R. v. Eastman, 2019 ONSC 5984

COURT FILE NO.: CR/17/70000636/0000

DATE: 20191017

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

• and -

MELVIN EASTMAN

Respondent

C. Brannagan and M. Cole, for the Crown/Applicant

T. David, for the Respondent, Mr. Melvin Eastman

HEARD: September 9, 10, 11, 18 and 19, 2019

Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4(2.1) of the Criminal Code of Canada

Kelly j.

RULING RE:

Dangerous Offender Designation and Sentencing

[1] Mr. Melvin Eastman has been convicted of the following offences after a judge alone trial before me: overcome resistance by choking, uttering a threat to cause bodily harm, forcible confinement and sexual assault causing bodily harm.[^1] This is not the first time he has been convicted of violent sexual offences. It is the third.

[2] Mr. Eastman appears before me now for sentencing. Crown Counsel has brought an application for an order declaring Mr. Eastman a Dangerous Offender. They ask that the Court impose an indeterminate sentence.

[3] Counsel for Mr. Eastman concedes that Mr. Eastman is properly designated a Dangerous Offender. However, he submits that the appropriate sentence is one of an additional 3.5 years followed by a Long-Term Supervision Order for 10 years. Mr. Eastman has been in custody since his arrest on September 11, 2016 (3 years, 1 month, 7 days).

[4] I find that Mr. Eastman is properly designated a Dangerous Offender and I order that he be subject to an indeterminate sentence. What follows are my reasons.

The Procedural History

[5] On April 25, 2018 Mr. Eastman was convicted of the above-mentioned offences: overcome resistance by choking, uttering a threat to cause bodily harm, forcible confinement and sexual assault causing bodily harm. These are the predicate offences that caused Crown Counsel to bring an application to have Mr. Eastman designated a Dangerous Offender, pursuant to s. 753 of the Criminal Code.

[6] Crown Counsel sought a court ordered assessment of Mr. Eastman, pursuant to s. 752.1(2) of the Criminal Code. Mr. Eastman consented. The assessment was provided to the Court by Dr. Derek Pallandi[^2] on October 17, 2018. Dr. Pallandi testified during the proceeding.

[7] Several documents were filed, including institutional records from prior periods of Mr. Eastman’s incarceration. Ms. Cathy Phillips, a Parole Office Supervisor also testified. No evidence was presented by Mr. Eastman during this proceeding. However, he did file a three-page letter apologizing for his conduct and outlining steps he plans to take to assist in his rehabilitation.

An Overview of the Legislative Scheme

[8] Mr. Eastman committed the predicate offences in 2016. Accordingly, this application is governed by the current legislative scheme outlined in the Criminal Code enacted in 2008.

[9] Section 753(1) of the Criminal Code defines the circumstances in which a person may be designated a Dangerous Offender. Crown Counsel seeks to have Mr. Eastman declared a Dangerous Offender, pursuant to ss. 753(1)(a)(i), (ii) and 753(1)(b). As such, Crown Counsel must prove the following two things:

a. that the predicate offence is a serious personal injury offence as listed in s. 752; and

b. that Mr. Eastman is a Dangerous Offender because he constitutes a threat to the life, safety or physical or mental well-being of other persons.

[10] Should Mr. Eastman meet the definition of a Dangerous Offender, the court “shall” designate him as such. There is no discretion. The court’s discretion is found in the application of the appropriate sentence in s. 753(4) of the Criminal Code.

[11] Section 753(4) permits the following sentences to be imposed once a person has been designated a Dangerous Offender: indeterminate detention; at least two years’ imprisonment and a Long-Term Supervision Order of up to 10 years (an “LTSO”); or a conventional determinate sentence.

[12] In light of this legislative scheme, I will now consider on what basis Mr. Eastman is designated a Dangerous Offender. I will then address the appropriate sentence.

Is Mr. Eastman a Dangerous Offender?

[13] To determine whether Mr. Eastman is a Dangerous Offender, the court is required to first consider whether the predicate offences are “serious personal injury offences” and secondly, to determine whether Mr. Eastman constitutes a threat to other persons as defined in ss. 753(1)(a)(i), (ii) or 753(1)(b) of the Criminal Code.

a. Are the predicate offences “serious personal injury offences”?

[14] The relevant portion of section 752 defines “a serious personal injury offence” as follows:

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for 10 years or more.

[15] I am satisfied that the predicate offences are serious personal injury offences as defined by s. 752 of the Criminal Code. Overcome resistance by choking, forcible confinement and sexual assault causing bodily harm in these circumstances are indictable offences involving Mr. Eastman’s use of violence against the victim. Overcome resistance by choking, on its own, may attract a life sentence and accordingly, Mr. Eastman may be sentenced to imprisonment for 10 years or more.

b. Does Mr. Eastman constitute a threat?

[16] The next consideration is to determine on what basis Mr. Eastman is properly designated a Dangerous Offender. If Crown Counsel proves any one of the criteria listed in s. 753(1) of the Criminal Code beyond a reasonable doubt, the court shall find the offender to be a Dangerous Offender. The relevant portions of that section provide as follows:

753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behavior, ­or …

(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [Emphasis added]

c. Is the predicate offence part of a pattern of repetitive behavior pursuant to [s. 753(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(a)(i) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)?

[17] Section 753(1)(a)(i) of the Criminal Code and the supporting case law states that it must be established to the satisfaction of the court that the predicate offence is not an isolated occurrence, but part of a pattern of repetitive behaviour by the offender which he failed to control.[^3] I am satisfied beyond a reasonable doubt that the evidentiary basis upon which this application is brought is sufficient to establish a pattern of repetitive behaviour.

[18] Guidance for the definition of the phrase: “a pattern of repetitive behaviour” may be found in the case of R. v. Hogg.[^4] The Court concluded, at paras. 40 and 43, as follows:

¶40 To summarize, the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. This will ensure that the level of gravity of the behaviour is the same, so that the concern raised by Marshall J.A. [in R. v. Newman[^5]] – that the last straw could be a much more minor infraction – could not result in a dangerous offender designation. However, the offences need not be the same in every detail; that would unduly restrict the application of the section.

¶43 Although the pattern differed in the detail of how the offences were carried out, the predicate and past offences still represented a pattern of repetitive violent behaviour that made it likely that the appellant would continue to commit similar acts of violence in order to have sexual gratification in the future. …

[Footnote added]

[19] Based on these criteria, I am satisfied that the predicate offences committed by Mr. Eastman are not isolated but form a pattern of repetitive behavior that he is unable to control. A description of each of the three incidents giving rise to the convictions against Mr. Eastman for sexual offences are set out below. They support this conclusion.

2018: Convictions re: Ms. J.L.

[20] The facts giving rise to the convictions regarding Ms. J.L. were set out in my reasons dated April 25, 2018. They may be summarized as follows:

a. Ms. J.L. met Mr. Eastman shortly before the incident, on September 10, 2016. They began to “hang out”. She had been to his apartment on a number of occasions. Sometimes she would supply the alcohol and crack cocaine. On other occasions, Mr. Eastman would. Since she had provided the alcohol and drugs on the last occasion, Mr. Eastman was going to supply them on the night in question.

b. Ms. J.L. arrived at Mr. Eastman’s apartment in the early evening hours of September 9, 2016. They watched television, listened to music, danced, drank beer and smoked crack cocaine.

c. When a song came on that she enjoyed, Ms. J.L. started to dance. Mr. Eastman began groping her, pressing his erect penis against her. In response to the groping, she said “whoa, what are you doing here”? Mr. Eastman continued, and she moved away towards the bathroom.

d. When Ms. J.L. moved away, Mr. Eastman pushed her up against the wall and began rubbing Ms. J.L.. She said “whoa” and tried to move away again. Mr. Eastman pushed her onto the couch. She landed on her back. Mr. Eastman got on top of her. She said: “no, what are you doing?” to which he responded: “You know what, you lay still and be quiet. Let me do my thing and I won’t rape you”, or words to that affect. Mr. Eastman pinned Ms. J.L. on the couch by grabbing her arms. He straddled her so that she could not move her legs. (Ms. J.L. was 5’10” and 130 pounds. Mr. Eastman was 5’11” and 180 pounds.)

e. Ms. J.L. told Mr. Eastman to “stop”. He responded, “if you move, that is bad for you”. Notwithstanding this caution, Ms. J.L. moved. She started crying and making noise. Ms. J.L. described that Mr. Eastman got upset, “the look in his eyes was scary” and he was a “totally different person”.

f. Mr. Eastman then began ripping Ms. J.L.’s clothes. Ms. J.L. kept one hand on her pants to keep them up and she was struggling. She continued to say “stop” and “no”. The more she screamed and cried, the worse it got. Mr. Eastman said: “I told you to listen. You did not listen J..”

g. Mr. Eastman started to punch Ms. J.L. with a full fist. He hit her eyes, temples and forehead. She does not know the number of times she was punched but recalls that it was quite a few. Mr. Eastman strangled Ms. J.L. and she thought she was going to die. It was difficult for her to breathe and she was unsure if she would lose consciousness.

h. Mr. Eastman was eventually able to remove Ms. J.L.’s pants and he managed to get his own pants down. He then started penetrating her vagina with his penis. Ms. J.L. described herself as “scared”, “terrified” and “disgusted”.

i. Ms. J.L. then started employing other strategies to make the abuse stop. She told Mr. Eastman that she had “Aids” and “Hep C”. Mr. Eastman responded, “You have Hep C? So do I. Welcome to the club.” That did not work. A second strategy that Ms. J.L. employed was to urinate hoping he would become disgusted and stop abusing her. It worked. Eventually, Mr. Eastman permitted Ms. J.L. to get up from the couch and go to the bathroom but he told her, “don’t you dare try to get away”. She did.

j. After Ms. J.L. went to the bathroom, she managed to escape the apartment. The police were called.

2007: Convictions re: Ms. K.W.

[21] On April 3, 2007 Mr. Eastman was convicted of sexual assault causing bodily harm. A sentence of four years was imposed. The facts giving rise to this conviction may be summarized as follows:

a. Ms. K.W. met Mr. Eastman through a mutual friend. They had spent the evening of June 15, 2006 smoking crack cocaine. At 5:00 a.m., Mr. Eastman was driving Ms. K.W.’s vehicle from Toronto to Mississauga. Ms. K.W. asked Mr. Eastman to stop the vehicle because he was in no condition to drive. A verbal argument ensued.

b. Ms. K.W. made several attempts to put the vehicle in neutral to prevent Mr. Eastman from colliding with the vehicle in front. This angered Mr. Eastman. Using his hand, he began striking Ms. K.W. several times in the mouth and left eye.

c. Ms. K.W. feigned unconsciousness to prevent an escalation in the violence. Believing that Ms. K.W. was unconscious, Mr. Eastman began to rub her vagina over top of her clothing. He then unzipped her pants and digitally penetrated her.

d. Mr. Eastman eventually parked the vehicle in an industrial complex. He reclined the passenger seat. He then pulled off Ms. K.W.’s pants and underwear. Mr. Eastman attempted forced vaginal intercourse. Ms. K.W. suffered swelling and bruising to her right upper lip and swelling and bruising to her left eye. Mr. Eastman was arrested thereafter.

1997: Convictions Re: Ms. G.R.

[22] In 1997, Mr. Eastman was convicted of sexual assault causing bodily harm, weapons dangerous, assault with a weapon, uttering threats, theft over $1,000 and attempt obstruct justice. A sentence of four years was imposed. The facts giving rise to these convictions may be summarized as follows:

a. On October 18, 1993, Mr. Eastman was in the area of Regent Park in Toronto where he met the complainant, Ms. G.R., for the first time. They struck up a conversation. Ms. G.R. invited Mr. Eastman to come home with her to share some drugs. They did so and used crack cocaine.

b. Mr. Eastman then forcibly removed some of Ms. G.R.’ clothing. She yelled and tried to escape her apartment but was prevented from doing so by Mr. Eastman. He forced her onto a bed and removed the remainder of her clothes. He placed a knife to her throat, threatening that he was going to kill her. He punched Ms. G.R. about her body while he vaginally raped her. He threatened to kill her if she told anybody what happened.

c. Before leaving the apartment, Mr. Eastman stole several items worth more than $1,000. Ms. G.R. phoned the police and was taken to the hospital and treated for her injuries.

[23] These three incidents give rise to my finding that repetitive behavior is established. There are common elements to the offences which may be summarized as follows:

a. all victims were women;

b. all victims were vulnerable;

c. Mr. Eastman was persistent and sexually aggressive on all three occasions;

d. illegal narcotics provided a backdrop for all offences;

e. the violence escalated quickly; and

f. the victims’ efforts to curtail Mr. Eastman’s aggression failed.

[24] I am satisfied that, based on the totality of the circumstances, the predicate offences are not isolated occurrences, but rather part of repetitive behaviour exhibited by Mr. Eastman. The crimes described above are violent in nature. There is similarity not only with respect to the types of offences committed by Mr. Eastman, but also in the degree of violence or aggression inflicted on his victims. These similarities give rise to the pattern of repetitive behaviour.[^6]

[25] For the abovementioned reasons, I designate Mr. Eastman a Dangerous Offender pursuant to s. 753(1)(a)(i) of the Criminal Code.

d. Has Crown Counsel satisfied the indifference requirement pursuant to s. 753(1)(a)(ii)?

[26] Section 753(1)(a)(ii) of the Criminal Code requires that Crown Counsel demonstrate a pattern of persistent and aggressive behavior with a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to others. Section 753(1)(a)(ii) is intended to deal with an individual who is callous and remorseless.

[27] A review of the offender’s behavior is not limited to the time of the offence. In addition, the attitude of the offender may be examined more broadly to identify the “truly evil personality type who has no compassion for others at any time”.[^7] Does Mr. Eastman care about the likely consequences of his actions? Or, is he indifferent to the damage his conduct may cause?[^8]

[28] There is no doubt that Mr. Eastman was indifferent to the damage he caused at the time he committed the offences. The victims were traumatized by Mr. Eastman during the incidents. They tried to de-escalate Mr. Eastman’s conduct. It didn’t work. They fought back. It didn’t work. He was indifferent to their pleas and indifferent to the consequences of his behaviour.

[29] I am satisfied that when the offences are viewed as a whole, Mr. Eastman has shown a pattern of persistent aggressive behaviour and a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons. Accordingly, I designate Mr. Eastman a Dangerous Offender pursuant to s. 753(1)(a)(ii) of the Criminal Code.

e. Is there a likelihood that Mr. Eastman will cause injury, pain or other evil to others through a failure to control his sexual impulses?

[30] The last prong to be considered in designating Mr. Eastman a Dangerous Offender is found in s. 753(1)(b) of the Criminal Code. This section permits the designation of Dangerous Offender to be imposed if there is a likelihood that the offender will cause injury, pain or other evil to others through a failure to control their sexual impulses.

[31] The record before the Court demonstrates that Mr. Eastman continues to pose a substantial future risk of harm to the public and represents a sustained failure to control his sexual impulses. Those factors include the following, all of which were set out in Crown Counsel’s submissions, some of which will be set out more fully below[^9]:

a. his persistent and incorrigible sexually aggressive and criminal behaviour;

b. his admission that he chooses and preys on vulnerable women who are less likely to report sexual assaults to the authorities;

c. the viciousness of his offences and the severe psychological effects they have had on his vulnerable victims;

d. his persistent lack of remorse, victim-blaming, and the minimization of his role in his own criminal conduct;

e. his decades-long, near unabated addiction and continued failure to abstain from crack cocaine;

f. his lack of insight into the role that his addiction to crack cocaine has played in his criminality;

g. his inability or refusal to integrate any knowledge from the institutional programming that he has received throughout the years into his life while in the community;

h. his documented inability to be managed in the community while on parole, including testing positive for cocaine in urinalysis testing while at two community correctional centres;

i. his high actuarial scores on risk assessment testing; and

j. his general lack of respect for the rule of law though his documented inability or unwillingness to abide by court orders or respect the rights of others.

[32] Dr. Pallandi testified that Mr. Eastman’s risk to reoffend is “high”. He reaches this conclusion despite his age and participation in treatment programs.

[33] I accept that Mr. Eastman presents a substantial risk of committing harmful offences through a sustained intractability of his conduct. For these reasons, I find that Mr. Eastman meets the criteria for being designated a Dangerous Offender pursuant to s. 753(1)(b).

[34] Having concluded that Mr. Eastman is properly designated a Dangerous Offender pursuant to three separate subsections of s. 753, I will turn to a consideration of the appropriate sentence.

What is the appropriate sentence?

[35] Section 753(4) of the Criminal Code allows the court discretion as to the sentence to be imposed on Mr. Eastman, whom I have designated a Dangerous Offender.[^10] There are three options in sentencing Mr. Eastman: the imposition of a determinate sentence; the imposition of a determinate sentence followed by an LTSO; and the imposition of an indeterminate sentence.

[36] Section 753(4.1) provides as follows:

The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b)[^11] or (c)[^12] will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[37] The framework for sentencing was set out in R. v. Boutilier[^13] at para. 70 as follows:

The framework a sentencing judge should adopt in exercising his or her discretion under s. 753(4.1) has been aptly explained by Justice Tuck-Jackson of the Ontario Court of Justice: R. v. Crowe, No. 10-10013990, March 22, 2017. First, if the court is satisfied that a conventional sentence, which may include a period of probation, if available in law, will adequately protect the public against the commission of murder or a serious personal injury offence, then that sentence must be imposed. If the court is not satisfied that this is the case, then it must proceed to a second assessment and determine whether it is satisfied that a conventional sentence of a minimum of 2 years of imprisonment, followed by a long-term supervision order for a period that does not exceed 10 years, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. If the answer is "yes", then that sentence must be imposed. If the answer is "no", then the court must proceed to the third step and impose a detention in a penitentiary for an indeterminate period of time. Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required.

[38] If the goal of public protection can be achieved without the imposition of an indeterminate period of detention, the lesser sentence must be imposed.[^14]

[39] I will now consider these principles in the context of this application and explain why I have concluded that an indeterminate sentence should be imposed.

a. Is a determinate sentence appropriate?

[40] Neither counsel submits that a determinate sentence is appropriate. I agree and accordingly, it is not necessary for me to deal with this option in sentencing Mr. Eastman.

i. Is a determinate sentence, together with a Long-Term Supervision Order appropriate?

[41] Counsel for Mr. Eastman submits that he should be given a further 3.5-year sentence in addition to the time he has already served since September 11, 2016. Thereafter, he should be subject to Long-Term Supervision Order. I disagree.

[42] In considering whether a determinate sentence followed by an LTSO is appropriate, Crown Counsel does not have the onus to prove beyond a reasonable doubt that there is no reasonable possibility of eventual control of the risk posed by the offender to the community. If the sentencing judge is uncertain whether there is a reasonable expectation that a lesser measure will adequately protect the public, then the sentencing judge should exercise discretion and impose an indeterminate sentence.[^15]

[43] The protection of the public is the paramount consideration in this exercise of discretion. Our Court of Appeal expressed this principle in R. v. D.V.B.,[^16] as follows:

[I]n a contest between an individual offender’s interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail.[^17]

[44] Our Court of Appeal has commented on the considerations for imposing an LTSO:

Resort to the long-term offender regime is appropriate only where there is evidence that an offender can be meaningfully treated, so that the offender's risk to the public can be controlled at an acceptable level, within a determinate period of time. A mere hope that treatment will be successful, or simple optimism that there is a reasonable possibility of eventual control of the offender's risk in the community, is insufficient to ground a determinate sentence: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357.[^18]

[Emphasis added]

[45] I am not satisfied that Mr. Eastman can be meaningfully treated and closely supervised to an extent that his risk to the public can be controlled at an acceptable level. Any plan that Mr. Eastman can be meaningfully treated is based on the passage of time, hope and optimism. This is insufficient. My finding is based not only on the offences committed and described above, but also on a consideration of the following circumstances regarding Mr. Eastman, much of which is also set out in Appendix “A”.

Family Background

[46] Mr. Eastman is 55 years of age. He was born in London, England. He moved to Barbados and eventually to Canada in 1968. He is a Canadian citizen.

[47] Mr. Eastman’s father was employed in various capacities: as a bus driver in London, as a mechanic and as a welder. He was employed at the Metro West Detention Centre as well. Thereafter, he was a driving educator and a real estate broker. He is recently deceased.

[48] Mr. Eastman’s mother was a psychiatric registered nurse working at various health service providers, including the Hospital for Sick Children and the Centre for Addiction and Mental Health. Mr. Eastman appears to have one older and one younger sister. There is no evidence of recent contact between Mr. Eastman and his family.

[49] There appears to be little family support for Mr. Eastman in the community. Further, Dr. Pallandi concluded, “While family support is both laudable and most times valuable, in this case I would not support the notion that his family be placed in the position of providing any instrumental oversight of him or his behaviours.”

Education and Employment History

[50] Mr. Eastman was educated at various schools in the Toronto area. He graduated from secondary school in 1982. Mr. Eastman had an interest in law enforcement, so he attended at Centennial College for three months in the law program. He then began studies to become an electrician at George Brown College. He attended for six months but discontinued the program, suggesting that it was “too hard” for him.

[51] Mr. Eastman has worked in various capacities since he was a youth. He has worked in a bar, as a parking enforcement officer and as a driving instructor. He has driven a truck, worked as a disc jockey and taught martial arts. He has also been employed in shipping and receiving, as a cook, a maintenance person and he has assisted an electrician. He was employed in various capacities while incarcerated with some success.

[52] Mr. Eastman’s education and employment history demonstrate that he will have little in the way of skills or a routine to occupy and steady him in the community, if he were to be released.

Relationship History

[53] Mr. Eastman has been involved in a number of intimate relationships. He was involved with “Darlene” from 1983 to 1985. Together, they have a daughter who is 34 years of age. Mr. Eastman is uncertain as to why his relationship ended with Darlene.

[54] Mr. Eastman also had a relationship with “Anne”. They had a child together but broke up after ten years.

[55] Mr. Eastman had a fleeting relationship with “Debbie”. It resulted in the birth of a third child. Initially, Mr. Eastman did not see his daughter and denied his paternity.

[56] Mr. Eastman then became involved with “Patricia”. Together they have a 15-year-old daughter by the name of “Angel”. He advises that they continue to have a relationship although he last saw Patricia in 2013 and last spoke to her in 2016.

[57] Mr. Eastman also had a relationship with Ms. K.W. (described above). He advises that this relationship was transient and was based on their common interest in illegal substances.

[58] Again, this relationship history shows that Mr. Eastman has very little family support in the community.

Substance Abuse

[59] Mr. Eastman denies that he consumes alcohol excessively and says that he is not dependent on alcohol. His real difficulties arise from his addiction to illegal substances.

[60] Cocaine is Mr. Eastman’s primary choice of drug. He began using cocaine in 1983 or 1984 after separating from his first partner. A female friend offered cocaine to him. Mr. Eastman accepted. He eventually became “hooked”.

[61] Mr. Eastman has stated that his drug use continued unabated for most of his adult life. He says that he never tried to kick his drug habit “until now”. When asked by Dr. Pallandi to comment on the cause of his extensive criminal record he stated, “Drugs … most of it … the rest is being stupid … not making proper decisions.”

[62] Counsel for Mr. Eastman submits that, “A cogent strategy to control Mr. Eastman’s drug usage – a further penitentiary sentence limiting Mr. Eastman’s access to drugs with substance abuse counselling followed by regular urinalysis screening as part of a 10-year LTSO significantly reduces the risk that Mr. Eastman will consume drugs, and especially crack cocaine.” This, he says, is important because of the “link” between Mr. Eastman’s use of crack cocaine and his offending. He is partially correct in this submission.

[63] While I agree that drug treatment would be beneficial, I have concerns about Mr. Eastman’s ability to curb his drug use. Further, discontinuing the use of cocaine does not necessarily reduce the risk to our community. I agree with Dr. Pallandi’s findings with respect to Mr. Eastman’s substance abuse:

Mr. Eastman does appear to have engaged in a longstanding pattern of sexually aggressive and coercive behavior with or without the use of cocaine. He has been a multiple recidivist and has been served lengthy penitentiary periods for sexual misbehavior. He has been subject to intensive programming at the federal level and has had many opportunities for drug and sexual offending treatment over the course of many years.

Ostensibly, it appears that Mr. Eastman has not been able to either integrate the knowledge from his programming or has chosen not to apply it.

While one would like to remain optimistic about Mr. Eastman’s prospects about eventual control and containment of his risks in the community, at this juncture, based on the totality of the present assessment, I cannot reliably suggest there is cogent evidence to support a strategy that would reasonably be expected to contain his risk to a safe level.

Regardless, he should be subject to intensive levels of sexual offender and drug treatment, although I remain circumspect about its utility and the impact that it will have upon Mr. Eastman in the long-term.

[64] Even while on statutory release and despite previous programming, Mr. Eastman was unable to refrain from the use of cocaine. As Dr. Pallandi testified, “I think it’s kind of self-evident that [his offending conduct has] continued to be a problem despite treatment.”

[65] Any community management of Mr. Eastman’s risk would have to be heavily monitored. He would be required to live at a Community Correctional Centre and undergo urinalysis testing several times per week. Ms. Cathy Phillips of Correctional Services Canada testified that they simply do not have the resources for such monitoring. They are unable to provide supervision 24-hours a day and simply do not have the resources to conduct urinalysis tests several times per week. (Ms. Phillips testified that the best they can do is conduct a urinalysis test three times every three months.)

[66] Further, Dr. Pallandi agrees that cocaine is likely related to Mr. Eastman’s criminal conduct but resolving that issue may not end his criminal conduct, although it might reduce it. He agreed that cocaine can erode a person’s control of their impulses and impair their judgment. He was of the view that eliminating cocaine would not be dispositive of Mr. Eastman’s risk. This is particularly so because Mr. Eastman advised Dr. Pallandi that he was not intoxicated by cocaine when he committed the last sexual assault.

The Criminal Record

[67] Mr. Eastman has over 20 convictions on his criminal record commencing in 1984. This, in my view, show that he is unable to control his behaviour and continues to pose a risk to our community. Those entries are as follows:

Date

Offence

Sentence

May 5, 1984

Theft over $200.

Suspended sentence and probation for 1 year and restitution of $300.

November 4, 1988

Escape lawful custody.

Time served.

April 19, 1994

Possession of a narcotic.

1 day in addition to time served.

October 31, 1994

Uttering threats.

30 days in addition to time served.

July 11, 1995

Fail to comply with recognizance.

$250 fine in addition to time served of 47 days.

August 10, 1995

Assault cause bodily harm.

$500 fine and probation for 2 years.

April 28, 1997

Sexual assault cause body harm, assault with a weapon, uttering threats, theft over $5,000, attempt obstruct justice and possession of a weapon.

4 years on each charge concurrent and a weapons prohibition for life.

December 24, 1999

Statutory release.

March 15, 2000

Statutory release violator.

Recommitted.

November 20, 2000

Statutory release.

December 14, 2000

Statutory release violator.

Recommitted.

December 14, 2000

Communicate for the purpose of prostitution.

10 days’ imprisonment.

August 29, 2003

Spousal assault.

Suspended sentence in addition to 4 days in custody (time served), together with probation for 2 years.

June 25, 2004

Assault.

Suspended sentence in addition to 145 days in custody (time served), together with probation for 16 months.

August 22, 2005

Assault, fail to comply with probation.

28 days intermittent (concurrent) in addition to 16 days in custody, together with probation for 1 year.

October 20, 2006

Fail to comply with probation.

30 days in custody, together with probation for 12 months.

April 3, 2007

Sexual assault causing bodily harm.

28 months in custody in addition to 20 months of custody (time served), together with a s. 109 prohibition.

September 5, 2006

Fail to comply with recognizance.

90 days in custody.

October 21, 2008

Statutory release.

March 5, 2009

Statutory release violator.

Recommitted.

[68] I have already outlined the sexual offences in paragraphs 20-22 above. A summary of the facts giving rise to some of the other convictions is as follows:

1994: The factual basis for the conviction of possession of a narcotic is that Mr. Eastman approached the victim in a parking lot at 236 Sherbourne Street, wherein he removed $15 from the victim’s hand, putting the money into his own pocket. At the time of his arrest, he was in possession of 0.24 grams of cocaine and was convicted of possessing the narcotic.

1995: Mr. Eastman was convicted of assault causing bodily harm. Not much is known about the factual background of this offence but for the fact that the victim was an adult female.

1997: Mr. Eastman was convicted of sexual assault causing bodily harm, weapons dangerous, assault with a weapon, uttering threats, theft over $1,000 and attempt to obstruct justice. The facts giving rise to these convictions are referred to in para. 22, above.

2000: After being statutorily released, Mr. Eastman violated his release within one month by soliciting an undercover police officer for prostitution. Results from a urinalysis tested positive for cocaine in January 2000. He admitted to using crack and was recommitted. Mr. Eastman also tested positive for THC Carbolxylic Acid on November 22, 2000 while at the Keele Community Correctional Centre. He was recommitted.

2003: Mr. Eastman pleaded guilty to assaulting his then-common law partner, Ms. Patricia Gabow. They had a verbal argument that escalated to Mr. Eastman slapping Ms. Gabow with an open hand on the left side of her face. Ms. Gabow suffered minor redness and swelling to the left side of her ear. During sentencing, Mr. Eastman, through his representative, appears to have acknowledged his cocaine addiction.

2004: The facts giving rise to Mr. Eastman’s assault conviction are that he had entered a Mini Mart convenience store with his hat pulled over his head and concealing his face. He knocked down a stack of newspapers before proceeding to the counter. At that time, he punched the female victim in the chest, causing her to fall backwards. The victim’s husband was on scene and came to his wife’s assistance. Mr. Eastman fought with the victim and her husband, who were assisted by customers in the store. The group collectively managed to hold Mr. Eastman until police arrived.

2005: Mr. Eastman was convicted of assault and failing to comply with his probation. Mr. Eastman had become involved in a verbal argument with Mr. Fernando Sousa Medeiros in Mississauga. The argument was over money. Mr. Eastman kicked Mr. Medeiros on the right side of his face when Mr. Medeiros tried to avoid further confrontation with Mr. Eastman. Mr. Medeiros suffered swelling and bruising to his face and nose. Mr. Eastman breached a condition of his probation order that he “keep the peace and be of good behaviour” by assaulting Mr. Medeiros.

2006: The facts giving rise to Mr. Eastman’s conviction for failing to comply with his recognizance are that he had been charged with two Criminal Code offences arising from an incident that occurred in December 2005. He was granted bail the next day. It prohibited him from attending at the addresses of 1750 and 1850 Bloor Street East, Mississauga. On May 17, 2006, Mr. Eastman reported his address to the Ontario Sex Offender Registry as having been 514-1750 Bloor Street East since April 2003. Mr. Eastman was therefore in breach of his December 16th recognizance by residing at the Bloor Street address.

2006: In 2006 as well, Mr. Eastman was convicted of failing to comply with his probation as the result of an incident between himself and Mr. Medeiros (the prior victim of Mr. Eastman’s assault referred to above).

2007: Mr. Eastman was convicted of sexual assault causing bodily harm. The victim was Ms. K.W. and is referred to in para. 21 above.

2008: After his statutory release, Mr. Eastman was found to have violated the terms of his release when his urinalysis test returned positive for cocaine.

2018: Mr. Eastman was convicted of the offences before me, including sexual assault causing bodily harm on Ms. J.L.. The factual circumstances of those convictions are referred to in para. 20 above.

[69] Obviously, there is a pattern of assaultive behaviour demonstrated by the convictions described above. There are a significant number of entries but there is also diversity in the offending.

[70] There does appear to be a gap in Mr. Eastman’s criminal convictions from 2008, which is demonstrative of positive advances. As Dr. Pallandi explained when testifying, a gap between offences is “probably a good thing”. It speaks to the issue of self-control or an offender’s ability to manage and avail themselves of the professional resources available. The flip side is that when that gap comes to an end, there is an indication that whatever strategies Mr. Eastman had been using were imperfect and they failed. Mr. Eastman had advised Dr. Pallandi that during this gap, he had continued to use cocaine “all the way along”.

[71] Counsel for Mr. Eastman also suggests that the sentence he proposes will take Mr. Eastman to the age of 70 and the likelihood of him committing a violent assault will have tapered off. As Dr. Pallandi said in his testimony, “there are fewer rapists or very few, almost none, when you get into, let’s say, 70-year-old men, it’s almost unheard of to see somebody raping anybody at that age”. That said, Dr. Pallandi makes the observation that Mr. Eastman offended “relatively late in life and quite significantly so too”. Dr. Pallandi found it “concerning” that Mr. Eastman was “conducting himself in the fashion that he did to lead to the predicate offences”.

[72] As such, it appears that Mr. Eastman’s risk to the community has not been curtailed by the various sentences he has received in the past. His record also demonstrates a disregard for court orders and other supervision.

Impact of the Offending Behaviour

[73] The complainant in the matter before me did not provide a victim impact statement. However, as I note from my Reasons for Judgment,[^19] I can infer that Ms. J.L. suffered much distress arising from this incident:

a. Ms. J.L. escaped the apartment, bumping into the owner and an employee of the bar downstairs from Mr. Eastman’s apartment shortly after she did. The bar owner described that she was wearing only one shoe. She was crying and could not really talk. The left side of her face was bruised in the eye area. When asked why he called the police, he said: “I have a daughter myself. When you see somebody in that shape, it is not right.”

b. The employee of the bar saw Ms. J.L. and concluded she was in distress. He saw bruises on the complainant’s face and shoulders. To him, it was obvious that she had been beaten and that she had “just got out of there” because she was only wearing one shoe. He called the police because he felt he had a moral obligation to do so.

c. The paramedics who transported the complainant to the hospital described that she was suffering from “hematomal orbital” (i.e., bruising to the eye) and “swelling to nose, left side face”.

[74] I can infer, from the facts at trial, that Ms. J.L. suffered tremendously as a result of Mr. Eastman’s vicious assault. I have also reviewed the Victim Impact Statements provided by the victims of Mr. Eastman’s prior assaults. They may be summarized as follows:

Ms. G.R.: Ms. G.R. was the victim of the first sexual assault that gave rise to the convictions in 1997 before Humphrey J. She said, amongst other things, that Mr. Eastman damaged her both physically and mentally. She was medicated for her injuries and sought counseling for her mental health. She felt “unworthy” and lost her self-confidence. She had recurring nightmares and asked that there be closure to the incident “so that no one else has to suffer the pain that I deal with daily and give Melvin Eastman what he deserves”.

Ms. K.W.: Ms. K.W. was the victim of the second sexual assault that gave rise to the convictions in 2007 before Durno J. She describes that she had a difficult time trusting men. She, too, had nightmares, awaking to the belief that Mr. Eastman was standing over her. She felt “uncomfortable and dirty”. She reports that the doctor found that she had a lot of scar tissue inside her uterus “likely the result of rape which caused me to bleed for two days following the procedure” (completing the rape kit). “Inside”, Ms. K.W. describes herself as “broken and confused”. She was required to take anti-depressants and attend for counseling. She relocated several times because she felt unsafe. This hindered her chance of reestablishing a relationship with her family.

[75] Obviously, Mr. Eastman’s conduct has had a significant impact on his victims. That impact, however, appears to be lost on Mr. Eastman. I come to this conclusion despite his apology at this proceeding.

Lack of Empathy

[76] In the past, Mr. Eastman has shown little remorse for the victims of his offences. He has suggested that drugs overtook him during the offences. On some occasions, he has denied he committed the offences and provided excuses for his behaviour. Some of those observations may be summarized as follows:

a. May 29, 1997: During his first period of incarceration at Millhaven, and in reviewing his criminal history, it is recorded that Mr. Eastman:

… denied that he committed any of the abovementioned offences. Instead, he used excuses for his behaviour, and a number of rationalizations to deflect blame onto others (society, the police, accomplices, victims and the system). Interestingly, when challenged with the truth, he seldom appeared perplexed or embarrassed; he simply reworked the facts or changed his stories to make them appear consistent with what he was asserting.

Mr. Eastman minimized his role suggesting that the victim was partly to blame because she “angered him” on the night in question. Further, he accused the victim and the police of embellishing the facts to make him appear more “ruthless”. As such, he felt unfairly treated. He also minimized the degree of force used during the assault and failed to appreciate the harm that he caused his victim.

b. 1998: During his participation at the Bath Institution sex offender program in 1998, it was concluded that Mr. Eastman disrespected two of the women with whom he socialized. He justified his disrespect by focusing on their profession (prostitutes) and their drug use (cocaine). He saw them as inferior which “made it easier to use them”. He chose his most recent victim because “she seemed to be the most vulnerable”. She was dependent on him and longing for a companion. Mr. Eastman expressed that because of her vulnerabilities, “she would be least likely to turn him in to the authorities”. He tried to convince her not to testify.

c. April 12, 2007: In a preliminary assessment report at Millhaven, Mr. Eastman said the following after his second conviction for sex related offences, that the conviction was fair and that “you make your bed and you have to lay in it”. That said, he believes that sex with Ms. K.W. was consensual and that he acted in self defence when assaulting her.

[77] It is obvious from a review of Mr. Eastman’s history that he preys on vulnerable victims. Dr. Pallandi found that Mr. Eastman’s choice of victim “speaks to the kind of anti-social lens through which he sees his offending, sort of applying some kind of discount to certain human beings because of their chosen profession or activities … it certainly strikes of a lack of empathy and sort of a callousness to the way you discount human beings based on your own attitudes or your views”.

[78] Put simply, Mr. Eastman lacks insight and minimizes the impact of his vicious assaults. I have come to this conclusion despite his letter to the court dated September 18, 2019 acknowledging the pain that he has caused his victims.[^20] A review of his history supports this conclusion.

Institutional Records

[79] Mr. Eastman has been incarcerated federally on two occasions and incarcerated provincially on several occasions. Pre-sentence reports as well as various other institutional records have been provided to the Court. The records demonstrate that Mr. Eastman is a substantial risk to reoffend and cannot be managed in the community.

[80] As Dr. Pallandi testified, “past behaviour is a good predictor of future behaviour”. Mr. Eastman’s history, as outlined in the records and which I have summarized in Appendix “A”, indicates that Mr. Eastman’s past behaviour is a consideration that leads to the conclusion that the safety of the public can only be attained if Mr. Eastman is detained indeterminately.

[81] The records demonstrate a criminal history that commenced in 1984. Mr. Eastman started by committing theft offences and by the 1990s he was committing drug offences. Eventually, his offending cycle showed a disregard for court orders as Mr. Eastman was unable to comply with them. The criminal record shows a history of assaults, commencing with a domestic assault. It escalated to a sexual assault, together with a conviction for uttering threats, possession of a weapon and assault with a weapon in 1997. (While on release for these offences, Mr. Eastman threatened the victim, attempting to dissuade her from testifying against him.) That was Mr. Eastman’s first visit to the penitentiary.

[82] During his first period of incarceration federally (in 2000), Mr. Eastman enrolled in many programs including cognitive skills, OSAPP (a sex offender program), health and nutrition, anger and emotions. He was also enrolled in the Bath Sex Offender Program. Despite such programming he continued to minimize the sexual assault by “highlighting his drug use and downplaying the severity of his actions”.[^21] In an interview with Dr. Wilson, Mr. Eastman stated that he was “finished” with offending but offended within hours of making that statement by communicating for the purpose of prostitution. Dr. Wilson found this “alarming”. As such, Dr. Wilson concluded that Mr. Eastman presented an overall risk to the community in the medium-high range. He was right.

[83] Prior to his second conviction for sexual assault in 2007, Mr. Eastman breached his probation. In addition, he violated his statutory release on two other occasions. One of those violations involved a re-offence, described above: communication for the purpose of prostitution. Mr. Eastman also committed a domestic assault in 2003 and further assaults in 2004 and 2005.

[84] At the commencement of his second stay in the penitentiary for sexual offences, Mr. Eastman was classified as a high risk for sexual re-offending. However, following his participation in programming, his risk was adjusted to moderate/high. At that time, Mr. Eastman was cautioned that should he “return to a lifestyle that includes drug use and prostitutes, or fail to manage your anger and aggression, your risk level would significantly increase”. They were right. He committed his third violent sexual assault less than 10 years later and in 2016.

[85] While Mr. Eastman is to be commended for participating in various programs and while I appreciate that there is high level intensity programming of which Mr. Eastman has yet to participate, it is obvious that he has not internalized what he has been taught. The public remains at risk. I come to this conclusion despite the gap in his record of criminal convictions and his age. This conclusion is supported by the evidence of Dr. Pallandi.

Recent Psychiatric History

[86] Dr. Pallandi conducted a thorough review of Mr. Eastman’s history in 2018, including his criminality, family, etc. It was a psychiatric assessment undertaken pursuant to s. 752.1 of the Criminal Code. Dr. Pallandi provided a diagnosis as follows at page 15 of his report:

Aside from his self-report of depression, Mr. Eastman does not appear to suffer from any mental disorder nor is this suggested in any of the file material. As such, I would be reticent to make any diagnosis of any formal psychiatric disorder.

He does appear to have a longstanding proclivity to coercive sexual interactions with females, employing physical aggression, weapons, intimidation and forcible confinement, both with and without the ingestion of substances.

He does appear to have a longstanding problem with the abuse of cocaine, despite extensive opportunities for treatment over many years.

Considering whether or not he suffers from Antisocial Personality Disorder, it is self-evident that he has engaged in a modest quantity of antisocial behaviour which at times has been of a severe nature, given the absence of Conduct Disorder indicators and that a portion of his conduct is drug-related, I would equivocate about making a formal diagnosis.

[87] During his evidence in Court, Dr. Pallandi agreed that Mr. Eastman suffers from cocaine abuse disorder, although this is not mentioned in his report.

Risk Assessment

[88] Dr. Pallandi provided a risk assessment and concluded that Mr. Eastman’s risk is high for similar conduct in the future. His findings may be summarized as follows.

Actuarial Assessment of Risk

[89] Mr. Eastman’s score on the Psychopathy Checklist – Revised (“PCL-R”) was 13 out of a possible 40 points. This score falls below the threshold of making a formal diagnosis of psychopathy and is modestly elevated. This places him at the 11th percentile compared to male prison inmates.

[90] With respect to the PCL-R, Dr. Pallandi provided the following discussion regarding Mr. Eastman:

It is interesting to note that Mr. Eastman’s PCL-R is not substantially elevated despite his long-term engagement with the justice system. While he has several items that are prototypical of psychopathy, these are circumscribed and relate to his supervision difficulties and his attitudes and beliefs in relation to his victims.

[91] Dr. Pallandi used the Static 99-R which was designed and developed largely in Canada for the assessment of sexual recidivism amongst child molesters and rapists. Dr. Pallandi assigned a score of 6 (out of a possible 12 points) to Mr. Eastman. This places him in the “moderate high” nominal range of recidivism and is associated in the development sample with risk of recidivism of 43, 43 and 52 percent over 5, 10 and 15 years of opportunity.

[92] Dr. Pallandi found the following regarding the Static 99-R:

I note that his Static 99-R score remains significantly elevated despite his now relatively advancing age and opportunity for treatment. This is not surprising given the specificity of this instrument (and relevance to Mr. Eastman) and the persistence of his sexual offending.

[93] Dr. Pallandi also employed the HCR – 20. He concluded that Mr. Eastman’s total score of 21 is moderately high in total and is accounted for by scores of 10 (Historical factors); 6 (Clinical factors) and 5 (Risk Management factors).

[94] Dr. Pallandi concluded the following regarding Mr. Eastman’s score on the HCR-20, “His HCR-20 score is understandable, with elevated historical factors coupled with specific deficits in his responsivity to treatment.”

Clinical/Case Specific Factors

[95] Dr. Pallandi made the following comments with respect to the clinical factors and case specific factors regarding Mr. Eastman’s risk:

Somewhat anomalously, Mr. Eastman, despite his age, has continued to engage in violent sexual offending, past the age which one typically might expect. While cocaine, by Mr. Eastman’s account, is responsible for a good deal, if not all, of his behaviors, I would not necessarily agree with this assertion. He has engaged in sexually assaultive behavior with or without the influence of cocaine.

As noted above, it is troubling that Mr. Eastman continues to offend at the age that he does, and the fashion that he has, all despite receiving virtually the highest intensity of treatment that is available within the correctional system. Not only has he recidivated but he has recidivated in a very problematic, intrusive and aggressive fashion. It is quite clear that despite treatment, Mr. Eastman has continued to engage in a pattern of persistent sexually intrusive and assaultive behavior against adult females over many years.

Taking all these factors into account, despite his age and efforts at treatment, I would opine that Mr. Eastman’s risk for similar such conduct in the future remains at a high range.

[96] Based upon the abovementioned findings of Dr. Pallandi, Mr. Eastman’s risk of committing a serious personal injury offence is high. I agree with his assessment.

The Deterrent Effect of an LTSO

[97] Counsel for Mr. Eastman submits that the imposition of an LTSO and the consequences of breaching such an order will deter Mr. Eastman from committing further offences. For example, a breach of an LTSO is an indictable offence carrying a maximum term of imprisonment of 10 years. Further, a parole officer has the authority to suspend an offender’s release for three reasons: a breach of condition, prevention of a breach or, for the protection of society. Once the LTSO is suspended, the offender is taken into custody and held for up to 90 days. The matter can be referred to the Parole Board, whose members have a number of options.[^22]

[98] Further, should an offender commit new offences during the LTSO period, either substantive or breach offences, any jail sentence imposed would be served in the penitentiary. The LTSO would be interrupted and continue only after the completion of their sentence. Lastly, any further reoffending by a person found to be a Dangerous Offender can lead to further Dangerous Offender proceedings or a new order for long-term supervision if convicted of a serious personal injury offence or even a breach of their LTSO. While I agree that an LTSO can have a deterrent effect for some offenders, I am concerned that it would not have such an effect with Mr. Eastman.

[99] Mr. Eastman has a history of non-compliance which demonstrates a disregard for the administration of justice. He has convictions for failing to comply with four court orders. He violated his statutory releases on several occasions:

January 12, 2000: Mr. Eastman received his first statutory release on December 24, 1999. Three weeks later, he violated his statutory release for a curfew breach and cocaine use. A statutory release warrant of apprehension and suspension was issued and executed on January 12, 2000.

November 20, 2000: Mr. Eastman received his second statutory release. He violated his statutory release less than one month later by trying to solicit an undercover police officer for prostitution. He also tested positive for TCH Carboxylic Acid on November 22, 2000. A statutory release warrant of apprehension and suspension was issued and executed on December 8, 2000.

March 12, 2001: Mr. Eastman received a statutory release. He violated it by using cocaine. A statutory warrant of apprehension and suspension was issued on March 16, 2001 and executed on March 19, 2001.

April 4, 2001: Mr. Eastman admitted that he had smoked a joint two days earlier. His statutory release was revoked. He served out his custodial sentence through to the Warrant Expiry Date of April 27, 2001.

October 21, 2008: Mr. Eastman received statutory release following his second conviction for sex assault related convictions. On December 12, 2008, Mr. Eastman failed a urinalysis test (positive for cocaine). A statutory release warrant of apprehension and suspension was issued and executed.

[100] It appears that even a penitentiary sentence did not prevent Mr. Eastman from committing further offences upon his release. He has been convicted of several offences of failing to comply with court orders and violations of the terms of his statutory release. I am not confident that an LTSO and the consequences of failing to comply with it would act as a deterrent for Mr. Eastman.

The Proposed Plan of Supervision

[101] Counsel for Mr. Eastman submits that a further sentence of 3.5 years, together with an LTSO of 10 years is the appropriate disposition. I disagree. A review of Mr. Eastman’s history as provided in this record demonstrates that that is not the appropriate sentence.

[102] It has been suggested by Counsel for Mr. Eastman, that Mr. Eastman is well on his way to being drug free because he has not been using drugs while incarcerated. While Mr. Eastman is to be commended for this, his remission is in a controlled environment. The problem arises when he is in a free environment where he has ready access to substances with no oversight. This is particularly concerning because Mr. Eastman has been subject to counseling in the past but has returned to drug use time after time. His drug use has continued unabated, despite treatment and the imposition of court orders.

[103] Mr. Eastman has shown that he is not able to be managed in the community. He has breached court orders and the terms of his statutory release. As Dr. Pallandi states: “it’s an indicator of the fragility of the grip a person has on their substance use problems even when they’re being supervised”.

[104] Even if Mr. Eastman did stop using cocaine, Dr. Pallandi remains concerned about his risk to our community. Dr. Pallandi explained:

… I think this is an issue of – functionality, it’s like two parallel lines, you’ve got the cocaine problem, in this case, or a drug use problem, and there are other kinds of anti-social conduct and sexual misconduct. Are the two – do they cross over? Yes, they probably do, to a degree. But, I think you’ll be simplistic, overly simplistic, and in fact – I think quite incorrect to say that if you would correct the cocaine problem everything else would be fine. I think that’s not the case.

Whether it was a large or small amount is not as consequential. But, while you’re subject to correctional service supervision or provincial supervision, where it’s quite explicit what the expectations are, the concern of course is that a person using in the face of those orders in active orders of being in place, that’s probably the more significant interpretation about it.

[105] While I appreciate that Mr. Eastman is amenable to treatment and has yet to participate in a High Intensity Sex Offender Program for high risk sex offenders (that was not available during his last penitentiary sentence), it would be speculative to conclude that Mr. Eastman would benefit from such a program. He has been to the penitentiary twice and it appears that he has not been able to internalize what he was taught during the programming then.

[106] Dr. Pallandi concluded:

I have to be able to provide, as a clinician, positive cogent evidence that a realistic plan can be put in place, and that that plan is going to mitigate risk. And that’s what I have, that’s what I can’t do today. I can’t provide you or the court evidence to say, yes I truly in my clinical opinion think that if you do A, B, and C, we’re going to have substantial reduction in risk, that’s what I cannot say.

[107] Dr. Pallandi concluded that Mr. Eastman’s risk for similar conduct in the future remains in the “high” range. Outside of the Correctional Service of Canada, Dr. Pallandi could not think of any place in the community that would or could appropriately address the concerns raised by Mr. Eastman. I agree.

ii. Is an indeterminate sentence appropriate?

[108] I am not satisfied that there is a reasonable expectation that a lesser sentence (i.e., a determinate sentence followed by a LTSO) will adequately protect the public against the commission of a serious personal injury offence by Mr. Eastman.

[109] For these reasons, I designate Mr. Eastman a Dangerous Offender and I sentence him to indeterminate detention.

Kelly J.

Released: October 17, 2019

Appendix “A”

Sentencing Reasons in R. v. Eastman

The following is a summary of the documents provided by Crown Counsel in support of their Dangerous Offender Application.

1. March 6, 1997: A presentence report filed before the court after Mr. Eastman’s first conviction for a sexual offence states that Mr. Eastman admits to using cocaine for 18 months, ending in 1995. He had attended both NA and AA for such an addiction. Sources contacted for the report indicated that they were not aware of any “present” drug use.

2. May 29, 1997: The Intake Assessment at the Millhaven Institution following his first sexual assault conviction suggested, amongst other things, that:

i. Mr. Eastman denied or minimized most of his criminal acts. He accused his victim of embellishing the facts to make him appear more ruthless and police of unfair treatment.

ii. Police believe that Mr. Eastman has a “great propensity” for violence and for the abuse of women.

iii. Mr. Eastman is a moderate risk for violent recidivism.

iv. He required treatment in a moderate sex offender treatment program.

v. Mr. Eastman appeared willing to participate in his correctional plan. That said, he continued to minimize or deny life’s shortcomings in an attempt to present in a more favourable light.

vi. He had been living a “drug free” lifestyle since 1995. He denied that he presently had a drug and alcohol problem.

3. 1997: Mr. Eastman participated in the Millhaven Sex Offender Program. That is a cognitive-behaviourally based, open ended, low/moderate intensity program. It was noted that:

i. Mr. Eastman fully participated in the sessions. He had a good rapport in the program. However, the author reported that “he has gained little insight into his offending”. He continued to minimize his responsibility suggesting the victim was partly to blame because she angered him. He denied that he used violence to force her to have sexual intercourse with him. He suggested that he assaulted her during a “heated argument” and then believed they engaged in consensual sex. “When confronted or challenged regarding these beliefs, Melvin Eastman modified, but later reverted to earlier patterns of thinking, leaving the impression that he was simply placating therapists. He generally failed to appreciate the harm he caused his victim.” It was observed that Mr. Eastman’s patterns of thinking “remain unchanged”. It was suggested he participate in further treatment at the moderate intensity level “if he is to manage his sexual behaviour upon release from custody”.

ii. Millhaven staff believed that Mr. Eastman’s sexual behaviour and associated issues (his negative attitudes toward women and a propensity for violence towards women) could be addressed through additional treatment at Bath Institution’s sex offender treatment program.

iii. The Behavioural Science Analyst (Mr. Bruce Malcolm) concluded that Mr. Eastman presents as a “moderate risk for general, violent and sexual recidivism”.

4. June 27, 1997: Mr. Eastman received a Certificate of Achievement for Alcoholics Anonymous from the Millhaven Assessment Unit.

5. November 8, 1997: A letter from Toronto Renovations and Additions indicated that Mr. Eastman had worked for the company. They found is “workmanship and punctuality completely satisfactory”.

6. December 19, 1997: Mr. Eastman received a Certificate of Attendance for the Griefshare Program.

7. January 16, 1998: In his application for parole, Mr. Eastman stated as follows: “I feel that I deserve a chance for parole because I have complied with my programs to the fullest of my capability and have had good attendance. I participated and worked with the instructors and also followed orders”.

8. February 2, 1998: Mr. Eastman participated in the Bath Institution Sex Offenders’ Treatment Program in October 1997. He completed all treatment requirements. The report provided that:

i. Mr. Eastman now admitted that he sexually assaulted his victim and beat her. He continued to deny that he used a knife. He was quick to portray the victim in a negative manner. He showed no respect for her and “did not even appear to view her as an individual with thoughts and feelings of her own”.

ii. Mr. Eastman’s attempt at a letter to the victim (an exercise in the program, not to be sent) was “insulting” to the victim. He wrote a second letter, but the author of the report feels that it was not genuine. It was an attempt to tell the author what they wanted to hear.

iii. Mr. Eastman disrespected two of the women with whom he socialized. He justified his disrespect by focusing on their profession (prostitutes) and their drug use (cocaine). He saw them as inferior which “made it easier to use them”. He chose his most recent victim because “she seemed to be the most vulnerable”. She was dependent on him and longing for a companion. Mr. Eastman expressed that because of her vulnerabilities, “she would be least likely to turn him in to the authorities”. He tried to convince her not to testify.

iv. Mr. Eastman realizes that a “lifestyle change is in order” if he wants to avoid committing further violent and sexual offences. He advised that he “plans to break contact with former associates who are involved in taking or selling drugs, or who are involved in prostitution. He also plans to remain out of areas known for criminal activity.”

v. It was estimated Mr. Eastman’s risk of committing another sexual offense to be “low-moderate” provided he follows his relapse prevention plan.

9. March 16, 1998: Mr. Eastman set out his plan for relapse prevention:

i. “To look at woman for what they are, and not for what they aren’t”.

ii. “Avoid idle time by volunteering my time to training, church and helpful programs to the community. This will help me to stay away from drugs.”

iii. “By keeping away from areas that are drug infested and unstable people”.

iv. “By keeping busy with my children and family”.

v. “Changing my occupation from the entertainment industry so that I don’t fall back into old habits”.

vi. “If I get involved into a serious relationship be honest about my past”.

vii. “Have respect for the person I’m with staying with only one partner” [sic].

viii. “Being more understanding towards other peoples [sic] needs”.

ix. “Changing my choice of friends and where I go and what I chose [sic] to do with my time”.

x. “Take any programs that are recommended to me by my parole officer till they are completed”.

xi. “Use my qualities and personality in a more positive manor to accomplish my goals in life”.

10. April 8, 1998: Mr. Eastman completed a Cognitive Skills Training Program which targets self-control, social perspective taking, interpersonal problem solving, decision making and critical reasoning. The author of a report stated that Mr. Eastman “seems willing to participate in his correctional plan; however, he continues to minimize/deny life’s shortcomings in an attempt to present in a more favourable light”. He had issues with impulsivity and rigidity. Areas of concern were that he used his social skills in a manipulative manner. He denied that he had a drug problem at this point. That said, he was an active participant in the program and attended all 36 sessions. He completed the course successfully, although a booster program was recommended to improve several deficit areas.

11. April 24, 1998: Mr. Eastman completed a Substance Abuse Program at the Bath Institution. The author of the report stated that he had a relapse prevention plan that was realistic (i.e., attending NA meetings, getting counseling, talking to a support group and disassociation with users). Further, the author stated that it was his opinion that Mr. Eastman had increased his understanding and knowledge of the harmful effects of drug use.

12. April 30, 1998: Mr. Eastman received a Certificate of Completion from the Substance Abuse Treatment Program.

13. May 25, 1998: Mr. Eastman received a Certificate of Completion from the Alternatives to Violence Project, Basic Level.

14. June 17, 1998: Mr. Eastman completed anger management counseling at the Bath Institution. The author reported: “Overall, Mr. Eastman is very verbally skilled and clearly trying to advance his case for a successful day or full parole application. It would be easy to dismiss these efforts as insincere or manipulative. However, it is my clinical impression that Mr. Eastman is motivated to undertake substantive life style change and his effort and response to individual and some group feedback are positive signs of that direction.” Mr. Eastman was not recommended for further anger management programs.

15. August 13, 1998: Mr. Eastman completed the Anger and Emotion Management Program at Bath Institution. The author reported that Mr. Eastman has “increased his awareness and knowledge of ways to control anger and aggression”. No further programs were suggested apart from full compliance with is Correctional Plan.

16. October 4, 1998: Mr. Eastman received a Certificate of Completion from the Alternatives to Violence Project, Second Level.

17. November 18, 1998: Mr. Eastman received a Certificate of Achievement for grade 10, health education.

18. December 9, 1998: A letter from the Acheron College indicates that Mr. Eastman “has expressed a sincere desire to upgrade his automotive skills”. His dealings with the school and other offenders was described positively.

19. March 23, 1999: Mr. Eastman was involved in Sexual Therapy Maintenance in the Bath Institution. Amongst other things, the author reports that Mr. Eastman’s “insight into his behaviour remains good and he recognizes that the lifestyle he was leading, and his attitudes toward women at the time of his offence were inappropriate”. He has agreed to attend at a sexual offender therapist.

20. March 29, 1999: Dr. W.L. Marshall, Ph.D., C. Psych., the Director of the Bath Institution Sexual Offenders’ Program found that cause for concern for re-offence was his lifestyle and the resources available for him to alter his lifestyle.

21. May 2, 1999: Mr. Eastman successfully completed the Introduction to Keyboarding Course at the Bath Institution.

22. May 14, 1999: Mr. Eastman received a Certificate of Achievement for grade 10, keyboarding.

23. June 21, 1999: Mr. Eastman participated in the 1999 Pre-Release Fair at the Bath Institution. The organizer, Ms. Jane Tassielli recognized the “hard work, people skills and great attitude” shown by the participants (including Mr. Eastman).

24. September 16, 1999: Mr. Eastman was suspended from the garage at the Bath Institution because he was not at work as required. His pay was downgraded.

25. November 13, 1999: Mr. Eastman was suspended from his kitchen employment at the Bath Institution for leaving his program without authorization. His pay was downgraded.

26. April 5, 2000: Mr. Eastman was suspended from working as a cleaner at the Bath Institution because of an argumentative attitude towards unit staff. His pay was downgraded.

27. April 10, 2000: Mr. Eastman’s pay was downgraded due to a recent employment suspension. He was suspended as a Unit one cleaner because of an argumentative attitude towards unit staff.

28. June 2, 2000: Mr. Eastman completed the Substance Abuse Maintenance Program. He identified his coping strategies as: “to stay away from people and places that are risky, keep active in his personal life by finding a hobby, doing programs, and spending time with family and friends”. The author concluded that “his plan shows a good balance of thinking and acting strategies”.

29. December 12, 2000: Dr. Robin Wilson, C.Psyc., A/Chief Psychologist & Director of Correctional Service Canada observed that Mr. Eastman lacks “dedication to remaining offence-free”. Mr. Eastman had told Dr. Wilson that he was finished with offending but within a short period of time he was soliciting for sexual services. Dr. Wilson concluded: “That he quickly returned to frequenting prostitutes is alarming, given that this is a major component of his offense cycle. Given this, and the risk assessment information above, Mr. Eastman should be seen as presenting an overall risk to the community in the medium-high range”. Dr. Wilson made the following recommendations:

30. Mr. Eastman should be referred to the structured sex offender treatment program at the Centre for Addiction and Mental Health – Clarke Division. Focus should be on development of a workable relapse prevention plan and the development of enhanced victim understanding and empathy.

31. Strict monitoring is recommended regarding Mr. Eastman’s adherence to his conditions of release, particularly with respect to abstinence from intoxicants and avoidance of certain persons (especially prostitutes). Regarding the former, Mr. Eastman may need to explore his ambivalence in identifying as a drug user. As to the latter, Mr. Eastman is clearly having difficulty avoiding nefarious sexual activities.

32. March 31, 2001: Mr. Eastman tested positive for cocaine while at the Keele Correctional Centre.

33. July 9, 2004: Mr. Eastman reported to his probation officer that he was staying at the Maxwell Meighen Centre in a 28-day in-patient program. He advised that he was “not happy with it”, noting the area in which it is located as well as the amount of freedom it provides.

34. July 12, 2004: Mr. Eastman’s probation officer received a message from Turning Point that Mr. Eastman was discharged for missing his curfew.

35. July 23, 2004: Mr. Eastman’s probation officer recorded that Mr. Eastman left the Maxwell Meighan Centre where he was receiving drug counseling after a few days. The reason provided was that he was not allowed to seek employment or stay overnight at his residence. Mr. Eastman advised that he was not of the opinion that there is a need for counseling but that he is willing to attend as required.

36. April 1, 2005: Mr. Eastman was required to provide proof of his various counseling programs as required by probation. He provided seven certificates relating to programs he completed 7 years earlier in 1998.

37. July 14, 2005: A Protection Investigation by the Peel Children’s Aid Society was completed. The allegations included that Mr. Eastman was abusing his children. It concluded that the children under the care of Mr. Eastman and his partner were not at risk of imminent harm. However, Mr. Eastman acknowledged that he smokes crack cocaine on a weekly basis. Mr. Eastman denied using drugs in the home and that he had been under the influence of narcotics in the presence of his children. The report provides as follows:

Mr. Eastman acknowledged that he has an addiction problem with crack cocaine. He indicated that approximately 4 years ago, he had been spending $1,000.00 per week on his addiction. He then explained that since his incarceration, he has a willingness to address his addiction problem. He acknowledged that he will smoke approximately $50.00 per week on crack cocaine depending on the availability of money. Mr. Eastman indicated that he had never brought drugs into the home, nor has he ever been under the influence of drugs in the family home. Mr. Eastman indicated that he had attended a rehabilitation program, however did not complete it. Mr. Eastman is able to talk about his addiction problem. However, when probing him about treatment, he becomes closed off, and defensive. He was not willing to have consent forms signed to speak to the rehabilitation program, nor was he receptive to information regarding other addiction services. Again, this worker confirmed that he is not to be conducting child care duties while under the influence of drugs.

36. August 17, 2006: Mr. Eastman pleaded guilty to physically assaulting another inmate “resulting in serious injuries requiring hospitalization”.

37. February 3, 2007: While at the Maplehurst Institution, an officer found 2 yellow pills and bits of an orange pill secreted in the cap of a tube of Vaseline. Also found were a pair of glasses with one arm missing. Mr. Eastman pleaded guilty to the misconduct, but nursing staff confirmed that the medication was prescribed.

38. April 11, 2007: Mr. Eastman was assessed at Millhaven following his second conviction for sexual offences. That assessment indicates that Mr. Eastman agreed that he is addicted to crack cocaine and wishes to participate in all programs and in particular, for cocaine addiction. He advised that he had never been to UAL.

39. April 27, 2007: The overall assessment at Millhaven provided the following:

EASTMAN’S past behaviour reflects a complete disregard for his imposed conditions. He has completed numerous programs including cognitive skills, anger management, anger and emotions, sex offender (moderate) and OSAP but does not appear to use the skills learned in order to better himself in the community. He continues to use drugs, associate with other drug users and engage in violent behaviour. The subject informs that he has no community support. Given his past and present circumstances, it is this writer’s opinion that EASTMAN’s reintegration potential is low.

40. May 3, 2007: An Assessment of Substance Abuse was completed. Mr. Eastman stated, amongst other things, that his drug use did not cause him any problems. He denied that he was under the influence of drugs when he committed the sexual assault giving rise to his conviction in 2007. He advised that he does not believe that he has a drug problem and that drugs have had no effect on his life. He does not worry about his drug use. He also admitted that he used drugs while incarcerated in the detention centre. Mr. Eastman was recommended for the low intensity substance abuse program.

41. May 17, 2007: Phallometric testing was completed on Mr. Eastman. He was administered the “Female Sexual Violence Profile”. Analysis of the criteria indicated that Mr. Eastman’s responses met the criteria for deviant sexual interests “as the subject’s mean arousal to deviant sexual stimuli (rape scenes) was equivalent to 30% full erection”.

42. June 11, 2007: A Specialized Sexual Offender Assessment was completed. Mr. Eastman was assessed as a moderate to high risk for future sexual recidivism and requires a moderate intensity sex offender treatment program. His “prognosis for change” was described as “dismal”. The author reported that Mr. Eastman did not appear ready to change his behaviour. His level of risk was assessed as moderate. He scored “medium high” on the Static-99 which is designed to assist in the prediction of sexual and violent recidivism for sexual offenders. The rate for any violent recidivism, including sexual was 42% over five years and 48% over ten years.

43. June 15, 2007: An Inmate Offence Report notes that Mr. Eastman refused a direct order to re-enter his cell.

44. June 19, 2007: The Correctional Plan states: “Despite having completed numerous programmes on a prior federal sentence Eastman is once again serving a federal sentence for sexual assault, which suggests that programming had little effect on his behaviour. He states that he is amenable to further programming.” He believes that he would benefit from further substance abuse treatment.

45. August 31, 2007: Mr. Eastman was found to be in possession of contraband at the Warkworth Institution: 4 spikes, approximately 4 inches long. They were found in a tubular attachment to a key chain.

46. September 17, 2007: Mr. Eastman participated in the “National Sex Offender Moderate Intensity Program”. The purpose of the program was described as having been designed to “help offenders learn to reduce and manage their risk for sexual offending behaviour” over a 4-5 month period.

47. October 22, 2007: Mr. Eastman was observed in an altercation with other inmates at the Warkworth Institution.

48. October 23, 2007: In his Semi-Structured Interview at the Warkworth Sexual Behaviour Clinic, Mr. Eastman self-reported that he does not “drink or use drugs”. He further self-reported that he has never had a problem with alcohol or drug abuse and says that he has been “clean since 2000 – on parole”. When asked the question, “How many of your offenses involved alcohol or drug use”, Mr. Eastman responded, “no”. When asked, “Do you consider substance abuse to be related to your involved in violent and sexual behaviours” Mr. Eastman responded “no”, although he admitted to drug abuse after the separation from his first wife. When asked “What do you think your chances are of getting into trouble for another sexual offence in the future?”, Mr. Eastman replied, “never”. When asked how he felt about the program he replied: “I don’t care whether I take it or not – it’s not going to make a different [sic]. I already have a focus. I am just going along with the correctional plan”.

49. November 26, 2007: The National Sexual Offender Pre-Test indicates that Mr. Eastman agrees “strongly” that he would never commit a sexual offence in the future.

50. December 19, 2007: Mr. Eastman received a Certificate of Attendance from Griefshare.

51. March 17, 2008: Mr. Eastman was described as an excellent worker in the paint shop at Warkworth Institution. A pay increase was recommended.

52. May 8, 2008: The National Sexual Offender Post-Test indicates that Mr. Eastman now agrees “moderately” that he would never commit a sexual offence in the future.

53. May 9, 2008: The final report from the National Sex Offender Program, Moderate Intensity, stated amongst other things, that:

(i) Initially, he appeared to participate only to satisfy his Correctional Plan requirements.

(ii) That over the duration of the program, he had limited motivation to make “ongoing personal changes”.

(iii) He was defensive and had a desire for “power, control, and dominance”.

(iv) “… on many occasions throughout the program, Mr. Eastman was adamant that he understood all of the issues relating to his offending and he knew that he would never offend again or be in a position to be high risk to do so”.

(v) “Mr. Eastman seemed to understand the importance of negotiating consent and disclosing his offences prior to sexual activity with a partner. …. However, Mr. Eastman indicated that he continued to believe that his history of incarceration, drug use, criminal activity and sexual offending would have no consequences for his partner, children, and future relationships. It is our view that this is an overly optimistic and unrealistic view that could pose problems for him in the future that ultimately could increase his risk to reoffend”.

(vi) It appears that Mr. Eastman showed a satisfactory awareness of empathy. That said, he continued to blame the victim and deny responsibility.

(vii) Mr. Eastman expressed that things will be different when released because he said, “I have the desire to change”. The author reported that he believes that Mr. Eastman has issues related to “entitlement, self-centredness, power and control that require attention”.

(viii) The author concluded that, “Mr. Eastman has gained some insight into his risk factors and addressed a number of his treatment targets, our rating of his dynamic risk indicated a decrease from the start of the programs and was in the moderate-high range at the end of the program. However, Mr. Eastman’s dynamic risk level would significantly increase if he should become involved with a drug lifestyle, including showing evidence of sexual preoccupations (e.g., engaging in impersonal sex with prostitutes), show lack of concern for others, hostility or aggression, fail to manage anger or other negative emotions, or show indicators of interest in non-consenting sexual activities”.

54. June 16, 2008: Mr. Eastman was described as an excellent worker in the paint shop at Warkworth Institution.

55. August 8, 2008: An Inmate Offence Report notes that Mr. Eastman threw his dinner at another inmate after a verbal argument.

56. September15, 2008: Mr. Eastman was described as an “excellent worker” in the paint shop.

57. September 23, 2008: A probation officer reported that Mr. Eastman was disrespectful of her and described him as “unreceptive, and belligerent, as per usual”. She felt that he was trying to intimidate her.

58. October 2, 2008: Mr. Eastman signed a letter to the National Parole Board opposing the recommended residency condition and concern over media interest in his case. It said, amongst other things:

…With community safety in mind, the release conditions imposed are sufficient without imposing residency to manage my risk appropriately and my ongoing commitment to rehabilitation will afford me the opportunity to successfully reintegrate. …

My past conduct has been anything but exemplary and I am committed to my rehabilitation to protect society and being a responsible member of the community with maintenance programming and my familial responsibilities being priorities upon my release. …

My past has already had a negative impact in my family’s lives and I would like for them to no longer suffer for the mistakes of my past as I am committed to being a rehabilitated member of society. …

59. October 16, 2008: The National Parole Board Pre-Release Decision Sheet cautioned Mr. Eastman as follows:

You were assessed at the outset of your current incarceration as a high risk for sexual re-offending. Following programming your risk level was adjusted to moderate/high with the caution that should you return to a lifestyle that includes drug use and prostitutes, or fail to manage your anger and aggression, your risk level would significantly increase. The Board notes that while you have a concerning history of drug abuse. [sic] Your past sexual assault was committed following drug use and that your current offence was committed after several days of cocaine usage. According to a self-assessment conducted by Correctional Services of Canada you require ‘low’ intervention in this area. The Board views that this may be an underestimation of your needs in this area and you have yet to undertake any interventions to address these substance abuse concerns. This is a contributing factor in your offending and, in the Board’s estimation, a lack of programming and change in this regard results in increased risk to the community.

As recommended by Correctional Services Canada, the Board is imposing a residency condition, as in the absence of such a condition and for the reasons outlined, the Board is satisfied that you will present an undue risk to society by committing a Schedule One offence prior to the expiration of your sentence. This is based on the commission of the current offence of Sexual Assault Causing Bodily Harm, as well as your criminal history, comprised of a prior sexual assault and involving the use of a weapon, domestic and other assaults; and your pattern of failing to comply with conditions on prior releases. The residency requirement is further warranted given your outstanding substance abuse needs.

It is clear close supervision of your activities and whereabouts in the community are considered paramount to monitor your overall stability and manage the risk that you present. Moreover, the Board is mandating your participation in programming to address substance abuse, personal/emotional matters, marital/family issues, and sex offender maintenance.

In addition to residency requirements and programming, you will be prohibited from using any drugs or alcohol as your commission of the current offence is directly related to your substance abuse concerns. Given your history of associations with drug dealers as evidenced by your ongoing cocaine use and the relationship between cocaine and your past and current offence(s), you will be prohibited from contact with criminal others.

In order to prevent any further harm, the Board is also prohibiting you from contacting the victim of your current offence. Further, in order to manage the risk you present, you shall report all female relationships, whether platonic or intimate, and any change in those relationships to your supervisor.

60. October 17, 2008: The National Parole Board Pre-Release Decision Sheet indicated that they were imposing a number of special conditions as they deemed them necessary to manage the risk that Mr. Eastman presents.

61. October 21, 2008: Mr. Eastman was released to the Hamilton Community Correctional Centre.

62. December 12, 2008: A suspension warrant was issued after urinalysis tested positive for cocaine. He was placed in medium security.

63. January 23, 2009: Mr. Eastman received a Certificate of Training for Safety, The Modular Way and Workplace Hazardous Materials Information System.

64. March 5, 2009: Mr. Eastman’s parole was revoked because he tested positive for cocaine while at the Hamilton Community Correctional Centre.

65. April 3, 2009: Mr. Eastman was described as a “great worker” in the paint shop at the Warkworth Institution.

66. April 28, 2009: Mr. Eastman refused to return to his unit when asked.

67. May 14, 2009: Mr. Eastman was released on statutory release.

68. 2019: Mr. Eastman has provided materials that demonstrate the following while awaiting disposition of these charges:

i. Successful participation in the Drug and Alcohol Awareness Program at the Toronto South Detention Centre.

ii. Mr. Eastman has contacted the John Howard Society suggesting that upon his release, he wishes to work with the Society to ensure his relapse prevention continues.

iii. Certificate of Completion: Anger Management Sessions for Men.

iv. Certificate of Completion: Anger Management Educational Session.

v. Certificate of Achievement: Cognitive Skills Workshop.

vi. Certificate of Completion: Being an Effective Father Educational Session.

vii. Certificate of Completion: Understanding Feelings Educational Session.

viii. Certificate of Completion: Looking for Work Educational Session.

ix. Certificate of Completion: Changing Habits Educational Session.

x. Certificate of Completion: Supportive Relationships Educational Sessions.

xi. Certificate of Completion: Connections Change is a Choice Rehabilitative Program.

xii. Certificate of Completion: Managing Stress Men’s Education Session.

xiii. Certificate of Achievement and Participation: Literal Change Education Program.

xiv. Certificate of Completion: Harm Reduction Workshop.

xv. Certificate of Attendance: Weekly Bible Studies.

xvi. A letter from the Duty Chaplain at the Toronto South Detention Centre stated that Mr. Eastman had participated in both Bible Studies and Chaplaincy Programs. He advised the Mr. Eastman “has modelled exemplary Christian character and has consistently taken advantage: of the programs to the obvious advancement of his own personal spiritual awareness which resulted in the positive mentorship to fellow inmates”.

xvii. Certificate of Completion: Great Truths of the Bible, Crossroads.

xviii. Certificate of Completion: Survey of the Bible. A letter from Crossroads indicated that Mr. Eastman did well in the program and showed great effort. He was described as “insightful” and that he can “see how his actions has hurt his family”.

xix. Certificate of Participation: Overcoming Loneliness Program with the Kingdom Covenant Ministries.

xx. Certificate from the New Life Correspondence School indicating that Mr. Eastman has completed 55 Bible Courses.

COURT FILE NO.: CR/17/70000636/0000

DATE: 20191017

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

MELVIN EASTMAN

RULING RE:

Dangerous Offender Designation and Sentencing

Kelly J.

Released: October 17, 2019

[^1]: These offences were committed contrary to ss. 246(a), 264.1(1)(a), 279(2) and 272(2) of the Criminal Code, R.S.C., 1985, c. C-46, respectively.

[^2]: MD, FRCP(C); Staff Psychiatrist Riverdale Probation and Parole Service and the Ontario Correctional Institute, Ministry of Community Safety and Correctional Service; Consultant Psychiatrist, Centre for Addiction and Mental Health (CAMH) and Lecturer, University of Toronto. Dr. Pallandi was qualified to give expert evidence.

[^3]: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.J. No. 62 and R. v. Dow, 1999 BCCA 177, [1999] B.C.J. No. 569 (C.A.)

[^4]: 2011 ONCA 840

[^5]: (1994), 1994 CanLII 9717 (NL CA), 115 Nfld. & P.E.I.R. 197

[^6]: See: R. v. Neve, 1999 ABCA 206 at para. 113

[^7]: See: R. v. George, 1998 CanLII 5691 (BC CA), [1998] B.C.J. No. 1505 (B.C.C.A.) at para. 23 and R. v. Bunn, 2012 SKQB 397, [2012] S.J. No. 637 (Sask. Q.B.)

[^8]: See: R.F.L., 2011 ONSC 1900, 2011 O.J. No. 3230 (S.C.J.) at para. 350

[^9]: See: Crown Counsel’s Factum for s. 753 Dangerous Offender Designation at para. 9

[^10]: See: R. v. Szostak, 2014 ONCA 15

[^11]: A period of incarceration, together with an LTSO that does not exceed 10 years.

[^12]: A determinate sentence.

[^13]: R. v. Boutilier, 2017 SCC 64 at paras. 57, 69-70

[^14]: Ibid., at para. 70

[^15]: See: R. v. F.E.D., 2007 ONCA 246, [2007] O.J. No. 1278 (C.A.) at paras. 44-45; para. 50, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 56; and R. v. McCallum, 2005 CanLII 8674 (ON CA), [2005] O.J. No. 1178 (C.A.) at para. 47, leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 145

[^16]: 2010 ONCA 291, [2010] O.J. No. 1577 (C.A.)

[^17]: 2010 ONCA 291, [2010] O.J. No. 1577 (C.A) at paras. 80-81

[^18]: See: R. v. Solano, 2014 ONCA 185, [2014] O.J. No. 1118 (C.A.)

[^19]: R. v. Eastman, 2018 ONSC 3688

[^20]: Mr. Eastman stated the following, amongst other things in his letter to the court. It is repeated verbatim: “I’ve been in for 3 yrs, I have had a lot of time to reflect on my life, things I’ve done, choices I’ve made, occations I’ve missed because of my selfish actions, people I’ve hurt, pain I’ve caused not just to my victoms, but also my family and myself all because of an addiction that I did not believe I had. I had been doing drugs so long and functioning I did not know or realize the effects that I have caused or the depth of pain and hurt brought on by me. I am so very sorry. I do understand now the pain I have caused and the trauma I’ve put my victoms through with this time away from drugs and counseling from Dr. Seat along with my church councelers I have gained some perspective knowledge and made some changes in my life. I will become a positive member of society. …”.

[^21]: See: Report of Dr. Wilson, dated December 12, 2000.

[^22]: i.e., cancelling the suspension, cancelling the suspension and altering conditions, cancelling the suspension but delaying the cancellation to allow the offender to participate in a program, refer to the Attorney General with a recommendation that charges be laid.