Court of Appeal for Ontario

Date: 2018-12-05 Docket: C63025 Judges: Hourigan, Pardu and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Christopher Hoare Appellant

Counsel

Lawrence Greenspon, for the appellant Michael Perlin, for the respondent

Heard and released orally: December 3, 2018

On appeal from: the conviction entered on May 25, 2015 and the sentence imposed on January 13, 2016 by Justice Robert Wadden of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of attempted murder and attempt to overcome resistance by suffocation. The victim of the offences was his wife. He was sentenced to 11 years in custody.

[2] The trial Crown submitted that an order should be made pursuant to s. 743.21 of the Criminal Code prohibiting the appellant from having any communication with his children, notwithstanding any family law proceedings. Defence counsel at trial submitted that any such order under s. 743.21 should be made subject to any family court orders. The sentencing judge imposed an absolute prohibition on contact with the children during the custodial portion of the sentence. The propriety of that order is the only issue on appeal.

[3] The appellant submits that the sentencing judge erred in principle in failing to recognize the division of responsibility between different specialized regimes that govern the relationships between parents and their children. Specifically, the sentencing judge should have permitted the family court or the Children's Aid Society to determine the nature of his relationship with his children. In addition, the appellant submits that the reasons were inadequate and the sentence was unfit.

[4] We would not give effect to these submissions.

[5] The judge was not obliged to make his order under s. 743.21 conditional on an order made by the family court or any CAS proceedings. He was entitled to make the order that he did protecting the children as third parties. Moreover, his reasons and the record amply demonstrate why the order was made. This was an horrific act of violence that had a direct impact on the well-being of the children. It was clearly in their best interests that the family have a cooling off period to heal and regain some normalcy in the children's lives.

[6] In addition, the children's best interests are inextricably linked to their mother's well-being. She was left physically, emotionally and financially devastated by the attack. In these circumstances, it was in the best interests of the children that a family law proceeding be avoided during the custodial portion of the appellant's sentence.

[7] In short, there was no error in principle and the sentence was fit.

[8] The conviction appeal is dismissed as abandoned. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

C.W. Hourigan J.A. G. Pardu J.A. Harvison Young J.A.