COURT FILE NO.: CR-17-30000754-0000 DATE: 20190307 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – COURTNEY FOSTER

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

HEARD: February 11, 2019

REASONS FOR SENTENCE

FAVREAU J. :

Introduction

[1] On November 7, 2018, following a judge alone trial, I found Courtney Foster guilty of one count of attempted murder and one count of assault.

[2] I heard sentencing submissions on February 11, 2019.

[3] These are my reasons for sentencing.

Circumstances of the offences

[4] I found Mr. Foster guilty of assaulting and attempting to murder his former wife, Barbara Foster, in a decision reported as R. v. Foster, 2018 ONSC 6699.

[5] Mr. Foster and Ms. Foster were married in 1998. They have a 19 year old son.

[6] There was a history of some verbal and physical abuse by Mr. Foster toward Ms. Foster. In early September 2016, when the couple were going to bed one night, Mr. Foster punched Ms. Foster with his closed fist, leaving at least one large bruise on her body.

[7] The next day, Ms. Foster moved in with a co-worker. In the next couple of months, Mr. Foster called Ms. Foster repeatedly. He also showed up at her workplace on a number of occasions.

[8] On two occasions, Ms. Foster saw Mr. Foster outside the house where she was staying, despite the fact that she had tried to keep her location secret. On one of those occasions, Mr. Foster reversed his car into Ms. Foster's car before leaving. On the other occasion, Mr. Foster followed Ms. Foster in his car as she was driving to meet friends.

[9] On November 7 and 8, 2016, Mr. Foster texted Ms. Foster, implying that she was having sexual relations with other men. He also posted a photo of Ms. Foster and a message on Facebook, making similar insinuations.

[10] On the evening of November 8, 2016, Ms. Foster spoke to Mr. Foster on the phone, and told him that their relationship was over.

[11] On the morning of November 9, 2016, when she arrived at work, Ms. Foster saw Mr. Foster waiting in his car in the parking lot of her workplace. After Ms. Foster made it clear to Mr. Foster that she did not want to speak to him, he rammed her car with his car at least twice, pushing her car onto the sidewalk.

[12] Ms. Foster then tried to get away on foot, but Mr. Foster chased her with a kitchen knife, and stabbed her multiple times. Ultimately, Mr. Foster tried to cut Ms. Foster's throat while saying that he wanted to kill her. Fortunately, Ms. Foster was able to defend herself by grabbing the blade of the knife with her right hand and by pleading with Mr. Foster to think of their son.

[13] Mr. Foster then fled the scene in Ms. Foster's car.

Impact on the victim

[14] Ms. Foster testified at trial and provided a victim impact statement.

[15] The physical injuries Ms. Foster suffered as a result of the attempted murder are very significant, and include the following:

a. 6 stab wounds to her legs; b. 1 stab wound to her back; c. 1 stab wound on her chin that was 5 centimeters long and required 10 stitches; d. 1 stab wound to her neck that required 3 stitches; e. Extensive cuts to her right hand and fingers that required over 60 stitches; and f. A broken nose (caused by one of the car collisions).

[16] Following the events of November 9, 2016, Ms. Foster required extensive medical intervention. She spent time as an in-patient in the hospital and at a rehabilitation facility, followed by several months of out-patient physiotherapy. She also had surgery to repair nerve and tendon damage to her right hand, surgery on her nose, and surgery on her right knee. She has some permanent loss of strength and fine motor skills in her right hand.

[17] Besides her physical injuries, Ms. Foster reports that Mr. Foster's attack on her has had a significant emotional impact on her life. She breaks down and cries regularly. She finds herself feeling very fearful, both at home and at work. She has also had to be a support for her son who has experienced the loss of his father. Ms. Foster reports that she is participating in ongoing counseling to deal with Mr. Foster's attempt on her life and the prior years of abuse.

[18] As a result of her injuries, Ms. Foster was off work for over one year. She has had to sell her house because she has been unable to maintain mortgage payments.

[19] In her victim impact statement, Ms. Foster states that she is still afraid of Mr. Foster, and fears that he will find her and harm her once he is released from prison.

Circumstances of the offender

[20] A pre-sentencing report provided to the Court contained some background information about Mr. Foster.

[21] Mr. Foster is almost 48 years old. He was born in Jamaica. He is the oldest of his mother's five children and the oldest of his father's eight children. Mr. Foster's parents were never married.

[22] Mr. Foster was primarily raised by his mother in Jamaica until she moved to Canada in 1982 when he was 11 years old. He then moved in with his father and stepmother.

[23] Mr. Foster completed secondary school in Jamaica.

[24] In 1992, Mr. Foster's mother sponsored him and his maternal siblings to immigrate to Canada.

[25] After arriving in Canada, Mr. Foster completed an automotive mechanic program at a community college in Toronto. Prior to his offence, he had worked as an auto mechanic since at least 2001. At the time of the offence he was employed full time as a mechanic by a car dealership.

[26] As already mentioned, Mr. Foster and Ms. Foster were married in 1998. Prior to this marriage, Mr. Foster had two children from previous relationships. Mr. Foster and Ms. Foster had a son in 2000.

[27] Mr. Foster is a permanent resident of Canada, but he is not a Canadian citizen. The Canadian Border Service Agency has indicated that it intends to deport Mr. Foster to Jamaica due to his convictions once he completes his sentence.

[28] The author of the pre-sentencing report spoke to a number of people involved in Mr. Foster's life.

[29] Mr. Foster is evidently close to his mother. She stated that her son is not a bad person and that he works hard. She indicated that her son was having a hard time at the time of the offence because Ms. Foster was not answering Mr. Foster's calls and was refusing to speak to him.

[30] Mr. Foster's previous employer reported that Mr. Foster was well liked by his former colleagues and that he was a hard worker. He reported that he and other employees were "devastated" when they heard about the incident and that he felt this was out of character.

[31] A longtime friend of Mr. Foster's indicated that, prior to the offence, Mr. Foster was having a hard time pulling himself together because of his recent marriage breakup.

[32] At the sentencing hearing, I was also provided with a letter written by one of Mr. Foster's former colleagues in which she states that he was hardworking, friendly and compassionate, and that he was very well liked by his employer and co-workers.

[33] At the conclusion of the sentencing hearing, when I gave Mr. Foster an opportunity to speak, he said that he does not have a specific recollection of what happened on November 9, 2016. However, he said that he was ashamed about what he did and knows that he did something terrible. He recognizes that he has ruined his own life and harmed Ms. Foster's life. If he could, he would apologize and take back everything he did.

[34] Mr. Foster has a prior criminal record for a number of offences going back to 1995. The most recent offences were assault with a weapon in 2004 and criminal harassment in 2014. Mr. Foster received a suspended sentence with a period of probation for both of these offences.

Positions of the Crown and the defence

[35] The Crown seeks a sentence of 11 years less credit for time served, a DNA order and a 10 year weapons prohibition order pursuant to section 109 of the Criminal Code.

[36] The defence suggests that a sentence in the range of 5 to 7 years less credit for time served and additional credit for the conditions of Mr. Foster's incarceration would be appropriate.

Sentencing principles

[37] As set out in section 719 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. This is achieved by imposing "just sanctions" that reflect one or more of the traditional sentencing objectives, which include denunciation, general and specific deterrence, separation of offenders from society where necessary, rehabilitation and reparation for the harm done to the victim and society.

[38] As noted by the Court of Appeal in R. v. Hamilton, at para. 87, sentencing is a very human process. The emphasis a court places on each objective will vary according to the nature of the crime and the circumstances of the offender.

[39] The Criminal Code also lists a number of principles to guide sentencing judges.

[40] The fundamental principle of sentencing is the proportionality requirement, which is set out in s. 718.1: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The "gravity of the offence" refers to the seriousness of the offence as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence: Hamilton, at para 90. The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the substantive elements of the offence -- especially the fault component -- and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime: Hamilton, at para 91.

[41] The parity principle set out in section 718.2(b) of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As noted in R. v. Mann, 2010 ONCA 342 at para. 17, the parity principle is not to be applied in an absolute fashion; given the highly individualized sentencing process, sentences imposed for offences of the same type will not always be identical.

[42] The restraint principle is reflected in both ss. 718.2(d) and (e). In Hamilton, at paras. 95-96, the Court emphasized that the restraint principle is of paramount importance where incarceration is a potential disposition.

Aggravating and mitigating factors

[43] In determining the appropriate sentence, I must consider aggravating and mitigating factors.

[44] I find that the aggravating factors in this case are as follows:

a. Section 718.2(1)(ii) of the Criminal Code deems that abuse of a spouse is an aggravating factor. In this case, Mr. Foster attempted to murder his wife. He did so in a context in which he had assaulted her on at least one prior occasion. b. The attack on Ms. Foster was very violent and sustained. Mr. Foster waited for Ms. Foster at her workplace. He forced her out of her car by ramming her car onto the sidewalk. He chased her with a knife, trying to prevent her from getting up at least twice when she fell. He stabbed her multiple times, ultimately trying to cut her throat while telling her he was going to kill her. He then fled the scene. c. The physical, emotional and financial impact on Ms. Foster has been very significant. The injuries she sustained required extensive treatment, and have left her with some permanent damage to one of her hands. She remains scarred emotionally, requiring ongoing counseling and support from her friends and family. She was unable to work for over a year and has lost her home. She has become fearful at home and at work, and still fears that Mr. Foster will try to harm her once he is released from prison. d. Mr. Foster has a prior record. While his record is not extensive nor did his convictions carry significant sentences, he has previously been found guilty of crimes involving violence.

[45] I find that the mitigating factors are as follows:

a. While Mr. Foster did not plead guilty to attempted murder, he was prepared to plead guilty to aggravated assault and he did plead guilty to assaulting Ms. Foster in September 2016. b. At the time of his offence, Mr. Foster worked full time as a mechanic. He was viewed by his employer and colleagues as hardworking, friendly and helpful. c. At the conclusion of his sentence, Mr. Foster faces deportation. This means that, besides the time he will serve for his offences, another consequence of the convictions is that he will have to leave the country he has lived in since 1992. d. Mr. Foster expressed some remorse for what he has done. e. Mr. Foster has been in detention since his arrest on November 9, 2016. While in custody, Mr. Foster has received regular visits from his mother and friends, which suggests that he has maintained strong ties to his mother and relationships with some friends. He has also participated in a number of programs, including counseling provided by a Salvation Army Chaplain.

Fit sentence for attempted murder

[46] Pursuant to section 239(1) of the Criminal Code, the maximum sentence for attempted murder is life. As held in R. v. Mann, 2016 ONSC 2675, at para. 67, life sentences "are most typically imposed where the circumstances of the offence include unusual features of brutality or cruelty, or where the sentence is part of a pattern of violence". While Mr. Foster's offence was very violent, it does not raise to this level.

[47] In R. v. Denkers, at paras. 15-16, the Court of Appeal for Ontario emphasized the importance of general and specific deterrence in cases of attempted murder at the end of a domestic relationship:

15 The determination of what is a fit sentence in this case must be made in the context of the circumstances outlined above. This victim, and others like her, are entitled to break off romantic relationships. When they do so they are entitled to live their lives normally and safely. They are entitled to live their lives free of harassment by and fear of their former lovers. The law must do what it can to protect persons in those circumstances. In this case its order that the appellant not have contact with the victim failed to provide that protection.

16 It follows that the principles of general and specific deterrence must be the over-riding considerations in the determination of a fit sentence in this case. Those principles demand a very heavy sentence to act as a general deterrent to other persons who cannot abide their rejection by a person whom they love. The sentence must act as a specific deterrent to this appellant who was not deterred by the victim's requests that he leave her alone nor by a court order requiring him to do so.

[48] In R. v. Boucher, at para. 24, the Court of Appeal also recognized the long lasting emotional impact on the victim of an attempted murder in the context of a domestic relationship:

Further, where an attempted murder is committed in the context of a domestic relationship, the likelihood of lasting psychological trauma to the victim arising from the irrational and obsessive nature of the misconduct is significant and, where present, justifies the imposition of a substantial penalty separate and apart from the issue of protection…

[49] In my view, the sentence of 5 to 7 years proposed by Mr. Foster's lawyer does not reflect the gravity of the circumstances of Mr. Foster's offence.

[50] In proposing this range of sentence, the defence suggests that the appropriate starting point for an offence of this nature is 8 years, and that the sentence should be reduced to account for some of Mr. Foster's mitigating circumstances, including the fact that he faces deportation at the end of his sentence.

[51] However, from my review of the cases provided by the Crown and the defence, there appear to be very few circumstances in which the courts have imposed sentences below 8 years in cases involving an attempted murder in the context of a domestic relationship. In my view, the cases provided by defence counsel where sentences under 8 years were imposed are generally distinguishable:

a. In Boucher, the Court of Appeal stated that a sentence imposed by the trial judge of 2 years less a day should have been 6 years in circumstances in which the accused was found guilty of attempting to murder his wife by ramming her car. In that case, the wife did not suffer any physical injuries and there was evidence that her husband was intoxicated at the time. In addition, while stating that 6 years would be a fit sentence, the Court ultimately did not increase the sentence imposed by the trial judge, but only increased the period of probation because the accused had already been released and commenced his probation by the time of the appeal. b. In R. v. P.K., this Court imposed a sentence of 3 years and 3 months in addition to 43 months of credit for pre-trial custody. In that case, the accused had tried to kill his former spouse with a hammer. He pled guilty to attempted murder and there was evidence that he had psychiatric issues at the time he committed the offence. c. In R. v. Bulat, 2013 ONSC 4513, this Court imposed a six year sentence for an attempted murder in a domestic context. In that case, the accused was 74 years old and in poor health, which seems to have affected the length of the sentence. In addition, the accused had no prior record and there was no history of domestic violence.

[52] The 11 year sentence proposed by the Crown seems to be more consistent with the range of sentences generally imposed for convictions of attempted murder in domestic situations similar to this one. For example:

a. In R. v. Russo, this Court imposed a sentence of 10 years, in circumstances where the accused struck his wife in the face multiple times with an axe. In imposing this sentence, the judge noted that the accused was 57 years old and had no previous record, he pleaded guilty, he had never previously been violent toward his wife, he suffered from depression and was under the influence of disinhibiting medication at the time of the offence. b. In R. v. Vienneau, 2015 ONCA 898, the Court of Appeal upheld a sentence of 11 years, where the accused broke into his ex-girlfriend's home, and, after a heated argument, swung a knife at her neck causing injuries to her trachea and voice box. In upholding the sentence, the Court found that the 11 year sentence fell within the appropriate range for attempted murder in that context, which the Court described as "near the mid-point of the range of sentences for the offence of attempted murder in a domestic context". c. In R. v. Hoare, 2016 ONCJ 36, a judge of the Ontario Court of Justice identified the range for attempted murder in the context of a domestic relationship as between 8 and 11 years. In that case, the judge imposed a sentence of 11 years based in part on the brutality of the attack and the preparation that went into the attack, while recognizing that this was a first offence and there was no history of violence in the relationship. d. At the higher end of the range, in Denkers, the Court of Appeal upheld a sentence of 15 years, where the accused had previously been ordered to stay away from his ex-girlfriend. He nevertheless broke into her home, sexually assaulted her, stabbed her abdomen three times and slit her throat. The Court of Appeal, at para. 13, noted that "this was as a grave a case of attempted murder as one can imagine".

[53] Ultimately, I find that a sentence of 10 years is a fit sentence for Mr. Foster in the circumstances of this case. Mr. Foster's attack on Ms. Foster was very violent and will leave her with long lasting physical and emotional consequences. This was not the first time Mr. Foster was violent toward Ms. Foster. He had hit her at least once before in September 2016, which led her to leave their home. When she then made it clear that she wanted to end their marriage, Mr. Foster tried to kill his wife rather than accepting the end of the relationship. There is no evidence that Mr. Foster was intoxicated or that he was experiencing mental health problems at the time. He simply could not accept that Ms. Foster wanted to end their marriage. In Denkers, at para. 16, as referred to above, the Court of Appeal stated that a heavy sentence is warranted in these types of circumstances "to act as a general deterrent to other persons who cannot abide their rejection by a person whom they love".

[54] Given these circumstances, the 11 year sentence requested by the Crown is reasonable and consistent with similar cases. But I am reducing the sentence to 10 years to take account of Mr. Foster's immigration status, and that the consequences for him of this conviction will include deportation to Jamaica at the end of his sentence.

Fit sentence for assault

[55] The Crown proposes that a sentence of 60 to 90 days for the conviction of assault to be served concurrently with the conviction for attempted murder is appropriate in this case.

[56] The defence agrees that a sentence of 60 days to be served concurrently is appropriate.

[57] I agree to this proposal. Accordingly, Mr. Foster is sentence to 60 days for the assault conviction to be served concurrently with the 10 year sentence for attempted murder.

Credit for time served

[58] Mr. Foster has been in pre-sentence custody since he was arrested on November 9, 2016, which is 849 days. He is entitled to credit at a ratio of 1:1.5, which is equivalent to 1,274 days.

[59] In addition, Mr. Foster's lawyer argues that, in accordance with the Court of Appeal's decision in R. v. Duncan, 2016 ONCA 754, Mr. Foster should receive additional credit for the harsh conditions of his pre-sentence custody. In Duncan, at para. 6, the Court of Appeal held that additional credit for pre-sentence conditions is appropriate in the following circumstances:

We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

[60] In this case, Mr. Foster has been held at the Toronto East Detention Centre. There were 175 full day or partial day lockdowns while Mr. Foster was held in custody.

[61] For the purposes of the sentencing hearing, Mr. Foster provided an affidavit in which he discussed the impact the lockdowns had on him. He stated that, during lockdowns, inmates are confined to their cells or are otherwise restricted in their movements in the institution. Family visits and access to programs, telephones and showers are curtailed during lockdowns. Mr. Foster said he was particularly affected when visits with his mother were cancelled due to lockdowns.

[62] The defence requests one third to one quarter additional credits due to the conditions while Mr. Foster awaited trial. The Crown does not object that this is an appropriate case for enhanced credit.

[63] I find that this is an appropriate case for additional credit. I am crediting Mr. Foster with an additional 186 days, for a total of 1,460 days (four years), which means that Mr. Foster has a remaining sentence of six years to serve.

Conclusion

[64] In conclusion, I sentence Mr. Foster to a global sentence of 10 years, reduced to 6 years to reflect the credit for time served.

[65] In addition, I make the following ancillary orders:

a. Pursuant to section 109 of the Criminal Code, I order that Mr. Foster is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance prohibited for 10 years; and b. I order that a DNA sample be given pursuant to section 487.051(3) of the Criminal Code.

FAVREAU J.

RELEASED: March 7, 2019