Court File and Parties

Ontario Court of Justice

Date: May 25, 2015

Court File No.: Ottawa 14-RM2311

Between:

Her Majesty the Queen

— and —

Christopher Hoare

Before: Mr. Justice Robert Wadden

Heard on: May 5 – 15, 2015

Reasons for Judgment released on: May 25, 2015

Counsel:

• Michael Boyce, Counsel for the Crown
• Eric Grainger, Counsel for Mr. Hoare

WADDEN J.:

[1] The Attack

[1] On the morning of April 2, 2014, Christopher Hoare attacked his wife with a baseball bat.

[2] Mr. Hoare was subsequently charged with Attempted Murder, contrary to s. 239 of the Criminal Code, Aggravated Assault, contrary to s. 268 of the Code, Assault with a Weapon, contrary to s. 267(a) of the Code and Suffocation contrary to s. 246 of the Code. On arraignment, he pleaded guilty to the count of Assault with a Weapon and attempted to enter pleas of Assault Causing Bodily Harm as included offences of Attempted Murder and Aggravated Assault. As the Crown did not consent to the pleas to the lesser charges, pleas of not guilty were entered on those counts and the count of suffocation.

[3] The charges involve an attack by Mr. Hoare on his wife, Kirsten Cote, at the family home in Ottawa. Mr. Hoare admits that on that morning he struck his wife on the head with a baseball bat with the intention of beating her unconscious, but he denies he had an intention to kill her. The issues before me are:

• whether the Crown has proven that Mr. Hoare intended to kill his wife;
• whether Ms. Cote's injuries meet the threshold for aggravated assault, as opposed to bodily harm; and
• whether the Crown has proven that Mr. Hoare intended to suffocate his wife.

Background

[4] Much of the evidence is not in dispute. Mr. Hoare was a well-respected real estate agent in Ottawa. He was described as the best listing agent in the city. Mr. Hoare had been married to Ms. Cote since December 2000. They had bought a house in Orleans, in suburban Ottawa, in 2001 and lived there at the time of the incident. The couple had five children ranging in age from twenty months old up to 12 years old. Four of the children were school age, and the toddler spent her days at home with Ms. Cote.

Financial Problems

[5] Ms. Cote was a stay-at-home mother and the couple relied entirely on Mr. Hoare's income for support. Mr. Hoare was responsible for all financial matters in the home, including paying bills. Unbeknownst to his wife, Mr. Hoare began experiencing significant financial difficulties due to his failure to pay income taxes.

[6] As a real estate agent, Mr. Hoare was an independent contractor and was responsible for the remittance of his taxes to the Canada Revenue Agency ("CRA"). His real estate broker, Paul Rushforth Real Estate, withheld income tax and HST in a separate account, on Mr. Hoare's behalf, and then paid amounts quarterly directly to Mr. Hoare for him to remit to the CRA. As of 2009 Mr. Hoare did not file any income tax returns and was not making remittances to CRA. By the fall of 2013 he was in arrears for unpaid taxes for over $200,000. His broker was directed by the CRA to garnishee 100% of Mr. Hoare's earnings as of November 2013. From that point on, Mr. Hoare was not receiving any income.

[7] In February 2014, Mr. Hoare borrowed $6000 from his father, telling him that things were tight but not telling him of his tax problems. By March 2014, the family's finances were precarious and mortgage and bill payments were being returned due to insufficient funds in the bank account. By the end of March, there were not sufficient funds in the couple's bank account to pay bills as they came due. Utilities were about to be disconnected. As of April 2, 2014 the couple's joint bank account was overdrawn and had a negative balance.

[8] Ms. Cote regularly used a credit card in her name for most of the family shopping. Mr. Hoare kept track of the finances for that card, as he did with all banking. As of the end of March 2014 the credit on that card was almost at its maximum.

Admissions about the Attack

[9] Mr. Hoare admits to many of the facts involving his attack on his wife. The assault on Ms. Cote happened on the morning of April 2, 2014, shortly after she told Mr. Hoare that she was going shopping. He did not voice any concerns about her shopping, however, after learning of her plans, he invited her to go into the garage of their home for a "surprise." Upon stepping into the garage, Mr. Hoare told Ms. Cote to close her eyes and not to peek. He then struck Ms. Cote in the head with a baseball bat.

Evidence of Kirsten Cote

[10] Ms. Cote testified that she thought her marriage to Mr. Hoare was perfect. The couple did not argue about anything and there had never been any violence in the relationship. She had no concerns for mental health or substance abuse issues. She testified that she had loved Mr. Hoare very much and believed he loved her too.

[11] Ms. Cote testified that in March 2014, it was her belief that Mr. Hoare had been waiting for a large paycheque to arrive, but she was not aware of the significant financial difficulties they had. On the early morning of April 2, Mr. Hoare came into their bedroom and announced that the paycheque of over $12,000 had arrived. This was not true, although Ms. Cote did not know it at the time. Believing the payment had arrived, Ms. Cote was relieved. The couple then carried on with their ordinary activities of preparing their children for the day. Ms. Cote dressed and fed the toddler. Mr. Hoare drove the four children to school and returned to the house.

[12] On Mr. Hoare's return Ms. Cote told him she was going grocery shopping. She spoke with him about making a list and invited him to join her. Mr. Hoare told her he could not go as he had things to do for the day. He did not voice any concerns about her going shopping or about the finances.

[13] Ms. Cote testified that Mr. Hoare then told her that he had a surprise for her. He gave her a plastic tray to hold and directed her to follow him to the attached garage. When she stepped into the garage, Mr. Hoare positioned her and told her to stand facing the wall and to hold the tray up. He told her to close her eyes as he stood behind her. Then, without uttering a word, he struck her on the back of the head with a baseball bat.

[14] The next recollection Ms. Cote had was of a loud ringing noise in her ears. She opened her eyes and looked around. She realized she was on her knees. Her first concern was for her husband, as she thought something had fallen on her and may have struck him too. She turned around and said "Are you okay, Christopher?" Then she was hit again.

[15] Ms. Cote testified that she was still on the ground when she was hit the second time. She testified that all the blows were to her head. After the second blow she was not sure what happened next, but she ended up on her back, desperately trying to figure out what had happened. She saw Mr. Hoare standing over her, holding a bat, with an expressionless look on his face. At one point he hit her on the forehead with the end of the bat. He ended up on top of her, crushing her with his weight to the point she was unable to breath. She asked him what he was doing, and begged him to stop. She pleaded with him, telling him that she wanted to see their children grow up. He said nothing in response.

[16] Eventually Ms. Cote was not able to say any more to Mr. Hoare, as she was no longer able to take breath in. She testified that he began to shove a dishcloth in her mouth. She fought back, knowing that she had to live for her children's sake. As he tried to push the cloth into her mouth she moved her face back and forth and side to side and tried to protect her face and airways.

[17] Somehow Ms. Cote managed to struggle free and reach the button to open the garage door. She pushed on it as Mr. Hoare was continuing to hold her by the arms and pull at her.

[18] As she pushed the button Ms. Cote heard Mr. Hoare say "I disgraced my family. I've ruined everything. I've lost everything. We have nothing."

[19] Ms. Cote twisted out of Mr. Hoare's grip and struggled to get out of the garage. She testified that she felt that if she didn't do so she was going to die. Mr. Hoare grabbed her and pulled at her, telling her to shut up, be quiet and get back in the garage. Ms. Cote made it into the driveway as far as the family minivan. She grabbed onto the front passenger tire, trying to wedge herself into the wheel well as Mr. Hoare was pulling at her trying to drag her back in the garage.

[20] At this point Ms. Cote was screaming as loud as she could, crying for help. Mr. Hoare continued to pull at her. At one point Ms. Cote's shirt came off over her head. Mr. Hoare grabbed Ms. Cote by the back of her pants and picked her up. He dropped her and she was able to get closer to the van again. As she continued to scream, he said "Shut up. Get back in the garage."

[21] As no one was responding to her screams, Ms. Cote told Mr. Hoare that she would get up herself. When he let go of her she lunged for the back tire of the car. She was trying to get to the street but he blocked her from going any further. Finally, a neighbour drove by and parked across the street. The driver got out and walked towards Ms. Cote and Mr. Hoare. The attack stopped and the police and ambulance were called.

Witnesses at the Scene

[22] The neighbour who came upon the scene was David Mason, who lived on the street and knew the couple. He got out of his car and could hear a woman yelling for help. He said it was "deafening" and that he had never heard anyone yell like that before. He approached the driveway and saw Mr. Hoare standing over his wife, looking down on her. Mr. Mason shouted "Chris, do you need help?" Mr. Hoare turned his head towards Mr. Mason and replied "I guess you could call an ambulance." Mr. Mason dialed 911 as he ran towards them, and as he got closer he could see Ms. Cote lying on the driveway with blood over her face and in her matted hair. He told the 911 dispatcher he needed an ambulance for a woman bleeding badly from her head. As he remained on the line he asked Mr. Hoare what had happened to her, to which he replied "I hit her." Mr. Mason then requested that police be dispatched as well.

[23] Mr. Mason described Mr. Hoare as standing over his wife in his stocking feet. He was not dishevelled. He had no visible injuries to his face or body. Mr. Mason observed that Ms. Cote was shaken and emotional and appeared frightened.

[24] Cst. Lenworth Vaz was the first responding officer. He found Ms. Cote lying on the driveway, with her face, hair and clothing covered in blood. He remained with Ms. Cote while another officer arrested Mr. Hoare. Cst. Vaz described Ms. Cote as frightened and scared and worried about her child. He remained with her as he was afraid she might die. When a third officer arrived Cst. Vaz went into the house to check on the baby. He found the child inside, uninjured, walking around, crying and looking for her mother. He secured the child and kept her inside at the request of Ms. Cote, who did not want the child to see her in the condition she was in.

[25] Cst. Vaz followed the ambulance to the hospital. He was so concerned about the apparent extent of her injuries that he took an audiotaped statement from Ms. Cote as he was afraid she might not survive. He was later told by hospital staff that the injuries were not life threatening.

Injuries to Ms. Cote

[26] Ms. Cote was transported to the Ottawa Hospital by ambulance. The paramedic described, and photographs admitted as Exhibit 4 show, that Ms. Cote was blood soaked on her admission to hospital, with dried blood in her hair and on the left side of her face, ear and neck. According to the medical evidence called, Ms. Cote was showing signs of blood loss on admission, with low blood pressure and a high heart rate. There was a laceration at the back of her head that had significant soft tissue swelling. The attending doctor closed this laceration with surgical glue. There was another laceration at the front of Ms. Cote's head, which did not require treatment. CT scans and x-ray examinations ruled out fractures or internal bleeding in the head or elsewhere.

[27] Photographs of Ms. Cote's injuries show bruising and a black eye on the right side of her face, bruising on her left hand and knees, and abrasions on her left arm.

[28] Since the day of the assault Ms. Cote has suffered headaches every day and has problems with her vision. She has been diagnosed as suffering from Post Concussion Syndrome. She now uses a walker to get around as she has trouble with her balance. She can no longer drive.

The Forensic Evidence

[29] When police examined the garage of the home they found Ms. Cote's glasses broken and lying on the floor. The aluminum baseball bat used in the attack was lying on the floor. It was stained with Ms. Cote's blood. Ms. Cote testified that the attack started near the door from the garage to the house, and there was extensive blood staining on the floor of the garage in that area. The tray that Ms. Cote had been holding was lying on the floor, splattered with blood. A bloodstained dishcloth was found on the floor. There was further bloodstaining on objects along the path out of the garage and along the side of the minivan. Ms. Cote's bloodstained shirt was lying in the snow in the driveway.

[30] When Mr. Hoare was examined upon arrest his hands, sweater and pants were bloodstained.

[31] The police seized the blood-stained bat, which was an aluminum regulation sized youth baseball bat. Ms. Cote testified that it belonged to one of her older children.

Testimony of Mr. Hoare

[32] Mr. Hoare testified in his own defence. He stated that his financial problems began in 2008, when the real estate market slowed and he changed employers. He neglected to file his taxes for several years and ignored all correspondence from the CRA. His wages were first garnisheed at 50% in 2012, and he found that was acceptable and did nothing to address it. He testified that it came as a shock to him that his wages were garnisheed at 100% starting in the fall of 2013, but he did nothing to deal with it and continued to ignore, hide, or throw out all correspondence from the CRA. He did not tell his wife that the taxes had not been filed, as he was of the view that she would be very angry about that. He lied to her many times when she inquired about the taxes. He did not tell her that his wages were garnisheed in 2012 or 2013.

[33] Mr. Hoare testified that he began consuming narcotics in 2013, taking speed and OxyContin. His use increased steadily, and he was consuming daily by April 2014.

[34] After his wages were completely garnisheed in 2013 Mr. Hoare consolidated all his savings to provide for living expenses. He withdrew tax money that was being withheld by his employer and instead of paying the CRA he used it towards his living expenses. He did not tell his wife, as he felt that she would divorce him if she knew the true state of their finances. His lies to his wife became more elaborate by March, 2014. He told her he was expecting a $12,000 paycheque, which he knew was not true. He made up stories to account for its delay.

[35] Mr. Hoare testified that by April 1, 2014 things had come to a head and he knew he could no longer hide their financial situation from his wife. By the end of that day the mortgage and car payments had come due and been returned for insufficient funds. There was no money left in the bank account and the credit card was at its maximum.

[36] On the morning of April 2, 2014, rather than tell his wife the truth he lied to her again – he told her that the expected paycheque had been received and all their financial problems were solved. He testified that when he got home from driving the children to school he intended to confess to her about the financial woes and tax problems. Instead, he lured her into to the garage and attacked her with the baseball bat.

[37] Mr. Hoare testified that as his wife told him of her plans to go shopping that day he could not get the words out to tell her the truth about the finances. He knew that if she went to the store she would discover their problems, as there was no money in the bank account or on the credit card. He testified that an idea came to him - that "it would be great" if she fell and broke an arm or leg, or got knocked unconscious, so she couldn't go to the store. He testified that he tricked her into going into the garage, gave her a tray to occupy her hands and positioned her to stand with her back to him, with her eyes closed. He picked up the aluminum baseball bat and swung at her head with the intention, he testified, of knocking her unconscious.

[38] Mr. Hoare testified that when the first blow hit Ms. Cote's head she "dropped like a stone" but remained conscious. Mr. Hoare testified that within seconds he swung again and hit her head with the bat a second time.

[39] Mr. Hoare testified that Ms. Cote looked terrified and horrified. She screamed for help, pleaded for him to stop and begged to know why he was attacking her.

[40] As Ms. Cote screamed for help and struggled to get to her feet Mr. Hoare pinned her down with his crushing weight – he was 365 pounds – and picked up the dish cloth to muffle her screams so the neighbours wouldn't hear. Mr. Hoare testified that he held the cloth one half inch away from Ms. Cote's mouth, not in or on her mouth, to muffle her screams. When that didn't work he used a shoe to muffle her screams. He testified that when Ms. Cote stopped screaming he removed his weight from her and she slowly got up. She walked unsteadily around the garage, eventually reaching the garage door opener. She opened the garage door and stumbled out of the garage, once again screaming for help, as Mr. Hoare grabbed at her to stop her. His description of his continued struggle with her near the minivan was similar to what she described. His description of the arrival of the neighbour, Mr. Mason, is substantially in agreement with his evidence.

Analysis of the Evidence

[41] Mr. Hoare has pleaded guilty to Assault with a Weapon and admits culpability for Assault Causing Bodily Harm, but not Aggravated Assault. He denies that he attempted to murder Ms. Cote or suffocate her with the cloth.

[42] Mr. Hoare is presumed innocent on those counts to which he has pleaded not guilty and the burden is on the Crown to prove those offences beyond a reasonable doubt. In determining whether the Crown has met this burden I must consider all of the evidence. Given that the accused has provided evidence I instruct myself in accordance with the direction of the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742, which may be summarized as follows:

• if I believe Mr. Hoare did not have the requisite intent for attempt murder, or that he did not attempt to suffocate Ms. Cote, I must acquit on those charges;
• even if I do not believe Mr. Hoare, if I am left with a reasonable doubt based on his evidence I must acquit on those charges; and
• even if I am not left with a reasonable doubt based on the evidence of Mr. Hoare I must be satisfied, based on the remaining evidence, that the Crown has proven the charges beyond a reasonable doubt.

Mr. Hoare's Evidence

[43] In assessing Mr. Hoare's evidence I note that he has a demonstrated ability and willingness to lie and deceive. He admitted that he lied frequently to his wife about their finances, including on the morning of April 2, 2014. He admitted he lied to the neighbour, Mr. Mason, telling him the incident with the bat had been an accident. He admitted he lied to the police, telling them that Ms. Cote had attacked him.

[44] Beneath the façade of his middle class life, Mr. Hoare was hiding unpaid taxes, insolvency and drug addiction. For five years he frequently and directly lied to his wife about their financial situation. He did not tell her that he had not filed tax returns, or that his wages were garnisheed. He did not tell her when their bank account was empty and credit cards at their maximum. He hid his drug addiction from her, and from his employer.

[45] Mr. Hoare testified that immediately after he had hit Ms. Cote with the bat his only concern was not getting caught for his crime. His mind immediately turned to "making up a story" about what had happened to Ms. Cote. After Mr. Mason arrived he spoke to Ms. Cote to determine if she would lie for him. He admitted that in the immediate aftermath of the attack on April 2, 2014 he lied to Mr. Mason and to the police. When he spoke to Mr. Mason he told him that the incident had been an accident. When he spoke to Cst. Matamoros he made up elaborate and detailed lies about what had happened, telling the officer that his wife was going crazy and had attacked him.

[46] Given his demonstrated dishonesty in the period leading up to the attack and in its immediate aftermath I have no doubt that Mr. Hoare would be willing to lie in court for his own benefit.

[47] In considering Mr. Hoare's explanations of his actions that morning, I find they are logically inconsistent. They do not make sense. He claims that his attack on his wife was solely for the purpose of preventing her from going to the store. Yet he rejected countless non-violent options available to him to accomplish that goal. He claims that a serious injury would have been enough to prevent her from going out that day, yet once she was hurt by the first blow to the head he did not let up. Instead, he swung the bat and hit her again. He persisted in attempting to beat her unconscious when she was already injured, and would not have been able to go to the store. He had no explanation for how he would convince his wife that something in the garage had just fallen on her. His testimony is illogical and unbelievable.

[48] Mr. Hoare's description of how he used the cloth against Ms. Cote, but made no contact with her face or mouth, is similarly nonsensical. He testified that he picked up the cloth to absorb the sound of Ms. Cote's screams, but held it some distance from her face. It does not seem possible that he would be able to hold a cloth at a steady distance from Ms. Cote's face, but never on her face, as he struggled with her. He suggests that the dish cloth could absorb the sound of her screams even if not in contact with her face or mouth. This defies all common sense. It is simply unbelievable.

[49] There were points in his testimony where Mr. Hoare would not make the most obvious concessions. He refused to agree that striking a person with a baseball bat would cause serious injury to them. He would not admit that hitting his wife into unconsciousness would cause serious injury to her.

[50] Although there are some aspects of Mr. Hoare's evidence that are consistent with the evidence of Ms. Cote, I find I cannot believe any of his evidence about his intentions, his mental state or his use of the cloth on April 2, 2014. I entirely reject his exculpatory evidence. I find it does not raise a reasonable doubt.

Ms. Cote's Evidence

[51] I accept the version of events as described by Ms. Cote. I find she was a credible, well-spoken witness who had no motive to lie. I accept that she was a woman deeply in love with her husband, who thought she was living in a perfect marriage. She had no reason to lie about the events of April 2, 2014. She was candid about limitations on her memory, such as, for example, exactly how she reached the garage door opener. However, her evidence is substantially corroborated by the forensic evidence at the scene, by her injuries and, most importantly, by Mr. Hoare himself, who confirmed many of the details of her evidence, such as how he tricked her into the garage and attacked her.

[52] I accept Ms. Cote's evidence as a fulsome, detailed and honest account of how she was subjected to a brutal and unrelenting attack by Mr. Hoare.

Application to the Charges

[53] Having made that finding I must still consider whether, based on the evidence I accept, the Crown has proven these offences beyond a reasonable doubt, and in particular whether it has met the high threshold to prove the count of Attempted Murder.

Count 1: Attempted Murder

[54] In order to prove Mr. Hoare guilty of attempted murder the Crown must prove beyond a reasonable doubt that Mr. Hoare, in attacking his wife, had the specific intent to kill her.

[55] In R. v. Ancio, [1984] 1 S.C.R. 225, McIntyre J. stated, at paragraph 32, that:

The completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include an intention to kill. […] the mens rea for an attempted murder cannot be less than the specific intent to kill.

[56] In R. v. Villagran, [2007] O.J. No. 818 (S.C.J.) McKinnon J. applied R. v. Ancio and reiterated the high threshold required to prove this offence. He stated, at paragraph 43, that:

The charge of attempted murder is very difficult to prove. The mens rea for attempted murder is the specific intent to kill, notwithstanding that if the victim actually died and the accused were charged with murder, certain mental elements other than an intent to kill could lead to a conviction for murder. In the case of attempted murder, while a mental state falling short of a specific intent to kill may lead to conviction for other offences, it cannot support a conviction for attempted murder.

[57] In R. v. Gordon, 2009 ONCA 170, 94 O.R. (3d) 1 (C.A.) the Court of Appeal stated, at paragraph 59, that "… although the completed crime of murder may be committed without proof of an intent to kill, for example under s. 229(a)(ii), the inchoate crime of attempted murder requires proof of an intent to kill …" The Court further stated, at paragraph 66, that "[t]he mens rea of attempted murder is the intent to kill. The mere fact that the completed crime, murder, may be established by proof of a mental element (mens rea) less than an intent to kill does not mean that any mens rea less than an intent to kill will be sufficient for attempted murder."

Proof of Intent

[58] In this case, the Crown argues that the mental state of Mr. Hoare, of his specific intent to kill Ms. Cote, may be inferred from the circumstantial evidence.

[59] In order to convict on circumstantial evidence the trial judge "must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty:" see R. v. Griffin, 2009 SCC 28, at paragraph 33.

Circumstances of the Attack

[60] In considering the circumstances of this incident, I consider first the weapon used by Mr. Hoare. Mr. Grainger suggests that use of the baseball bat is not consistent with an intention to murder, since there were numerous, more deadly, weapons that Mr. Hoare could have used to attack Ms. Cote, such as a knife from the house or a hatchet from the camping equipment.

[61] This argument does not convince me. Mr. Hoare testified that he specifically chose the baseball bat after looking around the garage and determining what weapons were available to him. He considered and rejected less sturdy potential weapons, such as planks of wood, as too light to accomplish his task. He clearly chose the baseball bat, although a lightweight youth bat, as suitable to inflict serious injury on Ms. Cote.

[62] It is a matter of common sense that a baseball bat is a potentially deadly weapon, especially when used against a victim's skull. This is well recognized in popular culture and legal authorities.

[63] The fact that Mr. Hoare did not choose a different weapon does not take away from the fact that he chose a potentially deadly weapon to attack Ms. Cote. Mr. Hoare's use of the baseball bat as a weapon is consistent with an intention to kill Ms. Cote.

[64] The manner in which Mr. Hoare used the weapon also supports an inference of an intention to kill. He struck Ms. Cote with a two handed swing of the bat, directly against her head, while she was in a completely vulnerable position. When she fell to the ground – "dropped like a stone", in his words – he immediately struck her again, across the back of the head, within seconds of the first blow. I accept Ms. Cote's evidence that he once again struck her in the front of the head as she lay on the ground.

[65] After he had finished using the bat, Mr. Hoare continued a brutal and unrelenting attack on his wife. He lay himself on top of her, crushing her with almost the full force of his enormous weight. I accept Ms. Cote's evidence that he tried to suffocate her with the cloth, and that he was trying to stuff it into her mouth as she fought against him. The bloody condition of the cloth is consistent with her description, and inconsistent with Mr. Hoare's testimony that he hovered it over her mouth, never touching her. He continued the assault as she fled from him. He tried to prevent her from leaving the garage, pulling at her. He tried to drag her back into the garage as she desperately clung to the tire of their van. His violence against her was unrelenting. The only inference I can draw is that Mr. Hoare intended to keep Ms. Cote in the garage so he could cause greater harm to her. This would have been in addition to the brutality and serious injury he had already inflicted on her.

[66] Mr. Grainger points out that the injuries actually inflicted on Ms. Cote were not life threatening. There was, for example, no fracture of the skull or internal bleeding. He asks me to find this indicates a lack of intent by Mr. Hoare to kill Ms. Cote, in that his assault is consistent with "applications of force that, while completely unjustified, still indicated that they were caused in a manner that was to a degree measured and restrained," as stated by Fairgrieve J. in R. v. Shafik, 2010 ONCJ 469.

[67] I am not persuaded by this argument. The failure of Mr. Hoare to inflict fatal injuries on Ms. Cote may be attributed to his lack of fitness or strength, her strong physical constitution, her unfailing determination to resist him for the sake of her children, of any combination of those. On considering all of the evidence, I do not attribute it to any lack of effort on Mr. Hoare's part. I do not find that his actions were in any way measured or restrained.

[68] I find that the actions of Mr. Hoare were brutal, unrelenting and potentially fatal. He planned his attack on Ms. Cote. He deceived her into going into the garage. He deliberated on the choice of a weapon, and the one he chose was capable of killing her. He took deliberate steps to place her in the most vulnerable position she could be in, with her hands occupied so she could not resist blows, and with her back turned and eyes closed so he could strike her without any warning. He used a deadly weapon to inflict blows where they would cause the most harm, directly on her head. As she lay battered, bleeding and seriously injured on the floor, he laid his crushing weight on her and attempted to suffocate her. He continued to fight with her as she tried to escape. I find Mr. Hoare was not attempting to merely injure Ms. Cote. Even after he had seriously hurt her, the attack continued.

[69] The only rational inference I can draw, in considering all of the circumstances of the attack, is that Mr. Hoare intended to kill Ms. Cote.

[70] I therefore find that the charge of Attempted Murder has been proven beyond a reasonable doubt.

Count 2: Aggravated Assault

[71] Mr. Hoare is further charged that he "did wound, maim, disfigure or endanger the life of Kirsten Cote, and thereby commit the offence of Aggravated Assault" contrary to s. 268 of the Criminal Code.

[72] The Crown's position is that Ms. Cote was wounded or maimed. Mr. Hoare's counsel takes the position that the injuries to Ms. Cote meet the threshold for "bodily harm" under the Code, but do not meet the threshold for wounding or maiming under s. 268 of the Code.

[73] In this case, the injuries to Ms. Cote's head involved a significant breaking of the skin and bleeding. Ms. Cote's hair was blood soaked. The scene in the garage shows significant bleeding took place there. Mr. Mason and Cst. Vaz noticed significant bleeding, so much so that Cst. Vaz was afraid for Ms. Cote's survival. At the hospital Ms. Cote had symptoms of blood loss. The cut to the back of her head required medical intervention and was surgically glued.

[74] Ontario courts have accepted a definition of "wound" as a breaking of the skin, following R. v. Littletent, 1985 ABCA 22, 59 A.R. 100 (C.A.): see R. v. Beaudrow, [1992] O.J. 2430 (C.A.). In R. v. Palmer, [2007] O.J. 1981 (S.C.J.) Blishen J. referred with approval to authorities that described "wound" as "… a cut or breaking of the skin which bleeds, which is more that than transient or trifling, and which will leave a scar if not surgically altered."

[75] Without even considering the long-lasting, post-concussion effects on Ms. Cote, it is clear that the injuries to her head were lacerations caused by blunt force that broke her skin and caused noticeable blood loss. It is clear that Ms. Cote was "wounded", as that term is defined in the authorities.

[76] I therefore find that the offence of Aggravated Assault has been proven beyond a reasonable doubt.

Count 3: Assault with a Weapon

[77] Mr. Hoare admits his guilt to the offence of assault with a weapon contrary to s. 267 of the Code.

Count 4: Suffocation

[78] Mr. Hoare is charged that he attempted to suffocate Ms. Cote with a cloth, with the intent to enable himself to commit an indictable offence, contrary to s. 246(a) of the Code.

[79] As stated above, I accept the evidence of Ms. Cote that Mr. Hoare attempted to suffocate her with the dishcloth that was found in the garage. I find that Mr. Hoare did this to overcome her resistance as part of his attempt to murder her.

[80] I therefore find the Crown has proven this charge beyond a reasonable doubt.

Conclusion

[81] In conclusion, Christopher Hoare is found guilty of Attempted Murder, contrary to s. 239 of the Code, Aggravated Assault contrary to s. 268 of the Code, Assault with a Weapon contrary to s. 267 of the Code and Overcoming Resistance by Suffocation contrary to s. 246 of the Code.

Released: May 25, 2015

Signed: "Justice Robert Wadden"