backed up was “Shawn’s iPhone.”

14Officer Kidd testified that the iPhone backup included messages from a Kik Messenger chat program (“Kik”). Kik is designed to be used on mobile devices as opposed to desktop computers, and enables users to send messages one-on-one or in groups, as well as to transfer images and videos. There were numerous Kik chats on the iPhone backup. It is agreed that three of the Kik chats in the iPhone backup included Offending Images.

15The Kik chats containing Offending Images were examined by Officer Michael Sabadin (“Officer Sabadin” or “Sabadin”) in March 2018. Sabadin testified that the first such Kik chat session was between the “Local User” of the iPhone and another user identified only as “fentonplus”, that took place between 5:04 AM and 5:50 AM eastern standard time (EST) on Saturday, January 7, 2017.³ Officer Sabadin testified that the “Local User” was the person using the iPhone at that time.

16In the initial message, the Local User asked fentonplus “can you add me to the group”. Fentonplus responded by asking “wut u got?” Local User sent an Offending Image. Local User then offered to trade images with fentonplus and, over the next few minutes, sent three further Offending Images. When fentonplus failed to send anything back, Local User said, “can you please share something so I can fuck off lol”. Fentonplus responded by saying “impress me”. When Local User said, “that’s all I have that are good”, fentonplus concluded the chat by saying “you’re still searching…Deliver some real goods and you’ll be rewarded.”

17The second Kik chat that included Offending Images involved the Local User and an unknown number of participants in a Kik chat group, that took place on Friday, January 13, 2017, from 9:31 PM to 9:46 PM EST. The Local User asked the group “anyone got cheese” and then followed up with a second message “CP”. Officer Sabadin stated that he has seen the terms “cheese” and “CP” used to refer to child pornography. The Local User also stated, “Why the fuck would I be a narc” and “I’ve already posted some lmao.”⁴ The Local User then received four Offending Images from other participants in the group.

18The third Kik chat session that included child pornography involved the Local User and an unknown number of participants in a Kik chat group that took place on Wednesday, January 18, 2017, in two parts, the first part from 12:48 AM until 2:10 AM EST, and the second part from 10:49 PM until 11:07 PM EST. In the course of this chat, the Local User made the following statements:

“Got any vids?”

“Do you have any hardcore?”

“You have a good collection”

“What’s the hottest thing you have?”

19During this chat session, the Local User sent five Offending Images to the group, four of them identical to images that were received by the Local User on January 13, 2017, and one identical to an image sent by the Local User during the chat session on January 7, 2017. The Local User also posted a link to a Dropbox, but Sabadin was not able to determine the contents of that Dropbox. In return, the Local User received nine Offending Images from other members of the group.

20The other device of interest that was seized from Mr. Shokouh’s bedroom on July 4, 2017 was the Blu cell phone. It uses the Android operating system and was unlocked. By examining the settings on the Blu phone, the officers found that the Gmail account assigned to the phone was ShahinShokouh@gmail.com. Kidd did not undertake a forensic analysis of the Blu phone and did not find any Offending Images on this phone.

i. Mr. Shokouh’s Statements to Police

21As noted above, Mr. Shokouh made three recorded statements to the police on the morning of July 4, 2017.

22The first statement was taken by Officers McLeod and Scott McQuoid in the living room at 331 Connaught commencing at 6:18 AM. After advising Mr. Shokouh of his right to counsel and cautioning him that anything he might say could be given in evidence, the officers explained that they were investigating allegations involving accessing, possessing and distributing child pornography. The officers also explained that on April 22, 2017, there had been an upload of child pornography using a Facebook account that appeared to belong to Mr. Shokouh.

23Mr. Shokouh told the officers that on April 22, 2017, a friend of his had gone through his phone and found some pictures containing child pornography. Mr. Shokouh said that his friend then sent these pictures to a girl. Mr. Shokouh also said that he did not have a lot of pictures involving child pornography on his phone and in fact had forgotten about them until his friend started sending them to the girl. Mr. Shokouh said he got really angry with his friend and cut ties with him. He also deleted all of the images containing child pornography from his phone.

24At this point, the officers placed Mr. Shokouh under arrest and told him that he was going to be transported to the police station where he would have a chance to consult legal counsel. The first interview concluded at 6:27 AM.

25The officers took a second statement from Mr. Shokouh commencing at 6:34 AM. After reminding him of his right to counsel and of the fact that any statement he made could be used in evidence, the officers asked him to identify the cell phone that had been used to upload child pornography. Mr. Shokouh replied that it was a white iPhone 6S that he had used previously but that was now being used by his brother A.S. Mr. Shokouh also said that there was no child pornography on any of his other devices. The second interview concluded at 6:36 AM.

26The third statement was taken at the police station commencing at 8:52 AM. (In the interim, Mr. Shokouh had spoken to duty counsel.) The police officers referred back to Mr. Shokouh’s initial statement in which he had acknowledged that there had been some child pornography images on his cell phone and that a friend of his had sent these images to a girl. Mr. Shokouh was asked how the child pornography images came to be on his phone. Mr. Shokouh stated that he had been on a “kid group” where users could share “your ex’s nudes” and the members of the group just sent “normal stuff, you know legal stuff”. Then some members of the group sent images of child pornography to the group and these images were automatically downloaded onto his phone due to the settings on his phone.

27Mr. Shokouh further stated that he may have had the images on his phone for about a week before deleting them. He said the cell phone he used was the white iPhone that he later passed onto his brother A.S. However, A.S. had no idea that this phone had been used to access child pornography.

28Later in the interview, Mr. Shokouh said that he had used the Kik app to participate in these chats. Mr. Shokouh had found Kik on the website 4chan. He found out about 4chan by viewing some videos on YouTube and “I wanted to see what the fuss was about.” Mr. Shokouh said he was aware of the fact that the child pornography images sent by members of the Kik group were automatically downloaded onto his phone. He deleted the child pornography images right after downloading them, but he must have forgotten to do so one time. He completely forgot about these images until his friend found them. After that he immediately deleted the images and had not spoken to his friend since that time.

29The officers asked Mr. Shokouh where he and his friend were located when the friend had sent images of child pornography using his iPhone. Mr. Shokouh said that he and his friend were in a car. The officers informed Mr. Shokouh that the IP address that had been used to upload child pornography was associated with his residence at 331 Connaught, which suggested that the upload had taken place at his house. Mr. Shokouh initially said he and his friend must have been close to his house, but he later said that they had been near a park some distance away. Mr. Shokouh said that perhaps his friend had sent child pornography from his house on a different occasion.

30Mr. Shokouh was asked whether he had used any devices other than the iPhone to obtain child pornography from the Internet. Mr. Shokouh said that he accessed the “deep web” using a Tor browser that he had installed on his iMac. He found out about Tor from some online videos and “again that was just, I was just, just trying to see what it was all the fuss about.” However, he said that he does not use the Tor browser that much anymore and he deleted child pornography right after downloading it.

31Mr. Shokouh said that he is the only person who uses his iMac. Although his brother A.S. knows the password for the computer, Mr. Shokouh said that A.S. does not know anything about Tor and would not be able to log onto his Tor account and download child pornography.

32The officers explained to Mr. Shokouh that even if he deleted an image from his computer, the image could still be located forensically on the hard drive. The officers asked Mr. Shokouh how many images and videos they were likely to find on his computer. He replied that there were “maybe 15 or 20 in each set, but I just looked at the preview and I deleted it. I did not actually open it or anything like that.” He also said that there were maybe three or four videos that were also deleted.

33Mr. Shokouh agreed that he had downloaded child pornography onto his computer via Tor, and that he had downloaded child pornography to his phone using the Kik app. However, he denied having distributed any child pornography to anyone else.

b. Defence Case

34Mr. Shokouh did not testify, nor did his counsel introduce any direct evidence.⁵ Defence counsel relied on Mr. Shokouh’s statements made to the police, particularly his denial of having distributed child pornography. Counsel also cross-examined Officers Kidd and Sabadin regarding their evidence.

35During his cross-examination, Officer Kidd agreed that of the Offending Images and Videos that were identified, the only files that were readily accessible through normal user interaction were two Offending Images and three Offending Videos on the iMac. These Offending Images and Videos had not been deleted from the iMac. However, the other Offending Images on the iMac and the MacBook, as well as the Kik chats found within the iPhone backup on the Acer Laptop, were not accessible through normal user interaction with the devices. Officer Kidd could not tell whether the user of the Acer Laptop had attempted to delete the Offending Images that were not readily accessible.

36Officer Kidd also agreed that there were approximately 143,000 images on the computers seized from Mr. Shokouh’s bedroom that were accessible to a user, and thousands of videos. He also agreed that it would be possible to import a thousand photos onto a computer at the same time. Officer Kidd did not know when the Offending Images or Videos were downloaded, whether they were stored together in a separate folder or whether they were in a folder with thousands of other images, nor whether the user of the device was aware of the existence of any of the Offending Images or Videos on the device’s hard drive. Officer Kidd also did not know whether or when any of the Offending Images or Videos were accessed or viewed by the user, nor did he know the search history of any of the devices, nor whether search terms like “CP” had been used to browse the Internet.

37Officer Kidd stated that in order for an image or video to be downloaded onto a computer hard drive, the computer user had to take some action in relation to the external source of the image. An image would not be downloaded onto an electronic device simply by viewing it on a website. Officer Kidd did not know the external source of the Offending Images or Videos. He also did not know whether they might have been attached to an email.

38Officer Kidd agreed that no Offending Images were recovered from the Blu cell phone seized from Mr. Shokouh’s bedroom. Officer Kidd did not examine the iPhone that was seized from A.S.’s bedroom, and did not know whether there was any child pornography on that phone.

39Officer Kidd agreed that there was a “guest account” on the Acer Laptop, and he was not able to tell how or when the guest account might have been used. However, Officer Kidd said the guest account would have very limited authorizations on the computer and wouldn’t have been able to create a backup of an iPhone without permission or authorization to do so by the owner of the laptop.

40The original user of the Acer Laptop was Shawn Shokouh. At some later point in time, the username was changed to A.S. Based on his examination, Officer Kidd said it was possible that the name of the user account was changed on January 19, 2017 at 10:06 PM.

41Officer Sabadin was cross-examined with respect to the Kik chats found within the iPhone backup on the Acer Laptop. Officer Sabadin agreed he didn’t know the identity of the “Local User” on the Kik chats, or where the Local User was located at the time of the chats. Officer Sabadin had no information on the IP addresses used for the Kik chats. He also doesn’t know who any of the other participants in the Kik chats were, or where they were located.

Applicable Legal Principles

a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt

42The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Charter. Thus, Mr. Shokouh is presumed innocent of the charges brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.

43Mr. Shokouh did not testify and the defence tendered no direct evidence. There is no onus on an accused to prove his innocence by testifying or by tendering evidence. It is up to the Crown to prove an accused’s guilt beyond a reasonable doubt, not the other way around.

44I remind myself of the meaning of the phrase proof beyond a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that Mr. Shokouh is probably or likely guilty. In that circumstance I am required to give the benefit of the doubt to Mr. Shokouh and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.

45I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that Mr. Shokouh committed an offence with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt in relation to that offence.

b. Circumstantial Evidence and Proof Beyond a Reasonable Doubt

46The Crown’s case in relation to Count 3 in the Indictment, namely, transmitting, making available or distributing child pornography, is circumstantial.⁶ Therefore, as the Supreme Court of Canada noted in R. v. Villaroman⁷, in order to find Mr. Shokouh guilty in relation to Count 3, it is necessary that a finding of guilt be the only reasonable inference that the evidence, or the lack of evidence, permits. Moreover, if the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that Mr. Shokouh is guilty of Count 3, then he is entitled to an acquittal on that Count.

47Nor is it necessary that inferences inconsistent with guilt be based on, or arise from, “proven facts”. At the same time, those inferences must be reasonable, given the evidence or the absence of evidence, assessed logically, and in light of human experience and common sense.⁸

48When assessing circumstantial evidence, it is necessary to consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown is required to negative those reasonable possibilities, but does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence of the absence of evidence, not on speculation.⁹ In short, “circumstantial evidence does not have to totally exclude other conceivable inferences”,¹⁰ and the trier of fact “should not act on alternative interpretations of the circumstances that it considers to be unreasonable”.¹¹

c. Application of W.(D.)

49Although Mr. Shokouh did not testify, in his statements to police, he denied having distributed or made available child pornography. Given these exculpatory statements in relation to the charge of distributing/making available child pornography, the approach set out by the Supreme Court of Canada in R. v. W.(D.)¹² applies in assessing whether or not the Crown has proven Mr. Shokouh’s guilt beyond a reasonable doubt in relation to Count 3.¹³ As such, if I believe Mr. Shokouh’s statements to the effect that he did not knowingly distribute or make available child pornography, I must find him not guilty of Count 3. Second, even if I do not believe Mr. Shokouh’s statements but they leave me with a reasonable doubt as to whether or not he knowingly distributed or made available child pornography, I must find him not guilty. Third, even if Mr. Shokouh’s statements do not leave me with any reasonable doubt as to his guilt on Count 3, I must still consider whether the evidence I do accept satisfies me of his knowledge of the distribution of child pornography beyond a reasonable doubt. In making these findings, I am obliged to assess Mr. Shokouh’s statements in the context of the evidence as a whole, as opposed to considering his statements in isolation.¹⁴

d. ‘Accessing’ child pornography distinguished from ‘possessing’ child pornography

50Section 163.1 of the Criminal Code creates separate offences for ‘accessing’ child pornography as distinct from ‘possessing’ child pornography. As Mr. Shokouh is charged with both offences, it is necessary to clarify their respective meanings along with the differences between them.

51Section 163.1(4.2) states that a person accesses child pornography who “knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.” As the Supreme Court of Canada noted in R. v. Morelli¹⁵, this captures those who intentionally view child pornography on the Internet. This would include those who intentionally access and view a website knowing that the website contains child pornography, whether or not they download the material viewed.

52There being no specific definition in s. 163.1 of what constitutes ‘possessing’ child pornography, possession is to be determined in accordance with definition in s. 4(3). That definition includes personal possession, constructive possession and joint possession. Each type of possession requires proof of knowledge and control of the thing being possessed.

53Where personal possession is alleged, the accused must be aware that they have physical custody of the thing and must be aware of what the thing is. This knowledge must coexist with an act of control.¹⁶

54Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another’s use or benefit. Constructive possession is complete when an accused has knowledge of the character of the thing, knowingly puts or keeps that thing in a particular place, and intends to have the thing in that place for the use or benefit of the accused or another person.¹⁷

55In Morelli, the Supreme Court noted that the law of possession had been developed in relation to physical objects, and that applying it to virtual objects such as images stored in data files and displayed on electronic devices presented conceptual problems. The Court held that merely viewing a digital image on an electronic device was insufficient to establish possession of the digital image. Rather, possession is established only when a person has control of the underlying data file, as opposed to merely viewing its visual depiction. Such control could be established in a variety of ways, including by knowingly downloading the file to an electronic device, or by storing it in an email account.¹⁸

Defence Motion for Directed Verdict

56At the conclusion of the Crown’s case, counsel for Mr. Shokouh moved for a directed verdict on Count 3 in the Indictment. Defence counsel relied on the fact that the only evidence in relation to the distribution of child pornography by Mr. Shokouh consisted of messages sent via the Kik app, which is a mobile application intended for the use on devices such as cellular phones. Thus, it was possible that when Mr. Shokouh participated in the Kik chats, he might have been outside the City of Toronto. Since Count 3 alleged that Mr. Shokouh had distributed or made available child pornography “at the City of Toronto in the Toronto Region…”, counsel claimed that the Crown had failed to prove an essential element of the offence, namely, that Mr. Shokouh was within the City of Toronto at the relevant time.

57The motion for a directed verdict was dismissed. Section 601(4.1) of the Criminal Code provides that a variance between the indictment and the evidence taken is not material with respect to the place where the subject matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.

58The jurisdiction of this Court extends throughout the province of Ontario. In addition, by virtue of s. 7(4.1) of the Criminal Code, anyone who, outside of Canada, commits an act that if committed in Canada would be offence against, inter alia, s. 163.1, shall be deemed to have committed that act in Canada if the person is a Canadian citizen.

59Mr. Shokouh is a Canadian citizen. Thus, if he distributed child pornography anywhere in the province of Ontario, or anywhere outside of Canada, the fact that Count 3 makes reference to the City of Toronto is irrelevant in determining whether Mr. Shokouh is guilty of this Count.

60The Kik chats in which child pornography was distributed took place in January 2017. It is agreed that at the relevant time Mr. Shokouh resided with his family in the City of Toronto and that he was a student at the University of Toronto where his classes were taking place in person rather than virtually. There is no evidence to suggest that he was anywhere outside of the province of Ontario at any relevant time, and any suggestion to that effect is wholly speculative. Moreover, even if he was outside of Canada, any actions that would have constituted a violation of s. 163.1 if committed inside Canada are deemed to have been committed here.

61I, therefore, dismissed the motion for a directed verdict, finding that the Crown had proven that at the relevant time, Mr. Shokouh was within the territorial jurisdiction of this Court. It was therefore not necessary for the Crown to show that the offence of distributing/making available child pornography occurred in the City of Toronto.

Count 1: Accessing Child Pornography

62In his statements to police on July 4, 2017, Mr. Shokouh admitted having intentionally viewed the Offending Images. In particular, Mr. Shokouh admitted that he had participated in Kik chats in which he had received and viewed Offending Images. He also admitted having used the Tor browser on the dark web to access and view Offending Images and Videos. Offending Images and Videos containing child pornography were found on the iMac and the MacBook in his bedroom.

63Mr. Shokouh claimed that the Offending Images he received through the Kik chats had been automatically downloaded to his iPhone and that he had subsequently deleted these images. Whether Offending Images or Videos were automatically downloaded to his iPhone, and whether Mr. Shokouh later deleted them, is irrelevant to assessing guilt on Count 1, since the offense of accessing child pornography is made out by the mere act of intentionally viewing it.

64Given the evidence as a whole, there is no doubt that Mr. Shokouh intentionally viewed Offending Images and Videos. Therefore, I find him guilty on Count 1.

Count 2: Possessing Child Pornography

65As explained above, possession of child pornography that exists in virtual form is established where a person knowingly has control of the data file containing child pornography.

66There is no doubt that Mr. Shokouh knowingly had possession of digital files containing child pornography, as he admitted this to be the case in his third police statement. In particular, he stated that he had installed the Tor web browser on his iMac, used that browser to locate child pornography on the deep web, and then downloaded digital files containing child pornography onto the iMac. A forensic analysis of the iMac disclosed that there were two Offending Images and three Offending Videos that were readily accessible on the device. Since these Images and Videos were readily accessible to Mr. Shokouh, they were within his control, and he had constructive possession of them. It is thus beyond any doubt that Mr. Shokouh knowingly possessed digital files containing child pornography.

67Mr. Shokouh asserts that he deleted files containing child pornography and/or that he had forgotten that such files existed on his electronic devices. Neither assertion negatives a finding that he was in possession of child pornography. As Fish J. stated in Morelli, once possession of an object has been established through the requisite knowledge and control, “it does not matter for the purposes of criminal possession how briefly one is in possession of the object.”¹⁹ Even assuming that Mr. Shokouh later deleted the electronic files or forgot that they were stored on his computer, the fact that he was in possession of them at a particular point in time is sufficient to establish the elements of the offence of possessing child pornography.

68Nor does it matter that the Offending Images and Videos were found on devices that contained many thousands of other, non-offending images and videos. Mr. Shokouh admitted that he intentionally downloaded digital files containing child pornography. The fact that he downloaded these Offending Images and Videos onto devices that contained thousands of other non-offending images or videos is irrelevant.

69I, therefore, find Mr. Shokouh guilty of Count 2 in the Indictment.

Count 3: Transmitting, Making Available or Distributing Child Pornography

70Unlike with respect to Counts 1 and 2, Mr. Shokouh denied having distributed or made available child pornography. I must assess those denials in accordance with the principles set out in W.(D.), as described above. Moreover, because the Crown’s case on Count 3 is circumstantial, in order to find Mr. Shokouh guilty, it is necessary that such a finding be the only reasonable inference that the evidence, or lack of evidence, permits.

71The circumstantial evidence in support of the conclusion that Mr. Shokouh distributed or made available child pornography is overwhelming. It consists of the following:

i. a backup of an iPhone 6 was located on the Acer Laptop in Mr. Shokouh’s bedroom;

ii. the iPhone backup was created on January 30, 2017 in the process of transferring data from an iPhone to another device using the Android operating system;

iii. Mr. Shokouh said that he had previously been using an iPhone, but he had given this phone to his brother A.S. when A.S.’s phone broke;

iv. on the nightstand next to Mr. Shokouh’s bed was a Blu cell phone which uses the Android operating system. The Gmail account assigned to this phone was ShahinShokouh@Gmail.com;

v. third-party software had been installed on the Acer Laptop, so that data could be transferred between two otherwise incompatible devices;

vi. Mr. Shokouh was a student studying computer science at the University of Toronto;

vii. the iPhone backup identified the iPhone as “Shawn’s phone”;

viii. the iPhone backup contained a copy of all data on the iPhone at the time of the backup;

ix. included in the iPhone backup were three Kik chats in which Offending Images had been transferred between participants in the chat;

x. these Kik chats had taken place on January 7, 2017 between 5:04 AM and 5:50 AM; on January 13, 2017 between 9:31 PM and 9:46 PM; and on January 18, 2017 between 12:48 AM and 2:10 AM and continuing again from 10:49 PM to 11:07 PM.

xi. The person using the iPhone during these chats was identified only as “Local User”;

xii. during the Kik chats on January 7, 2017 and January 18, 2017, the Local User sent Offending Images to other participants in the chat, whereas during the chat on January 13, 2017 the Local User received Offending Images but did not transmit any such Images;

xiii. some of the Offending Images sent and/or received during the three Kik chats were identical or duplicates. In particular, of the five Offending Images that were sent by the Local User on January 18, 2017, four of them were identical to Offending Images that had been received by the Local User on January 13, 2017, and one was identical to an image that had been sent by the Local User on January 7, 2017;

xiv. it thus appears that the Local User in all three Kik chats must have been the same person;

xv. there were no other Kik chats containing child pornography on the iPhone backup;

xvi. Mr. Shokouh admitted that he participated in Kik chats using an iPhone 6S, in which other participants in the chat sent him child pornography;

xvii. since there were no other Kik chats containing child pornography on the iPhone 6S, and Mr. Shokouh participated in Kik chats involving child pornography, Mr. Shokouh must be the Local User who participated in the Kik chats on January 7, 13, and 18, 2017,

xviii. the inference that Mr. Shokouh must have been the Local User in the relevant Kik chats is corroborated by the fact that the phone that was used by the Local User was named “Shawn’s phone”, and the backup of the iPhone was found on a computer in his bedroom;

xix. further corroboration of this inference is provided by the time of day at which the relevant Kik chats took place, namely, very late at night or before 6 AM. It stands to reason that Mr. Shokouh would have had possession of his personal cellphone during these nighttime hours. Moreover, the only other persons residing at 331 Connaught were his two parents and his 12-year-old brother A.S.. Mr. Shokouh did not suggest that any other member of his family might have been the Local User participating in the Kik chats. In any event, none of them had the capacity, knowledge, or opportunity to use “Shawn’s iPhone” to participate in Kik chats and, in the process, to send child pornography stored on the phone to other participants in the chat.

xx. Because the Local User knowingly sent Offending Images to other participants in the Kik chats, and Mr. Shokouh must be the Local User, Mr. Shokouh must have knowingly distributed child pornography on January 7 and 18, 2021, and his statements to the contrary cannot be believed.

72Defence counsel argues that there are gaps in the Crown’s case that give rise to alternative reasonable explanations. In particular, counsel points to the fact that no forensic analysis was undertaken of the iPhone that was seized from A.S.’s bedroom; thus, it is not certain that this was the iPhone that was used for the Kik chats. Nor was a forensic analysis undertaken of the Blu phone and the police did not locate any child pornography on that phone. Counsel further argues that the backup of the iPhone on the Acer Laptop does not identify the Local User, and thus it could have been someone other than Mr. Shokouh.

73But these proposed ‘gaps’ only arise if the forensic evidence from the iPhone backup is viewed in isolation from the evidence as a whole. This evidence includes Mr. Shokouh’s admission that he used his iPhone in order to participate in Kik chats in which he received child pornography. The only Kik chats involving child pornography on the iPhone were those that occurred in January 2017, and the user of the phone during these chats not only received child pornography but also distributed it to others. Since Mr. Shokouh had to be the Local User, he must have transmitted child pornography to others, thereby committing the offence of distributing or making available child pornography.

74In any event, even if the failure to conduct a forensic analysis of the iPhone or the Blu phone constituted a ‘gap’ in the Crown’s case, there is simply no other person who could plausibly have been the Local User in the Kik chats in January 2017. These chats occurred late at night or in the early morning hours, when Mr. Shokouh would have been in possession of his phone. There is no suggestion that any of the other persons residing at the home could have been the Local User. In short, there is no other reasonable alternative explanation other than that Mr. Shokouh was the Local User on the iPhone who transmitted child pornography images using that device.

75I, therefore, reject Mr. Shokouh’s statements denying that he transmitted child pornography, nor do his denials leave me with any reasonable doubt as to his guilt on Count 3. The only reasonable conclusion that emerges from consideration of the evidence as a whole is that Mr. Shokouh transmitted, distributed or made available child pornography. I, therefore, find him guilty of Count 3.

P. J. Monahan J.

Released: May 2, 2022

CITATION: R. v. Shokouh, 2022 ONSC 1574

Footnotes

1. 1Criminal Code of Canada, R.S.C., 1985, c. C-46 [the “Criminal Code”].
2. 2See R. v. Shokouh, 2022 ONSC 1451.
3. 3Sabadin noted that the time log for the chat session shows it commenced at 10:04 AM Coordinated Universal Time (UTC) on January 7, 2017. UTC is five hours ahead of EST. Therefore, this chat commenced at 5:04 AM EST on January 7, 2017.
4. 4Sabadin testified that the term ‘lmao’ means “laughing my ass off”.
5. 5Mr. Shokouh did testify during the voir dire, but only on the issue of whether there had been a breach of his right to counsel in the taking of his statements to the police on July 4, 2017.
6. 6Although the Crown relies on circumstantial evidence in relation to Counts 1 and 2, it also relies on direct evidence in the form of Mr. Shokouh’s admissions to police that he admitted to those offences.
7. 72016 SCC 33, [2016] 1 S.C.R. 1000 [Villaroman].
8. 8Villaroman at para. 35.
9. 9Villaroman at para. 37.
10. 10R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at para. 22, quoted in Villaroman at para. 42.
11. 11Villaroman at para. 42.
12. 121991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
13. 13See R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 105-114.
14. 14R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O. J. No. 3177 (C.A.), at para. 5.
15. 152010 SCC 8, [2010] 1 S.C.R. 253,at para. 26 [Morelli].
16. 16Morelli, at para. 16; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273 , at para. 45 [Lights].
17. 17Morelli at para. 17; Lights at para. 47.
18. 18Morelli, at para. 32.
19. 19Morelli, at para. 30.