



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Foster, 2021 ONCA 304

DATE: 20210507

DOCKET: C67370

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Courtney Foster

Appellant

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 wifes workplace just to talk
    to her, and not with the intent of murdering her. He says he did not say Im
    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 appellants trial counsel in her careful reasons.

[6]

The Crowns evidence included the testimony of the
    appellants 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 Im going to fucking kill you.

[7]

The trial judges 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 appellants 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. Ohlers
    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.


