Court File and Parties

COURT FILE NO.: CR-0365-18 DATE: 20230322 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: January 30, 2023

Ruling on Respondent’s Application for an Exemption from the Sex Offender Information Registration Act

P.J. Monahan J.

[1] In May 2022, I found Shahin Shokouh guilty of accessing child pornography, possessing child pornography, and transmitting, making available or distributing child pornography. (See R. v. Shokouh, 2022 ONSC 1574 (“Reasons for Judgment”)). In January 2023, I sentenced Mr. Shokouh to 12 months’ imprisonment followed by three years of probation, along with various ancillary orders. (See R. v. Shokouh, 2023 ONSC 220 (“Reasons for Sentence”)).

[2] At the time of his sentencing, Mr. Shokouh sought a declaration pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, that he was not required to register under the Sex Offender Information Registration Act (“SOIRA”), an obligation imposed by s. 490.012(1) of the Criminal Code. Section 490.012 was declared unconstitutional pursuant to s. 52(1) of the Constitution Act, 1982 by the Supreme Court in R. v. Ndhlovu, 2022 SCC 38, but the declaration of unconstitutionality was suspended for a period of 12 months to permit Parliament to enact remedial legislation. Ndhlovu was released on October 28, 2022. Mr. Shokouh sought an exemption from the Supreme Court’s suspension of the declaration of invalidity, on the basis that requiring him to register under the SOIRA would violate his Charter rights, and that granting him a personal remedy under s. 24(1) would not undermine the purpose of suspending the s. 52(1) declaration.

[3] For the reasons that follow, I grant Mr. Shokouh’s application and find that he is not required to register under the SOIRA.

Relevant Background

[4] The details of the offences committed by Mr. Shokouh, as well as his background and current circumstances, are set out in my earlier reasons. (See Reasons for Judgment and Reasons for Sentence, at footnotes 2-3 above). I will not repeat them here, but instead, focus on matters relevant to whether Mr. Shokouh should be exempted from the suspension of the declaration of invalidity of s. 490.012.

[5] I note, first, that Mr. Shokouh’s possession and distribution of the offending material was very limited. His electronic devices had three offending videos and a limited number of offending images. Further, although he participated in chat groups in which he distributed a number of offending images to other chat participants, he did so on only three occasions in January 2017, and has not repeated that behaviour since.

[6] Also relevant is the fact that, although he pleaded not guilty at trial, following his conviction Mr. Shokouh acknowledged having accessed and distributed child pornography and expressed genuine remorse for his actions. As evidence of such remorse, Mr. Shokouh has taken concrete steps towards ensuring that he will not repeat such behaviour in the future.

[7] Such steps include commencing therapy with Ms. Stephanie Swayne, a Registered Social Worker, in September 2022, to prepare for his future, manage stress, and learn techniques to avoid relapse. Ms. Swayne described Mr. Shokouh as engaged in the therapy and interested in understanding the reasons why he had engaged in the offending conduct. In Ms. Swayne’s view, Mr. Shokouh has been able to reflect on his risk factors and his thinking is 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 of the importance of safe Internet use.

[8] In the fall of 2022, Mr. Shokouh also 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. A written 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 he committed these offenses to critically think for himself. He has expressed feelings of disgust with his behaviour and stated that “the whole thing is disgusting”. Mr. Shokouh denied any thoughts or urges to view child pornography.

[9] 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 about his sexual proclivities and participating in therapy.

[10] Dr. Ramshaw provided an overall risk assessment of Mr. Shokouh’s likelihood to reoffend. 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 also 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 at a low risk for committing further child pornography offences, and at a very low risk for committing contact sexual offences against children.

Ndhlovu

[11] In Ndhlovu, the Supreme Court found that the purpose of the SOIRA is to assist police in preventing and investigating crimes of a sexual nature by requiring the registration of certain information relating to sex offenders. Requiring mandatory registration of persons convicted of sexual offenses is rationally connected to the SOIRA’s purpose, since persons who have committed such offenses in the past pose an increased risk of doing so in the future. (See Ndhlovu, at paras. 65, 94).

[12] However, the court went on to conclude that mandatory registration of all persons who have committed sexual offenses is overbroad, since there are a significant number of sexual offenders who pose no increased risk of reoffending in the future. The court pointed out that 75 to 80 percent of sexual offenders never reoffend, and the lowest risk sexual offenders (the bottom 10 percent) are at no greater risk of sexual recidivism than the population of offenders with convictions for nonsexual criminal offences. Mandatory registration is therefore overbroad since it sweeps in these lowest risk sex offenders, even though there is no real possibility that including their information on the registry will ever prove useful to police. (Ibid, at paras. 79-101).

[13] The court further explained that the overbreadth of the mandatory registration requirement could not be cured by the fact that sex offenders, as a group, are at an enhanced risk of recidivism. The overbreadth analysis does not focus on the group, but on the individuals within that group. Although sex offenders may be part of a group that is generally at an enhanced risk of reoffending, this does not hold true for every individual in the group. (Ibid, at para. 95).

[14] Moreover, while the previous commission of a sexual offence is one of many empirically validated predictors of sexual recidivism, there are numerous other relevant predictive factors, such as age, unusual or atypical sexual interests, sexual preoccupation, lifestyle instability or poor cognitive problem-solving. Recidivism risk also varies depending on the pattern of offences, including whether the offence is a non-contact sexual offence or whether it is committed against a child, a stranger, an acquaintance, or a family member. In other words, it is necessary to consider a range of relevant variables particular to an individual offender to arrive at a valid risk assessment for that offender. Requiring mandatory registration of everyone who has committed a past sexual offence is a “categorical and unyielding” proxy that casts “too wide a net” by requiring the registration of offenders who demonstrate no increased risk of reoffending. (Ibid, at para. 10).

[15] Nor can the overbreadth of mandatory registration be cured by the fact that the risk of recidivism is difficult to assess, and even expert assessments may turn out to be wrong. Risk assessments need not be absolutely certain to provide a reasonable basis for a judicial finding that it is remote or implausible that an offender’s information will ever prove useful to police. (Ibid, at paras. 101-11).

[16] Given that the mandatory registration requirement was overbroad, the court concluded that the measure constitutes a significant deprivation of liberty in a manner that is inconsistent with the principles of fundamental justice. Nor could this breach of s. 7 of the Charter be saved under s. 1, since the Crown had failed to establish that the impugned measure was minimally impairing of an offender’s rights. The court pointed out that there were other more tailored alternatives, such as individualized judicial risk assessments, which would appear to substantially achieve Parliament’s objective. The Crown had the burden of showing that there were no such reliable, tailored alternatives available, and it failed to discharge that burden. (Ibid, at paras. 122-28).

[17] The court therefore declared s. 490.012 of no force and effect under s. 52(1) of the Constitution Act, 1982. However, the court also suspended the declaration of invalidity for one year since its immediate effect would have effectively precluded courts from imposing SOIRA orders on any offenders, including those at high risk of recidivism. Granting an immediate declaration could therefore endanger the public interest in preventing and investigating sexual offenses committed by high-risk offenders.

[18] Nevertheless, the court granted Eugene Ndhlovu an individual remedy under s. 24(1) and exempted him from the suspension of its declaration of s. 490.012’s invalidity. The court did so based upon the sentencing judge’s finding that Mr. Ndhlovu was unlikely to reoffend. Thus, there was no connection between subjecting Mr. Ndhlovu to a SOIRA order and the objective of capturing information about offenders that may assist police in preventing and investigating sex offences. For the same reason, granting Mr. Ndhlovu an individual remedy did not undermine the purpose underlying the suspension of the s. 52(1) declaration.

[19] The court also pointed out that during the one-year suspension of the declaration of invalidity, other offenders would be entitled to a similar personal remedy pursuant to s. 24(1) if they could demonstrate that a SOIRA order’s impacts on their liberty bears no relation to or is grossly disproportionate to the objective of s. 490.012.

[20] Finally, the court noted that having found the mandatory registration requirement overbroad, it was unnecessary to decide whether it also had a grossly disproportionate effect on offenders’ rights. The court noted, however, that the reporting requirements under the SOIRA are considerable and onerous, including the nature of the personal information required, the frequency at which offenders are required to update their information and the threat of imprisonment for failing to comply. The court expressly left open the possibility that the effects of these requirements may be grossly disproportionate to the purpose of s. 490.012 in some cases.

Positions of the Parties

[21] Mr. Shokouh argues that he is in essentially the same position as was Mr. Ndhlovu and should therefore be entitled to the same individual remedy under s. 24(1). Like Mr. Ndhlovu, he is at a low risk to reoffend. Thus, requiring him to register under the SOIRA bears no relation to the objective of assisting police in preventing and investigating sexual offenses. Nor would granting him an individual exemption undermine the purpose of suspending the declaration of invalidity, which is to ensure that courts can continue to order the registration of high-risk offenders while the declaration of invalidity is suspended.

[22] The Crown opposes the individual remedy sought by Mr. Shokouh, arguing that he has failed to show that requiring him to register under the SOIRA would have a grossly disproportionate impact on his liberty. The Crown points out that the risk assessment performed by Dr. Ramshaw disclosed that Mr. Shokouh has a sexual interest in pubescent children. Unlike in Ndhlovu, where the sexual offenses were driven by the fleeting effects of alcohol, Mr. Shokouh’s risk factors include a hebephiliac sexual interest that is not fleeting. Given this risk factor, it is not grossly disproportionate to require Mr. Shokouh to register under the SOIRA, particularly when he will be able to apply for a termination order in ten years.

Analysis

[23] I proceed on the basis that for Mr. Shokouh to obtain an individual remedy under s. 24(1), he must demonstrate: (i) that subjecting him to the mandatory registration requirement under the SOIRA would constitute a breach of his Charter rights; and (ii) that granting him an individual remedy would not undermine the purpose of suspending the s. 52(1) declaration. (As noted in the immediately preceding paragraph, the Crown took the position that in addition to satisfying these two requirements, Mr. Shokouh must also show that requiring him to register under the SOIRA would have a grossly disproportionate impact on his liberty. Ndhlovu establishes no such requirement. In fact, as explained earlier in this judgment, the court in Ndhlovu expressly declined to make a finding on whether the SOIRA involves a grossly disproportionate impact on offender’s rights, finding the measure unconstitutional solely based on its overbreadth. The Crown's position is also inconsistent with R. v. Albashir, 2021 SCC 48, 407 C.C.C. (3d) 437, at para. 67, which states that s. 24(1) remedies may be available even during a period of suspension if the accused can demonstrate that the legislation breaches their Charter rights, and that granting an individual remedy would not undermine the purpose of suspending the s. 52(1) declaration. I therefore proceed on the basis that Mr. Shokouh need only satisfy these two conditions to obtain an individual remedy under s. 24(1)).

[24] In my view, Mr. Shokouh has satisfied both of these conditions and is entitled to the individual remedy he seeks.

[25] Considering first whether the mandatory registration requirement breaches his Charter rights, I reiterate that, in her risk assessment, Dr. Ramshaw concluded that Mr. Shokouh is at a low risk to reoffend. Dr. Ramshaw reached this conclusion notwithstanding the fact that Mr. Shokouh has a hebephiliac sexual interest. As Dr. Ramshaw explained, such sexual interest is merely one factor amongst many in determining the likelihood that Mr. Shokouh will commit further offenses of this kind in the future. Her overall assessment that Mr. Shokouh is at a low risk to commit such offences considers these various factors, including his resilience, support from family and friends, positive social influences, his secure attachments and concern for others, his prosocial values and behaviours, and his cooperation with supervision. Further Mr. Shokouh has the capacity for empathy and remorse, and there have been no concerns about his behaviour since January 2017.

[26] By focusing on Mr. Shokouh’s hebephiliac sexual interest, the Crown in effect asks me to conduct my own risk assessment of his likelihood to reoffend based solely on this factor. In my view, the Crown’s focus on the single variable of Mr. Shokouh’s hebephiliac sexual interest in assessing his risk of reoffending is inconsistent with the Supreme Court’s direction in Ndhlovu that valid risk assessments must consider a range of relevant variables, and that there is no single factor that, on its own, yields an accurate assessment of an offender’s recidivism risk. I accept Dr. Ramshaw’s overall assessment that Mr. Shokouh is at a low risk to reoffend, based on her expert analysis of the full range of relevant variables.

[27] Given that Mr. Shokouh is at low risk to reoffend, he is in essentially the same position as was Mr. Ndhlovu. As such, his registration under the SOIRA is unlikely to ever prove useful to police in investigating or preventing offences of this nature in the future. I therefore conclude that requiring him to register under the SOIRA is overbroad on precisely the same basis as in Ndhlovu, since it subjects him to onerous reporting requirements that do not further the purposes underlying the enactment of the SOIRA. This deprivation is not minimally impairing of his Charter rights since there is a more carefully tailored basis upon which to determine whether he should be required to register under SOIRA, namely, the individualized risk assessment provided by Dr. Ramshaw.

[28] I further find that granting Mr. Shokouh an individual remedy under s. 24(1) would not undermine the purposes of suspending the s. 52(1) declaration. The court suspended the declaration of invalidity in Ndhlovu because, without the suspension, there would have been no way of ordering the registration of high-risk sex offenders under the SOIRA. Granting a low-risk offender such as Mr. Shokouh an exemption from the suspension of the declaration of invalidity thus would not undermine the Supreme Court’s purpose for suspending the declaration.

Disposition

[29] Mr. Shokouh’s application for an individual remedy, exempting him from the suspension of the declaration of invalidity of s. 490.012 of the Criminal Code, is granted. I therefore declare that he is not required to register under the SOIRA.

P. J. Monahan J.

Released: March 22, 2023