Ontario Court of Justice

Date: 2022-09-22 Court File No.: 22-70002861

Between: HIS MAJESTY THE KING

— AND —

DONTA EASTERBROOK

Sentencing Judgment

Before: Justice B. Jones

Heard on: May 9, July 5, 28, August 15 and September 22, 2022 Reasons for Judgment released on: September 22, 2022

Counsel: T. Schreiter, for the Crown D. Easterbrook, self-represented

Jones J.:

Introduction

[1] Donta Easterbrook entered a guilty plea to one count of assault with a weapon contrary to section 267 (a) of the Criminal Code.

[2] Mr. Easterbrook chose to represent himself. He was given multiple opportunities to speak with duty counsel and was informed of his ability to apply for legal aid to have a private lawyer represent him. He insisted he did not want a lawyer. On May 9, 2022, I was satisfied he had thoroughly considered his right to counsel but ultimately wished to exercise his right to represent himself.

[3] The Crown proceeded by indictment. Mr. Easterbrook waived his right to a trial in the Superior Court of Justice (including with a jury) and chose to be tried before me. He entered a guilty plea. A pre-sentence report (PSR) was ordered.

[4] The Crown sought a sentence of 2 years less a day jail plus a period of probation. The Crown also requested a DNA order pursuant to Criminal Code section 487.051(1) as the offence is a primary designated offence, and a weapons prohibition order pursuant to Criminal Code section 109 for life.

[5] Mr. Easterbrook did not make submissions on an appropriate sentence, but expressed interest in a sentence within the range of 18 months after I indicated that likely fell within the appropriate range.

The Offence

[6] On April 19, 2022, Mario Greco (30) was sitting on a bench in St. George subway station. He was approached by Mr. Easterbrook. Following a brief conversation, Mr. Easterbrook stabbed Mr. Greco on the right side of his neck with an unknown sharp object.

[7] Mr. Easterbrook fled the scene but video surveillance cameras captured the entire incident. Mr. Greco was taken to the hospital and treated for his injury. While he suffered a stab wound that measured approximately one-inch long, he was released from hospital that same day. Mercifully, no vital organs were injured and he has made a full physical recovery.

[8] The assault was an unprovoked, random attack on an innocent citizen.

Background of the Offender

[9] Mr. Easterbook is 23 years old. He has a prior adult criminal record consisting of four convictions. Two of those convictions are for crimes of violence. On April 5, 2018, he was convicted of pointing a firearm, assault and uttering a threat and was sentenced to nine months’ jail in addition to 112 days of pre-sentence custody, and 18 months probation. On June 22, 2022, he was convicted of assaulting a peace officer and was sentenced to 12 days jail in addition to 18 days credit for pre-sentence custody.

[10] His grandmother, Ms. Joanne Hartleib, provided detailed information about his childhood. He was raised in Stratford, Ontario. He has three brothers. His parents separated before he entered school and his father maintained custody of all four children. After the separation his father entered into a common-law relationship with a new partner. Mr. Easterbrook reported that this new partner was physically, mentally, and emotionally abusive to him. Ms. Hartleib recalled all the children were fearful of this person.

[11] Mr. Easterbrook did not complete high school. He was diagnosed with Attention Deficient Hyperactivity Disorder at a young age. He was expelled from secondary school in his first year due to truancy and engaging in fights. He worked with his father for a period of time and also obtained a job at a salt factory in Seaforth, Ontario for one year. For the past two years he has received ODSP. Ms. Hartlieb indicated he had difficultly maintaining employment in the past.

[12] Mr. Easterbrook uses crystal methamphetamine regularly. He began as an adolescent. He does not believe drug use played a role in this offence, and I have no evidence that it did. However, he indicated that he intends to continue using substances once released from custody. Ms. Hartlieb informed the author of the PSR that he began using drugs before he was even an adolescent and this is a major problem in his life. She has noticed he is prone to anger when he is using illicit substances. While under their influence he has been involved in altercations with his brothers. He has never pursued treatment nor sought help. She believes he is a habitual drug user.

[13] He has been previously admitted to a mental health hospital in Goderich, Ontario. He was diagnosed with post-traumatic stress disorder, anxiety, and depression. While he was prescribed medication, he admitted that he only takes his medication when he is withdrawing from crystal methamphetamine. Ms. Hartlieb indicated Mr. Easterbrook’s father made many attempts to take him to appointments to address his mental health issues. He would not participate or would not follow through. When the author of the PSR asked him about treatment, Mr. Easterbrook waivered on whether or not he felt he needed treatment to address his drug use.

[14] In 2019, when Mr. Easterbrook was subject to a probation order, his probation officer at the time attended at the psychiatric hospital in Goderich to observe him. He showed obvious signs of mental distress. He appeared to be engaging in conversation with people who were not present.

[15] When asked about the offence, Mr. Easterbrook disputed the victim’s claims they did not know one another. He believes the victim has “ratted” on his associates and expressed no regret for what occurred.

[16] Unfortunately, upon his eventual release from custody, he is not able to return to the care of his grandmother or father. His family members have indicated they have had “enough” and he is not welcome at their residences. She does hope he will seek help in a rehabilitation facility.

Victim Impact Information

[17] Mr. Greco worried that he would die from the assault. He is reminded of the incident regularly. Even if he is poked by someone as a joke, it triggers a flashback. He feels concerned for his own safety. He no longer trusts people as easily. The thought of returning to the subway is particularly difficult for him.

[18] The stab wound was less than a centimetre deep but within extremely close proximity to his carotid artery. He required three stitches to close the wound. He has been left with a red-blemished scar.

[19] He was unable to work for four days and lost income as a result.

Principles of Sentencing

[20] Section 718 of the Criminal Code states that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions” which are based on the following list of sentencing objectives and principles:

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

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

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

(d) to assist in rehabilitating offenders;

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

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[21] The fundamental principle of sentencing is proportionality. A sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender”: see Criminal Code section 718.1; R. v. Suter, 2018 SCC 34 at para. 4; R. v. Friesen, 2020 SCC 9 at para. 30. As explained by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 at para. 12 the “more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence will be”.

[22] With respect to crimes of significant personal violence, a court must emphasize general deterrence and denunciation as the primary sentencing principles. This is of particular importance in assault cases involving a weapon: see R. v. Hamlyn, 2016 ABCA 127 at para. 21.

[23] Mr. Easterbrook’s sentence must also reflect any mitigating and aggravating circumstances. As a young man with a limited prior adult criminal record, rehabilitation and specific deterrence would typically take on particular significance for Mr. Easterbrook’s sentencing, as would the principle of restraint. However, serious crimes of personal violence provide an exception to this general rule. In these cases, the objectives of denunciation and general deterrence are to be given much greater weight: see R. v. Batisse, 2009 ONCA 114 at para. 34; R. v. Mohenu, 2019 ONCA 291 at para. 12.

Aggravating and Mitigating Factors

[24] There are several significant aggravating factors I must consider:

• This was a sudden, unprovoked attack on defenceless victim who had no opportunity to defend himself;
• Mr. Greco suffered a stab wound to the neck, a highly vulnerable part of the human body where the risk of serious injury or even death was present;
• The assault was committed in a subway station – a place frequented by many members of the public where commuters should feel safe and able to travel freely without fear of being subject to violence;
• The offence has taken a significant physical and emotional toll on Mr. Greco.

[25] By way of a mitigating factor, Mr. Easterbrook entered a very early guilty plea, sparing the victim from having to testify and saving the courts considerable resources that would be required for this matter to proceed through to a trial.

[26] Unfortunately, Mr. Easterbrook has expressed mixed sentiments regarding his remorse for this offence. He told me in court on one occasion that he was sorry for what he did. However, he also informed the author of the PSR that he had no regrets for the offence. The Court’s perception of a lack of remorse should not be considered aggravating. However, in very unusual circumstances, it can be considered as aggravating where the accused’s attitude towards the crime or victim demonstrates a substantial likelihood of future dangerousness. The Court still must be mindful not to increase the sentence beyond what is proportionate having regard to the circumstances of the particular offence: see R. v. Valentini, [1999] 132 C.C.C. (3d) 262 (Ont. C.A.); R. v. Reeve, 2020 ONCA 381 at paras 12-13.

Assault With A Weapon

[27] Assault with a weapon, contrary to section 267 (a) of the Criminal Code, is punishable by a maximum sentence of 10 years. The range of sentencing for this offence where significant injuries are caused to a victim or the risk of those injuries was paramount is between upper reformatory sentences of 18 months to two years less a day and penitentiary sentences as high as 4 years. Where the injuries are serious enough to constitute the offence of aggravated assault, the range extends even higher: see R. v. Tourville, 2011 ONSC 1677; R. v. Jones, 2013 ONCA 245; R. v. Pomanti, 2017 ONCA 48; and R. v. Seerattan, 2019 ONSC 4340. In exceptional cases, and those involving first-time offenders with excellent rehabilitative prospects, non-custodial sentences have been imposed.

[28] In R. c. Foster, 2020 QCCA 1172, the offender was involved in a bar fight. He punched the victim in the face, causing him to fall to the ground. He then kicked him in the head. No weapon was used. The victim suffered severe injuries requiring hospital treatment for eleven days. The respondent pleaded guilty and had diagnosed mental health concerns although had shown an unwillingness to follow medical treatment. The Court imposed a custodial sentence of 15 months.

[29] In R. v. Horner, 2018 ONCA 971, the appellant was a first-time offender. He was convicted of assault with a weapon on his intimate partner. While she had her back to him, he approached her with a knife. There was a struggle and her hands were badly cut. She was traumatized by the violence. His sentence of 13 months custody and 2 years probation was upheld on appeal.

[30] In Hamlyn, supra, the Alberta Court of Appeal imposed a sentence of 21 months custody and for an offender who had attacked a defenceless victim with a screwdriver. He caused injuries to the victim’s neck, head and face. It was a “violent, unprovoked attack” with potentially life-endangering consequences.

[31] In R. v. Jones, 2013 ONCA 245, the appellant was convicted of aggravated assault and two counts of assault with a weapon (a knife.) He was Indigenous. The victim of his first attack suffered serious injuries and it had a “devastating” emotional impact upon her. The Court of Appeal upheld a sentence of 23 months custody.

[32] Incidents of violence that occur on public transit have unique considerations. In R. v. Brown, the offender approached the victim on a busy subway platform in Toronto. He attempted to push the victim – a complete stranger to him – onto the subway tracks. He was apprehended by TTC officers before he could continue the assault. The sentencing court noted the victim could have been killed. The offender was 32 years old and Indigenous. He expressed remorse. He was sentenced to 18 months custody and three years’ probation. I will expand on the significance of Mr. Easterbrook’s assault occurring on public transit later in these reasons.

[33] While Mr. Easterbrook did not cause life-threatening or extremely serious injuries to his victim, that was simply the result of good fortune. By stabbing Mr. Greco in the neck he could have easily caused such an injury. In R. v. Wheeler, at para. 5, the offender was found guilty of assault with a weapon and aggravated assault for stabbing the victim in the cheek. His moral culpability was described as being “extremely high” and the court noted it was “pure luck he did not kill” the victim. While I do not find I can come to such a conclusion on the evidence presented in this case, I am satisfied the physical injuries to Mr. Greco could have been far more serious.

Mental Health Considerations

[34] For mental health to be considered a mitigating factor in sentencing, the offender must show a causal link between their illness and their criminal conduct. That is, the illness must be an underlying reason for the conduct. There must also be evidence that a lengthy sentence would have a serious negative effect on the offender such that it should be reduced on compassionate grounds: see R. v. Fabbro, 2021 ONCA 494, at para. 25.

[35] Mr. Easterbrook appears to suffer from a significant drug addiction issue and has demonstrated signs of mental illness in the past. He has also exhibited troubling signs of the negative effects of illicit substance use on his ability to function normally on a daily basis. He has been treated at mental health hospitals for symptoms possibly consistent with drug-induced behavioral disorders. I have no evidence that the offence in this case occurred as a result of any of these conditions. While Mr. Easterbook should certainly seek help for his afflictions, I do not find they are mitigating in this case.

Rehabilitative Potential

[36] Mr. Easterbrook is very young and has ample opportunity to rehabilitate himself. Unfortunately he seems to lack any insight into the harmful nature of his regular drug use. He is at best equivocal on seeking treatment in the future. He intends to continue using drugs upon his release. He has rejected efforts at treatment in the past.

[37] It is very unfortunate that his own family members are unwilling to offer their support to him once he re-joins the community. That is their choice. But it leaves Mr. Easterbrook without any support network beyond what can be provided through a long-term probation order. In order to ensure he gets the treatment he needs and is connected to appropriate supports in the community, one must be imposed. In the absence of any supervision or treatment, he remains at a significant risk to re-offend.

Pre-Trial Detention Credit

[38] Mr. Easterbrook has been in custody since his arrest on April 20, 2022 at the Toronto South Detention Centre for 155 real days. 12 of those days overlapped with a short sentence he received on June 12 of this year. I therefore deduct eight of those days form the credit he may receive for this case, as he would have almost certainly been released before serving the full 12 days had he not been in custody for this offence as well. He is entitled to 1.5:1 credit (Summers credit) therefore for 220 days, or just over 7 months.

[39] In R. v. Green, 2021 ONCA 932, the Ontario Court of Appeal held that sentencing judges are obligated to consider the harshness of an accused person’s pre-sentence custodial conditions. Those conditions may have a mitigating effect on sentence: see also R. v. Marshall, 2021 ONCA 344 at paras. 50-53.

[40] Inmates in the Toronto South are subject to difficult pre-trial detention conditions resulting in increased hardship. These conditions include the increased use of lockdowns, the absence of staff often due to illness, and the lack of regular access to basic daily necessities such as showers. Inmates will also face a greater risk of exposure to COVID-19 simply by virtue of being in close quarters. I accept Mr. Easterbrook is entitled to a reduction in his sentence due to the conditions in the Toronto South Detention Centre. The final sentence imposed must not be disproportionate to the gravity of the offence or the moral blameworthiness of the offender however: see R. v. R.C., 2022 ONCA 389 at para. 10.

Conclusion

[41] The residents of Toronto deserve to feel safe when they make use of public transit. Those who commit acts of targeted, intentional violence against unsuspecting victims must know they will pay a significant price for their criminal actions.

[42] Mr. Easterbrook’s assault on Mr. Greco was dangerous, violent, and completely unjustified. It showed utter contempt for his life and safety. It could have resulted in serious injury. Of significant importance, he did not only harm Mr. Greco. His actions have left every innocent member of the public to wonder if they would be safe when they next chose to enter a subway station. Creating this risk of danger in a public space where thousands of people who use the TTC on a daily basis can and should reasonably expect their safety and bodily integrity to be respected is a complete affront to our shared values. It understandably causes fear and anxiety.

[43] Prior courts have recognized the “special vulnerability of subway passengers” and have emphasized the central importance of protecting them from senseless crimes of violence: see R. v. Elie, 2015 ONSC 300 at para. 20; R. v. Deeb, 2013 ONSC 7870 at para. 27; R. v. Brown at paras. 46-7; R. v. Cheong, [1998] O.J. No. 5857 (Gen. Div.) at para. 22; R. v. Apputhurai, [1994] O.J. No. 3127 (Gen. Div.) at para. 6.

[44] As Justice Watt (as he then was) commented in Cheong, for riders of public transit, the sense of personal security that accompanies what is otherwise a regular, normal occurrence, may be forever shattered by these crimes: see para. 22.

[45] Mr. Easterbrook’s personal circumstances are somewhat concerning. To his credit, he entered a very early guilty plea and has always expressed his desire to resolve the case as quickly as possible. He has spared the victim having to testify and the courts considerable resources. However, his prior history of non-compliance with treatment options for mental health or substance abuse is very troubling. His stated intention to continue to use drugs upon his release from custody raises the risk of him re-offending considerably. While he has potential to rehabilitate himself, he has yet to take the steps to demonstrate a genuine commitment in that regard.

[46] I find an appropriate sentence would have been a two year jail sentence less credit for pre-trial custody. In light of the extremely early resolution, the conditions at the TSDC, and the Crown’s fair position, I have decided to reduce that to an approximate 18 month jail sentence. Since Mr. Easterbrook has 7 months and 10 days credit, he will be sentenced to an additional 10 months in custody followed by a three year probation order.

[47] The terms of his probation order will be:

• Keep the peace and be of good behaviour;
• Report to a probation officer within 24 hours of your release from custody and thereafter as directed;
• Reside at an address approved of by your probation officer;
• Do not possess any weapons as defined by the Criminal Code;
• Do not have any contact, directly or indirectly, with Mario Greco;
• Do not attend within 100m of anywhere you know Mario Greco to live, work or happen to be;
• Take any counseling or programming as directed by your probation officer;
• Sign any required consents or releases so your probation officer can monitor your compliance with the terms of this order;
• Make reasonable efforts to seek and maintain employment or pursue educational or vocational training.

[48] He will provide a DNA sample as this is a primary designated offence.

[49] There will be a section 109 weapons prohibition order for life.

[50] The victim fine surcharge is waived.

Released: September 22, 2022 Signed: Justice Brock Jones