Court Information

COURT OF APPEAL FOR ONTARIO DATE: 20210507 DOCKET: C67370

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Courtney Foster Appellant

Counsel: Courtney Foster, acting in person Amy Ohler, appearing as duty counsel Philippe Cowle, for the respondent

Heard and released orally: May 5, 2021 by video conference

On appeal from the convictions entered on November 7, 2018 and the sentence imposed on March 7, 2019 by Justice Lise Favreau of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of attempted murder. The victim was his wife. He was prepared to plead guilty to the lesser included offence of aggravated assault. The only issue at trial was whether the appellant had the requisite intent for attempted murder.

[2] The trial judge found that he did. She sentenced him to a global term of imprisonment of 10 years for the attempted murder and a separate assault on his wife, to which he had pled guilty, less four years’ credit for pre-sentence custody, for a net sentence of six years.

[3] The appellant appeals his conviction for attempted murder and seeks leave to appeal the sentence imposed.

[4] As to his conviction, the appellant argues that the trial judge did not consider all his arguments and that the verdict is unreasonable. The appellant says he went to his wife’s workplace just to talk to her, and not with the intent of murdering her. He says he did not say “I’m going to fucking kill you”. He says there was no proof that he took the kitchen knife, which he stabbed his wife with, from the kitchen that day.

[5] The trial judge addressed the arguments made by the appellant’s trial counsel in her careful reasons.

[6] The Crown’s evidence included the testimony of the appellant’s wife and two eyewitnesses. The defence did not call any witnesses. The trial judge was satisfied beyond a reasonable doubt that the appellant intended to kill his wife. The appellant was prepared. He was waiting for his wife at her workplace. He had at least two knives. When his wife arrived, he resorted to violence almost immediately. He stabbed her multiple times, ultimately going for her neck while saying “I’m going to fucking kill you”.

[7] The trial judge’s finding that the appellant intended to kill his wife was amply supported by the record. The verdict is not unreasonable.

[8] Turning to the sentence appeal, the appellant argues that his sentence is too harsh, given what happened. Ms. Ohler, who assisted the appellant on his sentence appeal, argues that the trial judge did not give the Duncan credit which the defence submitted was appropriate, and which the trial judge appeared to have agreed was appropriate.

[9] There is no basis for this court to interfere with the sentence imposed. The trial judge made no error in principle and the sentence imposed is not demonstrably unfit.

[10] The trial judge noted the several aggravating factors in this case. The victim was the appellant’s spouse. The attack on her was very violent and sustained. The physical, emotional and financial impact on her has been very significant. And the appellant had previously been found guilty of crimes involving violence.

[11] The trial judge also considered the mitigating factors: the appellant pled guilty to another assault, and was prepared to plead guilty to aggravated assault, in relation to the stabbing of his wife. He worked full-time. He faces deportation at the conclusion of his sentence. He expressed some remorse, and he had participated in some programming in pre-trial detention.

[12] Finally, the record does not support Ms. Ohler’s submission. Trial counsel sought six months for Duncan credit, and that is what the trial judge gave him.

[13] Accordingly, the appeal against conviction is dismissed and leave to appeal sentence is denied.

“Alexandra Hoy J.A.”

“C.W. Hourigan J.A.”

“B. Zarnett J.A.”