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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: July 12, 2018

Court File No.: Halton 16-926

Between:

Her Majesty the Queen

— and —

Andrew D Eastwood

Before: Justice D.A. Harris

Heard on: April 24 & June 4, 2018

Reasons for Sentence released on: July 12, 2018

Counsel

Harutyun Apel — counsel for the Crown

Ken Byers — counsel for the accused Andrew Eastwood

Decision

D.A. Harris J.:

[1] Guilty Plea

[1] Andrew Eastwood pled guilty to the charge that between May 29, 2015 and September 16, 2015, at the Town of Oakville, he did make visual recordings of SY, EM and LC for a sexual purpose by placing a recording device under their dresses while at their place of employment, contrary to section 162(1) of the Criminal Code.

[2] Crown counsel originally elected to proceed by indictment but subsequently re-elected to proceed summarily with the consent of Mr. Eastwood who also waived the six month limitation period.

[3] Mr. Eastwood is before me today to be sentenced.

[2] Crown and Defence Submissions

[4] Crown counsel suggested that I should suspend sentence and place him on probation for one year.

[5] Counsel for Mr. Eastwood suggested that I impose a conditional discharge with probation.

[6] I find that a conditional discharge with probation for three years is the appropriate sentence.

[7] My reasons for this are set out under the following headings:

1. The law regarding conditional discharges
2. The fundamental purpose and principles of sentencing
3. The facts underlying the offences
4. The impact on the victims
5. The background of Mr. Eastwood
6. Analysis

CONDITIONAL DISCHARGE

[8] Section 730(1) of the Criminal Code provides that:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[9] There is no minimum sentence here. The offence is not punishable by imprisonment for 14 years or life. So I can grant Mr. Eastwood a conditional discharge if I consider it to be in his best interests and not contrary to the public interest.

[10] In Regina v. Sanchez-Pino, the Ontario Court of Appeal stated that:

16 ... In my view, the primary purpose of Parliament in enacting that section was to provide that an individual, although found guilty of what may loosely be described as a "less serious" offence, would not have a conviction recorded against him in all cases. In other words, he would not "have a criminal record" as a result of the occurrence.

17 The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.

18 Obviously the section is not confined to "simple cases of possession of marijuana". It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

[11] In R. v. Fallofield, the British Columbia Court of Appeal made a number of observations regarding the discharge provisions, including the following:

1. Discharges are not limited to technical or trivial violations;
2. Generally, the requirement that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and
3. While the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions.

[12] In R. v. Meneses, the Ontario Court of Appeal took into account:

1. that the appellant was a widow with children;
2. that she has had a good standing in the community;
3. that she has no criminal record;
4. that her misconduct was an isolated one and out of keeping with her past good character; and
5. that a conviction might have a detrimental effect on her ability to obtain gainful employment in the profession of dentistry of which she already has some expertise.

[13] It was in the public interest for this woman to be given every opportunity to become a useful person in the community and earn a livelihood for herself and her family.

[14] Further:

The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence. A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receive either an absolute or conditional discharge.

[15] Finally:

It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge.

[16] I also note the following comments by Justice Hill of the Ontario Superior Court of Justice in two summary conviction appeals:

1. Discharges are not restricted to trivial matters;
2. Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction;
3. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration;
4. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge.

[17] It is clearly necessary for me to examine the fundamental purpose and principles of sentencing in order to determine whether a conditional discharge would be appropriate in the particular circumstances of this case.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[18] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[19] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[20] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[21] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[22] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[23] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[24] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[25] Section 718.2(a)(iii) provide that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[26] Section 718.2(d) provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[27] The Supreme Court of Canada noted in Gladue v. The Queen that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.

[28] Before applying these principles, I must take into account the facts underlying the offence and the background of Mr. Eastwood.

THE OFFENCE

[29] Mr. Eastwood was Senior Vice President of a company that employed SY, EM and LC.

[30] On May 29th 2015 between 3:08 pm and 4:49 pm, he took three separate short video clips by placing a recording device underneath SY's dress while at their place of employment. His voice can be heard in the background.

[31] On July 29th 2015 at 9:59 am, he took a short video clip by placing his recording device underneath EM's dress while at their place of employment. The accused's face can be seen, and voice heard in the video.

[32] On September 16th 2015 at 4:47pm, he took a short video clip by placing his recording device underneath LC's dress.

[33] All of these clips were discovered in a file folder marked x:\private\Andrew and placed by Mr. Eastwood on the company's server.

IMPACT ON THE VICTIMS

[34] All three victims filed Victim Impact Statements. The impact on all of them has been significant. Their expectations of privacy were grossly violated. They felt humiliated by this.

[35] I was also advised that two of the three had sued Mr. Eastwood civilly. One of these suits been settled. The other is still before the courts.

BACKGROUND OF MR. EASTWOOD

[36] I have been provided with a psychiatric report / risk assessment regarding Mr. Eastwood. From this and submissions by counsel, I learned the following.

[37] Mr. Eastwood is 53 years-old.

[38] He was born in England where he resided until he was 11 years of age. He emigrated to Canada in 1976. He is an only child.

[39] He attended school in the U.K. until grade 5 and continued his education in Canada thereafter.

[40] After completing Grade 13, he attended Trent University and studied political science and history but did not finish.

[41] He thereafter became a flight attendant but had workplace difficulties and was ultimately fired for inappropriate behaviour after a number of written reprimands.

[42] He started a home renovation business and then went into sales on a part-time then full-time basis. He has been in sales for many years continuing up to the present. He has worked for five companies over 30 years and had an entirely unblemished work record.

[43] After dating his ex-spouse for 4½ years they were married for 26 years. He describes them as not being compatible from the outset. The relationship was good for the initial 10 years however following this his spouse "changed" and became indifferent to him. Solely by his own account Mr. Eastwood indicated that there was infidelity on her part.

[44] They have been legally separated since May, 2015. There are two adult sons (21 and 19) born from this union.

[45] Mr. Eastwood has been living with his mother in the house that she owns.

[46] He was terminated from his employment in November, 2015 as a result of the offences but was hired shortly thereafter by his current employer – all prior to his arrest. He is now a divisional manager at a cosmetics company on a full-time basis.

[47] He had no prior criminal record and in fact had never been arrested or charged.

[48] He had no prior contact with mental health professionals. He has never been diagnosed with a mental health disorder. He was once prescribed antidepressant medications which made him verbally disinhibited leading to their discontinuation.

[49] He is a trace user of alcohol and consumes cannabis on average twice per month.

[50] He has had atrial fibrillation for 12 years and is followed by a cardiologist. He has bilateral hip arthritis as a consequence of sports involvement. He takes medications for his cardiac problems.

[51] Mr. Eastwood denied being sexually mistreated during his childhood. He was sexually educated in the school system. He reached puberty at approximately the age of 14 and began masturbating then. He described a high sex drive including masturbating daily during periods of his life. He denied a history of any gender dysphoria. He became sexually active with a peer age female at the age of 18.

[52] Mr. Eastwood estimated that he had had between 60 and 70 peer-aged, sexual partners over the course of his life. Once married he engaged in no infidelity.

[53] Mr. Eastwood reported a very limited history of using pornography in any form. He denied a history of using phone sex, attending massage parlors and exotic entertainment venues, or availing himself of the services of prostitutes.

[54] He denied a personal history of any sexual dysfunction of any kind.

[55] Upon a careful and extensive review of anomalous sexual interests, Mr. Eastwood denied any and all such behaviors, including those suggestive of an underlying predilection for voyeuristic activities.

[56] The psychiatrist concluded that, "given the singular absence of criminal record of a relevant nature, I would say there is entirely insufficient evidence to suggest that Mr. Eastwood suffers from any identifiable sexological diagnosis. By way of explanation, in some measure I would adopt Mr. Eastwood's own view of his behaviour, that being born out of narcissistic entitlement".

[57] As to his risk of similar future conduct employing the Static-99R, his score of 1 places him in the "Low'' range.

[58] At this juncture, the psychiatrist is not recommending any further sexological evaluation or formal treatment.

[59] Overall, Mr. Eastwood's "prognosis for remaining free of similar type of conduct in the future is good as evidenced by his apparently flawless vocational history to date".

ANALYSIS

[60] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

[61] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

[62] General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of the other principles.

[63] I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Eastwood and yet, at the same time, one that is responsive to his unique circumstances.

[64] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

Aggravating Factors

[65] The aggravating circumstances can be found in the facts surrounding the offences.

[66] He abused the trust he enjoyed as a senior vice-president of the company that employed the victims.

[67] He did this with three different women.

[68] With one of them, he did so three times, albeit all occurred within a short period of time on the same day.

[69] The impact on his victims has been significant. They experienced severe embarrassment and humiliation. They no longer trust men to the degree that they did before. It is uncertain when, if ever, they will get over this.

[70] I would describe the videos as being of poor quality but they still show enough that the women were justified in feeling as they did.

[71] This was a serious offence.

[72] There are some factors that are both aggravating and mitigating.

[73] Mr. Eastwood had no prior criminal record. He was a trusted and respected member of the community. This would usually be a mitigating factor when determining an appropriate sentence. In this case however I note that the same things can be said about virtually everyone who is charged with a breach of trust offence. It is only trusted and respected people who are put in a position where they are able to breach that trust.

[74] On the other hand, they are the people with the most to lose if they are caught. The loss of reputation is significant for these people. It certainly has been for Mr. Eastwood.

[75] On the other hand again, they are the people who can best be deterred by a significant sentence.

Mitigating Factors

[76] That brings me to the mitigating factors that are present here.

[77] Mr. Eastwood pled guilty. I take that to be an expression of remorse and an admission of responsibility. It also made it unnecessary for the victims to relive these events while testifying in court before strangers. I have given Mr. Eastwood a great deal of credit for this. Otherwise the sentence would have been more onerous than it is.

[78] There have been collateral consequences for Mr. Eastwood.

[79] He was fired from his job. He found another job but has taken a considerable cut in income.

[80] I will be including a provision for the maximum allowable hours of community service. Community service orders were introduced approximately 40 years ago. At the time they were touted as an alternative to imprisonment. Clearly they can have a deterrent effect. They also provide an element of restorative justice as they require offenders such as Mr. Eastwood to give something back to the community.

[81] A community service order can of course be part of either a conditional discharge or a suspended sentence.

[82] I am also placing Mr. Eastwood on probation for the maximum period allowed by law. He will have to earn his discharge over an extended period of time.

[83] Having regard to all of the above, I am satisfied that a conditional discharge with probation for three years would be in Mr. Eastwood's interests and that it would not be contrary to the public interest.

[84] I am satisfied that such a sentence, combined with the collateral consequences to Mr. Eastwood will deter any like-minded individuals from committing a similar offence.

SENTENCE

[85] For all of the above reasons, I sentence Mr. Eastwood as follows.

[86] He is granted a conditional discharge with a probation order to run for three years.

[87] The terms of the probation will require that Mr. Eastwood:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer immediately 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 his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with SY, EM or LC except through counsel or for required court attendances;

7. not be within 20 metres of any place where he knows them to live, work, go to school, frequent, or any place he knows them to be, except as stated above;

8. attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, including a sexual offender relapse prevention program or any other program recommended by his probation officer;

9. perform 240 hours of community service work. This work is to commence by August 15, 2018 and shall be completed at a rate of not less than 15 hours per month. He shall complete the work as directed by and to the satisfaction of the probation officer. He shall complete all of his community service hours by/within 18 months.

[88] I give Mr. Eastwood four months to pay the victim fine surcharge.

Released: July 12, 2018

Signed: Justice D.A. Harris