Court Information
Ontario Court of Justice
Between: Her Majesty the Queen — and — Ronald Conway
Before: Justice S.E. Marin
Heard: January 29, 30; April 25, 29; June 6, 2013
Reasons for Sentence Released: June 27, 2013
Counsel:
- Megan Petrie, for the Crown
- Deborah M. Bloomberg, for the accused Ronald Conway
MARIN J.:
Introduction
[1] This is a case where a dysfunctional relationship fuelled by addiction and disadvantage erupted in violence harming a spouse. The challenge for this court is how to sanction Mr. Conway's criminal mistreatment of his wife.
[2] Mr. Conway has a lengthy criminal record documenting his predisposition for violence towards others. In the past decade, that violence has been frequently directed towards his intimate partners. Since 2004, Mr. Conway has been convicted four times for events involving domestic violence. This case is his fifth conviction against a third partner.
[3] The prosecution seeks the maximum sentence of eighteen months jail in totality, arguing that a lengthy sentence is necessary to address the principles of denunciation, specific deterrence and the protection of Mr. Conway's past and future intimate partners. As Mr. Conway is not detained in custody on these charges, he should not be credited with any time spent in pre-trial custody on other matters. In addition, the Crown seeks the maximum period of probation to address Mr. Conway's rehabilitative needs and to address any residual safety concerns on the part of the victim.
[4] The Defence acknowledges the need for a denunciatory sentence but submits that specific deterrence and the long-term protection of Mr. Conway's intimate partners could best be achieved by a rehabilitative sentence focused on counselling and treatment for his addiction, anger management, and psychological issues. Ms. Bloomberg agrees that Mr. Conway has not been detained on these charges but she contends that his pre-trial custody of six months and ten days should be credited to these matters and deducted from any pre-trial consideration he might otherwise be entitled to if he is convicted of outstanding matters. In the result, the defence position is that Mr. Conway should receive a suspended sentence and the maximum probationary term.
[5] The disparate positions of counsel require a more detailed examination of the factors in issue in this case as they relate to the offences and the offender.
Offence-Specific Factors
[6] After a summary trial, I found Ronald Conway guilty of three counts of assault, one count of forcible confinement, one count of threatening bodily harm and one count of failing to comply with probation. All of the offences took place on the afternoon of May 4, 2012 in Scarborough and they involved a series of altercations between Mr. Conway and his wife, Jennifer Hall. Both had issues with substance abuse and they had recently been arrested on shoplifting charges. Ms. Hall's bail contained a term that she was not to have contact with Mr. Conway. Despite this term, Ms. Hall went to see Mr. Conway two days before these offences. She could not remember where they stayed. She believed they had probably smoked crack cocaine on the day of the incidents resulting in these charges. Concerned citizens who observed Mr. Conway's assaultive behaviours contacted the police rather than Ms. Hall.
[7] Although I found Ms. Hall to be a reluctant witness who related what happened to her in a minimalist manner, I found her to be a believable witness who was candid with the court about her addiction and mental health issues. I found that the reliability of her testimony was bolstered by the observations of three independent witnesses who observed portions of the various incidents and by her visible injuries.
[8] Ms. Hall testified that she drove Mr. Conway to his daughter's apartment so that he could drop off some of his belongings. After parking the car, Mr. Conway became angry because Ms. Hall dropped him off at the wrong door. He "lost it" in her words. He pulled Ms. Hall out of the car, ripping the keys from her hand. This forms the basis of the first assault conviction. She kicked him in the genitals because he hurt her. Their loud argument in the parking lot attracted the attention of two tenants.
[9] The couple proceeded into the building where their heated argument continued in the lobby. Mr. Conway was concerned that Ms. Hall's screaming would get his daughter in trouble with the building's superintendent. He grabbed Ms. Hall by the throat and lifted her off her feet, choking her and causing the bruises to her neck that are depicted in the photographs filed as Exhibit 4. This forms the basis of the second assault conviction. She punched him to make him let go, hard enough to bruise her hands. He released her and they went up to the fifth floor where Mr. Conway dropped off some belongings in his daughter's apartment. They returned to their car.
[10] When Ms. Hall tried to get into the driver's seat, Mr. Conway pulled her out by her hair and dragged her around to the front of the car. She was resisting, struggling and screaming. A man riding by on a bike saw the fight and saw Mr. Conway grab Ms. Hall and slam her down on the hood of the car. Despite her resistance, Mr. Conway forcibly put Ms. Hall into the passenger side of the car. He then got into the driver's seat and the car sped off. The man called "911". One of the tenants who had observed the earlier altercation also saw Mr. Conway slam Ms. Hall down on the hood of the car and force her into the vehicle before it drove away. Inside the car, Ms. Hall said that "lots of bad, stupid, mean stuff" happened, including her punching Mr. Conway in the head and him slapping her on the face about three times. Ms. Hall got into the back seat for a few minutes because she did not want to be slapped. Mr. Conway told her that she had better get in the front or he would knock all her teeth out. She returned to the front seat. Mr. Conway continued to verbally abuse her. He told her that he didn't love her, that he could do better than her and that he had been with two other women that week. He told her that he would get his daughters to beat her up. Ms. Hall did not try to get out of the vehicle because she believed it was not safe to do that. This forms the basis of the convictions for the third assault, forcible confinement and threatening charges.
[11] The couple drove around for a period of time and stopped at a Value Village to buy a dress for Ms. Hall before returning to Mr. Conway's daughter's apartment building. When they returned, the police were still there investigating the "911" call. Although Mr. Conway attempted to avoid the police by parking in an alley, the couple were detected and Mr. Conway was arrested. At the time of his arrest, Ms. Hall was visibly scared and shaken. Even though he was under arrest, Mr. Conway continued to talk and yell at her until she was removed from the vehicle and directed elsewhere.
[12] In cross-examination, Ms. Hall admitted that she wrote a letter on October 8, 2012 recanting these allegations. She said that when she wrote the letter, she wanted to be with Mr. Conway more than anything and that they were "soul-mates". She testified that it was Mr. Conway's idea to explain the bruises on her neck by saying that he was only restraining her from running into traffic to kill herself, which she said was not true. She maintained that she told the truth during her videotaped statement to police.
[13] Ms. Hall said that despite these offences, she continued to love Mr. Conway and to believe they had a future together until sometime after Christmas 2012, when she got the flu. She spent a month in bed, abstaining from drugs and contact with Mr. Conway. She thought about the physical, emotional and financial costs to her of "life in the fast lane" with Mr. Conway. She testified that "between the drugs, the lying, the hitting", acquiring a criminal record and losing her car, her licence and her jewellery, she realized that she couldn't live his lifestyle. By the time of trial, she had determined that their relationship was over. She wants no further contact with Mr. Conway.
[14] I find that there are no offence-specific mitigating factors apart from the fact that the injuries were relatively minor given the disparity in height, weight and strength between Mr. Conway and Ms. Hall. Ms. Hall is a frail woman, barely five feet tall and under one hundred pounds in weight. Mr. Conway is closer to being six feet tall and he weighed nearly two hundred pounds at the time. The facts that Ms. Hall sought out Mr. Conway despite her bail term and that she fought back do not mitigate Mr. Conway's violence, in my view.
[15] In aggravation, these were serial offences of domestic violence. This was not a momentary loss of control on Mr. Conway's part resulting in a single outburst. Instead, he gave vent to a sustained rage expressed in continuous and escalating physical and verbal violence over a period of time. The risk of serious harm to Ms. Hall was present, particularly in the episodes involving choking and slamming her head on the car hood. Mr. Conway was not deterred by the presence of others or the possibility of detection. The offences took place in daylight and public, apart from the threats made in the car. Mr. Conway knew Ms. Hall's vulnerabilities and he exploited them, attacking her body and her self-esteem. I accepted Ms. Hall's testimony that he was instrumental in assisting her with her recantation.
Offender-Specific Factors
[16] I have the benefit of a quantity of information about Mr. Conway.
[17] Two Pre-Sentence Reports, a very dated one from February 20, 1998 and a current one dated April 15, 2013 have been filed with the court. I have a number of letters of support from Mr. Conway's family and a lifelong friend. These letters identify Mr. Conway's addiction as the cause of his criminality and implore me to impose a rehabilitate sentence focused on treatment rather than more incarceration. I have letters from his Chaplain at the detention centre, confirming his spiritual commitment, recent baptism and on-going pursuit of counselling in person and by correspondence.
[18] Mr. Conway has provided three hand-written letters describing his "broken place". In his three letters, Mr. Conway describes his plight and his consequent severe addiction issues. He focuses at length on his love for his beautiful daughters and the impact his failings have had on his relationships with his children and grandchildren. He refers very sparingly to the impact of his violence on their mothers and credits jealousy, infidelities, and mutual mental health and addiction issues for the breakdown of his intimate relationships.
[19] Mr. Glenn Jones, a Probation and Parole Officer who dealt with Mr. Conway for a period of time, testified about his interaction with Mr. Conway and the Level of Service Inventory Risk Assessment he prepared for the York Regional Police Force in June, 2008. Dr. Larry Chad provided a brief letter enumerating Mr. Conway's current mental health, ADHD, anger and substance abuse issues and the medications he is taking.
[20] Mr. Conway's lengthy criminal record and transcripts of his earlier guilty pleas and sentencing hearings on charges of domestic violence have been filed as Exhibit 1. In addition, a transcript of Mr. Conway's guilty plea and sentencing on December 5, 2012 to offences post-dating the matters before me but also involving Ms. Hall has been filed by the Crown.
[21] In two other court proceedings and this one, Mr. Conway claimed an aboriginal ancestry engaging a consideration of the Gladue principles. Mr. Conway has provided variable information about his ancestry. In this matter, he was unable to provide any specific information about his aboriginal heritage capable of verification and it is clear that if he is aboriginal, this ancestry has played little if any role in his life. Therefore, although a Gladue Report was requested, one was never prepared and counsel agreed that the Gladue principles were not relevant to these proceedings.
[22] The material indicates that Mr. Conway is now 45 years of age.
[23] He is the youngest of seven children and there is a considerable age difference between Mr. Conway and his siblings. At present, Mr. Conway reports that his childhood and adolescence were marked by emotional and sexual abuse. He describes in his letters how he failed to thrive emotionally in a loveless family environment where his alcoholic father frequently told him he was an unwanted child. He was reclusive and felt depressed. His isolation was exacerbated by the breach of trust he experienced when his hockey coach, Gordon Stuckless, sexually abused him. Mr. Conway relates that he turned to alcohol and drugs at a very early age to numb his emotional pain. He repressed his memories of the sexual abuse, disclosing them for the first time in the course of these proceedings. He hopes that the support of his faith, his family and his friends will offer a new opportunity to recover and heal now that he has finally acknowledged an important cause of his self-destructive behaviours.
[24] His family acknowledge Mr. Conway's addiction and attribute his problems to his painful childhood and his unresolved grief at losing his grandparents, parents, older brother and ex-wife between 1998 and 2000. They paint a picture of a "Jekyll and Hyde" character, one who is sensitive, caring and pro-social when sober and violent, self-destructive and "off the wall" when using drugs. Mr. Conway's letters indicate that he is an intelligent and articulate individual despite his lack of formal education.
[25] He left school at fifteen and worked intermittently thereafter. He developed an addiction to a wide variety of street drugs including cocaine and heroin. He trafficked in drugs to support himself. He advised the probation officer who prepared the most recent pre-sentence report that he began to have problems with authority and flashbacks related to his sexual victimization in his mid-teens. He started to shoplift and escalated to other more serious crimes to support his addiction, including break and enters and a robbery. He states that he suffers from a number of physical and mental health problems. For the past three years, he has been receiving social assistance.
[26] Mr. Conway has been involved in a number of relationships. He is the father of five daughters and the grandfather of a boy and a newborn girl. He has no contact with his two youngest children, whose mother, Kimberley Cruise, he was convicted of assaulting on three separate occasions between 2006 and 2009.
[27] The material indicates that Mr. Conway has been a controlling and dominating partner in his intimate relationships, virtually all of which have been conflicted and abusive.
[28] His first relationship with Julie Adolphson produced two daughters, Kylie and Krista. Mr. Conway remains close to both of his daughters and each has written a compelling letter describing his many virtues and the importance of their father to their family. In the earlier pre-sentence report, Ms. Adolphson reported that there had been abuse in the relationship although after the relationship ended Mr. Conway continued to be involved with his daughters without difficulty. Mr. Conway advised that this first relationship fell apart because he had no trust.
[29] His next relationship was with Hope Boreland. In the early pre-sentence report, she described him as someone who was "charming but dangerous". She advised that he had been both physically and mentally abusive towards her and she was shocked that he would provide her as a collateral source for information for the report. Through his counsel, Mr. Conway ascribes the violence in this relationship to his wife and to her addiction and mental health issues. Ms. Boreland died of an apparently intentional drug overdose in 2000. The child of this relationship, Hailey, lives with Mr. Conway's sister, Robin Cook.
[30] Prior to his relationship with Ms. Cruise, Mr. Conway was involved in a relationship with Theresa LaPierre. There is little information about this relationship beyond the transcript of Mr. Conway's guilty plea to a dated charge of domestic violence in which she was the victim. Mr. Conway admitted that in the course of their separation in May of 2004, he assaulted her and caused her bodily harm which was more than trifling. He was convicted of this on October 2, 2007 despite her lack of co-operation with the authorities. After credit for 100 days of pre-trial custody, he received a sentence of sixty days in jail.
[31] Mr. Conway's relationship with Ms. Cruise was a turbulent and volatile one. The couple parented Ms. Cruise's three children from other relationships and the two children they shared. One of their daughters was born with severe disabilities and was not expected to survive. Financial pressures and Mr. Conway's addiction issues were additional stressors to a family already coping with a special needs child.
[32] In 2006, Mr. Conway told the court sentencing him for the first of his three assaults on Ms. Cruise that his daughter's illness was "the biggest wake-up call any one man could ever receive", that he took "complete responsibility" for his actions and he was "willing to take whatever steps necessary to unite [his] family and become a better father and spouse and productive member of society." Justice McCreary spoke eloquently and at length to Mr. Conway about the importance of taking responsibility for his issues, particularly his addiction issues. Taking into account Mr. Conway's assertion that he was of aboriginal descent and that he had served the equivalent of eight months in pre-trial custody, Justice McCreary imposed a total sentence of one day and two years probation for a series of domestic violence offences that had taken place in late 2005 and early 2006 when Ms. Cruise was in the first trimester of her pregnancy. Mr. Conway's relapse and abuse of prescription narcotics was a factor in the commission of these offences. A significant aggravating factor was Mr. Conway's effort to silence Ms. Cruise by calling her and trying to persuade her to write a letter to his lawyer recanting her allegations.
[33] Despite this "wake-up call", Mr. Conway was convicted and sentenced to jail for assaulting Ms. Cruise for a second time while she was pregnant. In 2007, Mr. Conway told the court that he loved Ms. Cruise and just wanted a family. He presented himself as a changed man who had gotten off drugs and found a family life which he treasured. He explained the offences in the following way: "I work fulltime and I just let my anger get the better of me that day and I know I need counselling for it …" No mention was made of the first convictions involving Ms. Cruise in 2006 and the court was left with the impression that Mr. Conway had not relapsed from his successful residential treatment and counselling for drug addiction in 2005. Mr. Justice Minard took note of the positive steps Mr. Conway had taken since his treatment, Ms. Cruise's desire to reconcile and the special needs of their child. He sentenced Mr. Conway to 60 days jail in addition to 32 days of pre-trial custody and probation for eighteen months.
[34] In 2009, Mr. Conway was sentenced for the last cluster of domestic violence offences involving Ms. Cruise. He pleaded guilty to one count of forcible confinement, one count of threatening bodily harm, two counts of assault and three counts of failing to comply with three different probation orders. The Crown elected to proceed by indictment and sought a penitentiary sentence. Defence counsel was instructed to seek a sentence of one day in light of enhanced credit for five months pre-trial custody. Both counsel recommended a period of probation to address Mr. Conway's substance abuse issues. Defence counsel advised the court that Mr. Conway had "not received any treatment for his addiction" and he had "never had any significant drug counselling". Mr. Conway filed an articulate letter with the court apologizing for his actions. Justice Gorewich gave lengthy and considered reasons for imposing a sentence of nine months after credit for one year pre-trial custody. He imposed the maximum period of probation with terms that Mr. Conway attend for such assessment and counselling for substance abuse and anger management as probation might direct. Justice Gorewich described Mr. Conway's behaviour as "out of control" and told him that despite his personal problems and his addiction, "saying I'm sorry does not absolve you of anything". The effective sentence was one of nineteen months.
[35] Mr. Conway reconnected with Jennifer Hall after his relationship with Ms. Cruise ended. Like her, he believed they were soul-mates. They were married for two years by the time of these offences. Ms. Hall would not talk about her relationship with Mr. Conway prior to the offences beyond indicating that it began well and ended badly. She had mental health issues, including bipolar disease and depression. She testified that she did not use drugs or have a criminal record when she met him. Over the course of their relationship she became addicted to cocaine and other drugs.
[36] Mr. Glenn Jones testified at the sentencing hearing. He is an experienced probation officer who supervised Mr. Conway for over three years ending in October 2009. In 2008, at the request of the York Regional Police, Mr. Jones prepared a threat assessment on Mr. Conway. He reviewed the Ministry's extensive files on Mr. Conway, including case notes, police summaries and victim impact statements; a Discharge Report from the Mental Health Centre in Penetanguishene; and he spoke to Ms. Cruise on the phone. He completed the "Level of Service Inventory – Ontario Revision" and forwarded the results of his assessment to the police. He concluded that Mr. Conway was "a very high risk domestic offender".
[37] Mr. Jones is not a psychiatrist or psychologist. Cross-examination exposed weaknesses in his methodology in the preparation of the report. However, I am of the view that little turns on Mr. Jones' assessment of risk. It is beyond dispute that Mr. Conway is a serial abuser of his intimate partners.
[38] Mr. Conway has proven that he is at high risk to re-offend and he has, in fact, re-offended. The frequency of his domestic violence convictions against a number of partners over the past decade and the escalation in the levels of violence coupled with efforts to make the victim recant to obstruct justice, all support the common-sense conclusion that he is a high-risk domestic violence offender.
[39] There are certain inconsistencies in the information before the court and I have concerns about the reliability of Mr. Conway's present self-reports about the nature of his childhood and the extent of his health issues.
[40] The early pre-sentence report noted that Mr. Conway "reported a normal up bringing" where he "had the benefits of a good home, loving parents and siblings". The family home is described as "good, free from emotional, physical or sexual abuse". It is evident that the probation officer spoke to Mrs. Conway about her son to corroborate the information he provided. In the more recent report, Mr. Conway describes an emotionally abusive home dominated by a cold and alcoholic father who wished he had never been born. In their letters, each sister refers to the difficult life their brother has had due to his addiction. Neither sister talks about the difficult childhood their brother endured in an abusive family environment.
[41] Mr. Conway's reports of cancer are not corroborated by a physician despite the fact that there has been ample time to obtain letters. His description of his mental health ailments is largely uncorroborated by his psychiatrist, Dr. Chad. In his letter, the doctor does not say that Mr. Conway has been diagnosed with bipolar disease or an anti-social personality disorder or indeed, any major mental illness beyond "significant personality vulnerabilities", depression, anxiety and ADHD. Mr. Conway's close friend recommends that he be evaluated "for bipolar and prescribed medication" which would indicate that there has not been a firm diagnosis. It is of some significance that Dr. Chad was not aware that Mr. Conway was a heroin user and Mr. Conway never told the doctor he had a problem with drugs.
[42] After a careful review of all the material, there is a basis to conclude that Mr. Conway is a selective reporter who embellishes or minimizes his plight to suit his advantage.
The Law
[43] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions" that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and an acknowledgement of the harm done to victims and the community.
[44] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
[45] Proportionality is obtained by weighing the mitigating and aggravating factors of any case in the context of the operative sentencing purposes.
[46] In R. v. Bates, the Ontario Court of Appeal examined sentencing in domestic violence cases. The Court noted the increasing prevalence of domestic violence in our society and observed that "[c]rimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim" and that the victim often experiences an on-going fear of continuing verbal and physical abuse. The protection of the victim becomes more important where there are repeated acts of violence and it is apparent that court orders are not able to provide that protection.
[47] In R. v. Brown, the Alberta Court of Appeal had the following to say about domestic violence:
Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many women is increased by the financial and emotional situation in which they find themselves, which makes it difficult to escape. Such women's financial state is frequently one of economic dependence upon the man. Their emotional or psychological state militates against their leaving the relationship because the abuse they suffer causes them to lose their self-esteem and to develop a sense of powerlessness an inability to control events.
[48] The Court concluded that a sentence for offences of domestic violence should express the community's wish to repudiate such conduct in a society that values the dignity of the individual. Ontario courts have also stated that denunciation and specific deterrence must be the paramount purposes of a sentence for domestic violence. The principles established in these cases are now statutorily recognized in s. 718.2(a)(ii) of the Code, which deems it an aggravating factor when there is "evidence that the offender, in committing the offence, abused the offender's spouse or common law partner".
Analysis
[49] In my view, there are few factors in mitigation to be considered. Mr. Conway is not entitled to the mitigation of an early guilty plea. I accept for the purposes of this sentencing that he does come from a background of disadvantage and abuse, both emotional and sexual, and that he has unresolved issues related to grief. I accept that he has dealt with poverty and that he has a number of physical and mental health problems. He has a significant support system in the community. I do not view his addiction as a mitigating factor in the circumstances of this case. Mr. Conway has been an addict since he was in his mid-teens. He knows from experience that drugs increase his volatility and suppress his inhibition for violence. He also knows from experience that that violence is likely to be directed towards the person closest to him, in this case, towards his soul mate, Ms. Hall.
[50] There are a number of aggravating features.
[51] The offences Mr. Conway was convicted of are serious ones. I found that Mr. Conway repeatedly abused Ms. Hall by physically assaulting her three times and by threatening her with harm after forcibly confining her in his vehicle and driving off. He hurt her by pulling her out of the car initially, choking her in the lobby of the building and then slamming her head on the car hood and later, slapping her. He demeaned her verbally when they were in the car. He was not deterred by the presence of the public or daylight. His rage was sustained and it escalated. He created an environment of fear which controlled Ms. Hall by preventing her from escaping and immediately reporting these events. Her dependence on him was not financial as in the Brown case but one based on addiction and a lack of self-esteem. Mr. Conway was well aware of her vulnerabilities. It is apparent that but for the intervention of concerned citizens, these events would have remained hidden. When the authorities did become involved, Mr. Conway attempted to silence Ms. Hall by instructing her how to write a letter recanting her allegations and providing an innocent explanation for her injuries. These are cowardly offences and Mr. Conway attempted to manipulate the administration of justice to his personal advantage.
[52] At the time, Mr. Conway was on two separate probations, one for his earlier conviction for similar offences of domestic violence involving Ms. Cruise. He was aware of Ms. Hall's bail term to have no contact with him. After these offences took place, he was placed on bail to have no contact with Ms. Hall. It is implicit in my findings at trial that he breached his bail when he instructed her how to write a letter of recantation and he later acknowledged this breach, albeit in different circumstances, in his guilty plea in December 2012.
[53] Mr. Conway has a terrible criminal record containing 105 convictions between 1984 and the date of sentencing. Many of these are for property-related offences related to his addiction. He has eight prior convictions for assault. He has 18 convictions for breaches of probation or bail orders. His conduct in this case and his record compel me to conclude that Mr. Conway has absolutely no respect or regard for court orders. He has re-offended while on probation virtually every time. He has been to the penitentiary and he has been a statutory release violator.
[54] The picture that emerges from a review of the material is not flattering to Mr. Conway. He is a serial abuser of his intimate partners. He has attempted to silence his partners and force recantations of their complaints to police. He is both narcissistic and manipulative in his articulate descriptions of his "broken place" and his repetitive pleas for leniency to the courts. His acceptance of responsibility is limited because he is primarily concerned about the immediate consequences of his actions to himself rather than the long-term consequences to others. He seeks to share the blame with his partners, pointing to their addiction and other issues. He verbalizes but has not yet internalized the notion of self-responsibility. He speaks lovingly and glowingly about his sisters, his daughters and his grandchildren yet he is unable to commit to the long-term change in his behaviour which would let him be the constant positive presence in their lives that he says he wants to be. He knows through experience that his relapses into addiction and violence will be forgiven by his sisters and the daughters he is close to. There is little real incentive to change and regrettably, their stalwart support enables his persistent criminality.
[55] Mr. Conway has had the benefit of prior rehabilitative opportunities and sentences. He has completed a residential treatment program to address his addiction and mental health needs. He has had anger management counselling and counselling for domestic violence. He has enjoyed the continued support of his family and friends. However, he has not been able to sustain his commitment to change while in the community and his behaviours in a domestic context appear largely unaltered over the past decade. His prospects for rehabilitation must be viewed as guarded even with his new disclosure of sexual abuse and his new religious commitment. If there is any opportunity for rehabilitation, I am of the view that intensive counselling and treatment in a highly structured environment would present the greatest hope for change. Without treatment for his many issues, Mr. Conway remains an extreme risk to reoffend and to commit further acts of domestic violence against future partners.
[56] Although the Crown proceeded summarily in this case, the offences of forcible confinement, threatening bodily harm and breach of probation all have a maximum sentence of eighteen months. It is clear that the "worst offender, worst offence" principle no longer operates as a constraint on the imposition of a maximum sentence where a maximum sentence is otherwise appropriate. The Supreme Court provided the following guidance in R. v. Solomon:
A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be "scaled down" from the maximum on summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be "scaled up" from the sentence that the accused might have received if prosecuted by summary conviction.
[57] Both counsel provided jurisprudence to support their particular positions on sentence. Sentencing is an individualized process and no one case is completely identical to another. The cases provide principled guidance but are not determinative. I have reviewed all of the decisions provided to me. I am mindful of the principle against double punishment as that has been expressed by the Court of Appeal in the R. v. Berezowsky case.
[58] I am satisfied that a global sentence of eighteen months incarceration is a fit sentence for Mr. Conway. In my view, nothing other than a jail sentence of this length would be adequate to address the principles of denunciation, specific deterrence and protection of the public while also allowing for rehabilitation in a highly structured setting. This sentence is one month less than his previous sentence for similar offences involving Ms. Cruise and is the maximum sentence permissible at law. Had the Crown elected to proceed by way of indictment, it is my view that a penitentiary sentence would have merited serious consideration given the number of aggravating factors present in this case.
[59] I am also satisfied that this sentence must be served in a jail setting. While the range of the sentence would bring it within the parameters of a conditional sentence, I conclude that a community-based custodial sentence would not be a fit disposition because of Mr. Conway's pattern of breaching court orders and the extreme risk to re-offend that he presents. Serving his sentence in the community would jeopardize the safety of the public, particularly any future intimate partners he may have and it would not address his pressing rehabilitative needs. Indeed, I assume that defence counsel did not actively pursue this option because it is so clearly inappropriate in the circumstances of this case, quite apart from the issue of Mr. Conway's detention on other unrelated matters.
[60] Both counsel agree that none of the pre-trial custody is attributable to these offences. Mr. Conway finds himself in custody due to other allegations. I am advised that there was no application under section 524 of the Code to revoke his bail on these charges when he was subsequently arrested on other matters. His bail on these charges continues in effect. In these circumstances, I see no basis to credit him for pre-trial custody properly attributed to other matters.
Sentence
[61] The sentence is one of eighteen months jail to be apportioned as follows:
- On the forcible confinement charge: eighteen months jail
- On the threatening count: eighteen months concurrent
- On the fail to comply with probation count: eighteen months concurrent
- On each of the assault counts: six months concurrent
In addition, Mr. Conway will be placed on probation for three years on the following terms:
He is to keep the peace and be of good behaviour;
He is to appear before the court when and as required;
He is to report within two working days of his release from custody to a probation officer in this jurisdiction and thereafter when and in the manner directed by probation;
He is to have no contact direct or indirect with Jennifer Hall and he is not to attend at or be found within 200 metres of anywhere he knows her to live, work, go to school, worship or happen to be;
He is not to possess any weapon defined by the Criminal Code;
He is not to possess any firearm, ammunition, explosive substance or other prohibited or restricted weapons;
He is to take such assessment, counselling and treatment for substance abuse or psychiatric or psychological issues, including grief counselling and counselling for anger management and sexual victimization, as may be recommended for him by his probation officer. If directed by probation, he is to make a timely application for residential treatment for his addiction and/or mental health issues. If admitted into a residential treatment program, he is not to leave that facility unless he has the permission of the program administrator and his probation officer;
He is to attend and complete the PARS counselling program for domestic violence and provide proof of completion to his probation officer;
He is to sign any releases necessary to enable his probation officer to monitor his attendance and progress in any rehabilitative program;
He is to reside at an address approved of by probation and not move from that address without 48 hours notice in advance to probation.
[62] In recognition that the long-term protection of others is best achieved through successful rehabilitation, I make the strongest recommendation possible that Mr. Conway be incarcerated in a facility such as the Ontario Correctional Institute for treatment of his substance abuse, anger management and mental health issues.
Released: June 27, 2013
Signed: Justice Marin