Court File and Parties

Court File No.: CR-17-30000754-0000 Date: 2018-11-07 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Courtney Foster

Counsel: Jerry Brienza for the Crown Brian Kolman for the accused

Heard: September 24, 25, 26 and 27, 2018

Favreau J.:

Introduction

[1] On November 9, 2016, Courtney Foster stabbed Barbara Foster multiple times.

[2] The issue to be decided in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Foster intended to kill Ms. Foster, in which case he is to be found guilty of attempted murder contrary to section 239(1)(b) of the Criminal Code. If not, Mr. Foster concedes that he is guilty of aggravated assault.

Review of the Evidence

[3] The Crown's evidence at trial included the testimony of Ms. Foster and two eyewitnesses, a number of photographs and an agreed statement of fact.

[4] The defence did not call any witnesses.

Events prior to November 9, 2016

[5] Ms. Foster testified that she and Mr. Foster were married in 1998.

[6] They have a 19 year old son, and Ms. Foster has an older son from a previous relationship.

[7] In 2016, they lived together with their son in a house in Ajax. Mr. Foster worked as an automotive technician for a car dealership. Ms. Foster worked as a clerk in a long-term care home.

[8] Ms. Foster testified that, throughout their relationship, Mr. Foster had, at times, been physically and verbally abusive.

[9] Ms. Foster gave evidence about a number of incidents prior to November 9, 2016.

[10] In August 2016, she went on a trip to Florida with a group of colleagues from her workplace. Mr. Foster did not go on the trip and it was her understanding that he was unhappy that she was going to be away during their anniversary. They had a number of arguments over the phone while she was away. When she returned from the trip, Mr. Foster picked her up at her workplace. In the car, they had a heated argument. Mr. Foster initially got off highway 401 to head home, but then "jumped" back on the highway. Ms. Foster felt trapped and, she threatened to call 911, after which Mr. Foster dropped her off at a police station where she made a complaint against him.

[11] Ms. Foster testified that the relationship worsened after this incident.

[12] In early September, when they were going to bed one evening, Mr. Foster punched her with his closed fist on her left thigh and left arm, and pushed her to the floor. The punches left bruises. The evidence at trial included a photo taken by Ms. Foster of a large bruise to her arm taken after this incident.

[13] The next morning, Ms. Foster went to work and talked to a co-worker about what had happened. The co-worker invited Ms. Foster to come stay at her home. That day, Ms. Foster went home to get some clothes, and then she went to stay at her co-worker's house. Ms. Walker lived with her co-worker from September 8, 2016 to November 9, 2016.

[14] Initially, Mr. Foster did not know where Ms. Foster was staying. Ms. Foster testified that Mr. Foster called her several times every day, saying that he would change. He also showed up at her work on a number of occasions.

[15] One evening, Mr. Foster came to her co-worker's home, evidently having figured out where Ms. Foster was living. Ms. Foster looked out the window and saw him outside. He saw her and got in his car, after which he reversed his car into her car. Throughout this incident, he called her several times.

[16] On another weekend evening, she was going out to meet a friend. When she went outside, she saw Mr. Foster on the side of the house. She got in her car, and Mr. Foster followed her. When she got to the mall where she was meeting her friend, her friend spoke to Mr. Foster and he left.

[17] On November 7 and 8, 2016, Mr. Foster sent Ms. Foster a number of text messages, alternatingly implying that she was having sexual relations with other men and asking her to call him. Ms. Foster testified that she did speak to him on the evening of November 8th, telling him that the relationship was over.

[18] On November 8, 2016, she also became aware that Mr. Foster posted a photo of her on Facebook, with a message referring to her in very derogatory terms.

November 9, 2016

[19] On November 9, 2016, Ms. Foster was scheduled to work from 8:00 am to 4:00 pm. She testified that she was running late getting to work because she was feeling unsettled due to the events of the previous day. She arrived at her workplace around 8:05 am.

[20] When she arrived in her car, she saw Mr. Foster's car parked in a parking lot adjacent to the parking lot in the back of her workplace where she normally parked.

[21] She felt concerned, and rather than parking where she normally parked, she drove to the front of the building. She then called 911, and said that her husband was harassing her. She testified that she also honked the horn of her car around the same time as she called 911.

[22] While Ms. Foster was on the 911 call, Mr. Foster approached her car, rolled his window down and said "let's talk". Ms. Foster did not open her window, said no, and moved her car forward.

[23] Mr. Foster then hit the back left hand side of Ms. Foster's car with the front right hand side of his car. At that point, Ms. Foster dropped her phone and the 911 call was interrupted.

[24] Ms. Foster testified that Mr. Foster then reversed his car and hit her car again. She said he did this twice, hitting her car three times in total. The third time, he hit the side of her car, pushing it onto the sidewalk, and blocking her from exiting the car on the driver's side.

[25] Ms. Foster then got out of the car through the door on the passenger side. As she got out of the car, she fell to the ground. At this point, she saw Mr. Foster coming toward her with a knife in his hand.

[26] She testified that she recognized the knife as one of the kitchen knives from the house she had shared with Mr. Foster. The blade was approximately 5 to 6 inches long and 2 inches wide.

[27] She tried to get up to run to the front door of her workplace, but Mr. Foster stabbed at her legs with the knife. She was then able to get up, but she stumbled and fell again, at which point Mr. Foster stabbed her in the chin.

[28] She was then able to get up again, after which Mr. Foster caught up to her. She either fell or he pulled her down, after which he put the knife to her throat, cutting her throat while saying "I'm going to fucking kill you".

[29] Ms. Foster then told him to think of their son. She also fought back, grabbing the blade of the knife with her right hand. Mr. Foster then pulled the knife out of her hand and left, walking toward the cars. She testified that, at this point, she was lying on her back, close to the entrance of the building.

[30] Soon after, one of her colleagues arrived, helped her get up and took her into the building. Once inside, she received some medical care, and was then taken by ambulance to the hospital.

[31] From the agreed statement of facts, the evidence is that, on November 9, 2016, following the incident at Ms. Foster's workplace, Mr. Foster went to his mother's house where he told his mother that he thought he cut Ms. Foster's throat. He was also hospitalized later that day after drinking cleaning fluids.

Evidence of the eyewitnesses

[32] As mentioned above, the Crown called two eyewitnesses.

[33] One eyewitness was a groundskeeper at the long-term care home. On November 9, 2016, he was outside the front of the building during the beginning of the altercation. His evidence is that he saw one car hitting another car twice. After the second collision, he saw a man holding a knife in one hand and holding onto a woman with his other hand. He recognized the woman as someone who worked at the long-term care home. He saw the man making a stabbing gesture toward the woman's neck. He then went into the building to get help.

[34] The other eyewitness was a clerk at the long-term care home. She testified that she went outside after being alerted by the groundskeeper that something was happening outside. When she got outside, she saw two people fighting. Initially, she did not know who they were, but then she recognized Ms. Foster, with whom she had worked for eight years. She did not recognize the man. She saw Ms. Foster struggling to get away and the man trying to pull her back. Eventually, Ms. Foster got away and walked toward her. Ms. Foster had one shoe off and was covered in blood. Ms. Foster's co-worker walked Ms. Foster into the building to get medical attention.

Injuries sustained by Ms. Foster

[35] From the agreed statement of facts, photos and Ms. Foster's evidence, it is evident that the injuries suffered by Ms. Foster were as follows:

• 6 stab wounds to her legs;
• 1 stab wound to her back;
• 1 stab wound in the area of her chin and jaw on the right hand side of her face, which was approximately 5 centimeters long and required 10 stitches;
• 1 stab wound to her neck, which required 3 stitches;
• Cuts to her right hand and fingers, which required over 60 stitches; and
• A broken nose (caused by one of the car collisions).

[36] Following the events of November 9, 2016, Ms. Foster received two and half weeks of in-patient rehabilitation to strengthen her legs so that she could regain the ability to walk, followed by several months of out-patient physiotherapy. She also had surgery on her right hand to repair nerve and tendon damage. At trial, she reported that she has permanently lost some strength and fine motor skills in her right hand.

[37] As a result of her injuries, she was off work until February of 2018.

Procedural background

[38] Mr. Foster was initially charged with 8 counts arising from the events of November 9, 2016, namely harassment, assault, dangerous operation of a motor vehicle, attempted murder, possession of a weapon for the purpose of committing an offence, theft of a vehicle, breach of probation and uttering death threats. He was also charged with one count of assault against Ms. Foster between September 1 and 30, 2016.

[39] At the beginning of trial, the Crown advised that it was only pursuing the September 2016 charge and the charge of attempted murder arising from the events of November 9, 2016.

[40] During his arraignment, following an inquiry into the voluntariness of his plea, Mr. Foster pled guilty to the September 2016 assault. He also pled not guilty to the attempted murder charge, with an indication from his counsel that he would plead guilty to a charge of aggravated assault if the Crown did not prove the attempted murder charge.

[41] The Crown and defence indicated that evidence at trial would include evidence in support of Mr. Foster's guilty plea in relation to the September 2016 assault.

Applicable legal principles

[42] Mr. Foster is presumed innocent, and, before I can find him guilty, I must be satisfied that the Crown has proven that he is guilty beyond a reasonable doubt.

[43] Proof beyond a reasonable doubt is a high standard. It is not enough for me to believe that Mr. Foster is probably guilty of attempted murder or even that he is likely guilty of attempted murder.

[44] In addition, the presumption of innocence stays with Mr. Foster throughout the case. It is only defeated, if the Crown has satisfied me beyond a reasonable doubt that Mr. Foster is guilty of attempted murder. The presumption of innocence also means that Mr. Foster does not have to testify, present evidence, or prove that he is innocent of attempted murder.

[45] I am to make the decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.

[46] In this case, in order to find Mr. Foster guilty of attempted murder, I must find that the Crown has proven beyond a reasonable that he intended to kill Ms. Foster. As held by the Supreme Court of Canada in R. v. Ancio, [1984] 1 S.C.R. 225, the mens rea for attempted murder is a specific intention to kill; recklessness or carelessness with respect to the consequences of one’s actions is not sufficient for a finding of guilt on a charge of attempted murder.

[47] In R. v. Martin, at paras. 6 and 7, Gordon J. held that, in order to determine a person's state of mind, it is appropriate to look at an accused's actions and words:

7 To determine Mr. Martin's state of mind, that is, what he meant to do, I must consider what in fact he did or did not do, how he did or did not do it, what he did or did not say. I must look at his words and conduct before, at the time and after the incident in question. All these things and the circumstances in which they happened shed light on his state of mind.

8 It is often said, as a matter of common sense, that if a sane and sober person does something that has predictable consequences that person usually intends or means to cause those consequences. In determining whether in all of the circumstances it is appropriate to draw this inference requires me to take into account all of the evidence…

[48] The types of factors the courts have looked at to determine a defendant's intent include the steps taken by a defendant to prepare for the attack, the words uttered by a defendant at the time of the offence, the type of weapon used, the amount of force used, and the parts of the body the defendant aims at or injures: see, for example, Martin, at para 12, R. v. Guedez-Infante, 2009 ONCA 739, at para. 3, and R. v. Kreindl, 2016 ONSC 4575, at paras, 47 to 49.

[49] With respect to the targeted body parts, aiming at vital organs is more demonstrative of an intent to kill than aiming at other parts of the body. For example, in Martin, at para. 12, the Court held that a gash made with a knife to the complainant’s throat supported a finding of an intent to kill. Similarly, in Guedez-Infante, at para. 3, the Court of Appeal accepted that aiming a gun at close range at the middle of a victim’s body was consistent with an intent to kill. In contrast, in Kreindl, at para. 49, Corrick J. found that it was not clear at what part of the body the accused had aimed his flare gun, and consequently she was not able to find beyond are reasonable doubt that the accused intended to kill the complainant.

Positions of the parties

[50] The Crown argues that the events in the time period preceding November 9, 2016, show the animus Mr. Foster felt toward Ms. Foster on that day, and that his actions and words on November 9, 2016, demonstrate his intent to kill Ms. Foster. In particular, the Crown relies on the fact that Mr. Foster exited his car with the knife, stated that he intended to kill Ms. Foster, and aimed the knife at her throat.

[51] Mr. Foster's lawyer argues that the evidence does not show beyond a reasonable doubt that Mr. Foster intended to kill Ms. Foster. He argues that Mr. Foster's actions on November 9, 2016, are equally compatible with a desire by Mr. Foster to get Ms. Foster's attention for the purpose of speaking about their marriage. In particular, he points out that Mr. Foster had made several previous attempts to speak to Ms. Foster in the past and that he asked to speak to her when she arrived at her workplace on November 9, 2016. He points out that Mr. Foster could have killed Ms. Foster if that was his intention given his size as compared to Ms. Foster's size. He also argues that Ms. Foster only sustained a small cut to her throat, and that Mr. Foster did not otherwise aim at her vital organs.

Analysis

[52] I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Foster intended to kill Ms. Foster. In my view, in combination, his actions and words on November 9, 2016, can only lead to the conclusion that he intended to kill Ms. Foster.

[53] I want to first address the credibility and reliability of Ms. Foster's evidence.

[54] I found Ms. Foster to be a very credible witness. She was calm and careful during the course of her evidence. She made a number of concessions during cross-examination about positive aspects of her relationship with Mr. Foster. She did not come across as vindictive or motivated by anything other than wanting to tell the truth about what happened.

[55] Overall, I also found that her evidence was reliable.

[56] There were a number of discrepancies between her evidence and the evidence of the eyewitnesses as well as her evidence at the preliminary inquiry. For example, the groundskeeper said that Mr. Foster's car had hit Ms. Foster's car twice, whereas Ms. Foster said that he hit it three times. In addition, the groundskeeper testified that part of the altercation took place on the grass whereas Ms. Foster was certain that they never stepped onto the grass despite the fact that her shoe was found on the grass. Also, Ms. Foster said that she was lying on the ground when her colleague came to get her, whereas her colleague said that she did not see Ms. Foster on the ground and that Ms. Foster walked toward her. Finally, at trial Ms. Foster said that she was certain that stab wounds to her legs and chin were made before the stab wound to her neck, whereas at the preliminary inquiry she said that she was not certain of the order in which she received her injuries.

[57] In my view, none of these are significant discrepancies and they do not affect the overall reliability of Ms. Foster's evidence. Whether Mr. Foster hit Ms. Foster's car two or three times, whether part of the altercation was on the grass, whether Ms. Foster was standing or lying on the ground when her colleague found her, or the specific order in which Ms. Foster received her injuries is not evidence that is material to the assessment of Mr. Foster's intention nor does it lead me to doubt the overall reliability of Ms. Foster’s evidence.

[58] These discrepancies do not detract from the following key facts that lead to me to conclude that Mr. Foster intended to kill Ms. Foster.

[59] On November 9, 2016, Mr. Foster was prepared. He was waiting for Ms. Foster when she arrived at her workplace. He had at least two knives in his car. One was a pocket knife that was found in his car after the stabbing and the other was the kitchen knife used to stab Ms. Foster which was never recovered. While Ms. Foster testified that he usually kept a pocket knife in his car, she did not know him to normally keep any kitchen knives in his car.

[60] Once Ms. Foster arrived at work, he resorted to violence almost immediately. While the defence argues that Mr. Foster's behaviour could be understood as motivated by a desire to speak to Ms. Foster, his actions are incompatible with this argument. After Ms. Foster arrived at work, Mr. Foster followed her to the front of the building, pulled up alongside her car, and said "can we talk". Immediately after she said “no”, he rammed her car two or three times, knocking it onto the sidewalk. As soon as she got out of her car, he exited his car with the kitchen knife in his hand and rushed toward her. He tried to prevent her from getting up, stabbing at her legs and at her chin.

[61] Ultimately, he went for her neck, while saying "I'm going to fucking kill you". The cut on Ms. Foster's neck is fairly small as compared to the wound on her chin, but her evidence is that it was when he had the knife up to her neck that she grabbed the blade of the knife and pled with Mr. Foster to think of their son. The severity of the cuts on her hand is compatible with her evidence that she had to grab the knife to prevent Mr. Foster from cutting her neck.

[62] The defence argues that, unlike other cases where courts have found an intent to kill based on an attack on vital organs, in this case Mr. Foster did not go after Ms. Foster's vital organs. He could have intended to cut her chin and the small size of the cut to her throat suggests that he did not intend to kill her. I disagree. The evidence from Ms. Foster and the eyewitnesses is that there was a struggle between Mr. Foster and Ms. Foster. He was going after her and she was trying to get away. In that context, the large cut to her chin suggests that he intended to go for her throat. This is supported by the fact that he did ultimately go for her throat. The fact that the cut to her throat is relatively small does not suggest that Mr. Foster did not intend to kill Ms. Foster; rather as reviewed above, this fact is consistent with Ms. Foster's evidence that she was successful in her struggle to pull the knife away from her throat and in persuading Mr. Foster to think of their son. At that moment, Mr. Foster may have changed his mind. But it is evident to me that, up to that time, his intent was to kill Ms. Foster.

[63] The fact that Mr. Foster inflicted a serious wound on her chin and also went for her neck in combination with the words he used, persuade me that his intention was not just to hurt her, but to kill her. His actions are not compatible with an intention to speak to Ms. Foster or to simply injure her. His words and actions lead to only one reasonable conclusion, and that is that he had the specific intention of killing Ms. Foster.

Conclusion

[64] Accordingly, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Foster is guilty of attempted murder contrary to section 239(1)(b) of the Criminal Code.

[65] I am also satisfied that the evidence at trial supports a finding of guilt against Mr. Foster in relation to the September 2016 assault charge, to which Mr. Foster pled guilty at the beginning of trial.

FAVREAU J. RELEASED: November 7, 2018