R. v. Hoare, 2016 ONCJ 36

ONTARIO COURT OF JUSTICE CITATION: R. v. Hoare , 2016 ONCJ 36 DATE: January 13, 2016 COURT FILE No.: Ottawa 14-RM2311 BETWEEN: HER MAJESTY THE QUEEN — AND — Christopher HOARE Before Mr. Justice Wadden Sentence Submissions Heard on September 4 & December 21, 2015 Decision on Sentence released on January 13, 2016 Michael Boyce ...................................................................................... Counsel for the Crown Eric Grainger ......................................................................................... Counsel for Mr.

Hoare DECISION ON SENTENCE WADDEN J.: [ 1 ] Christopher Hoare was convicted after trial of the attempted murder of his wife, Kirsten Cote. Mr. Hoare was a successful professional who had become addicted to opiates, accumulated overwhelming income tax liabilities and had stopped paying the family’s bills, all of which he kept hidden from his wife. On April 2, 2014, to prevent her from learning of their financial problems he lured her into the garage of the family home and repeatedly struck her with a baseball bat.

He attempted to suffocate her and struggled with her until a neighbour intervened [1] . [ 2 ] The Crown seeks a sentence of 15 years jail, less presentence custody, with ancillary orders for a weapons prohibition for life, a DNA databank order and a prohibition on communication with Ms. Cote or the couple’s children, pursuant to s. 743.21. Mr. Grainger, for the defence, suggests that a sentence of 7 years less presentence custody would be appropriate. [ 3 ] The facts of the offence are disturbing and show a cold-heartness and brutality on the part of Mr. Hoare. [ 4 ] Mr.

Hoare was a successful real estate agent living with his wife and young family in suburban Ottawa. The family had five children ranging in age from one to twelve. Ms. Cote described their relationship as perfect. Unbeknownst to his wife, Mr. Hoare had financial difficulties due to unpaid taxes accumulated over a number of years. He had also become addicted to OxyContin and speed. He controlled the family finances and did everything in his power to keep his wife from becoming aware of their problems.

By the beginning of April, 2014 the family bank account was overdrawn, the credit cards were past due and the utilities were about to be cut off. Mr. Hoare hid all this from his wife, lying to her by telling her that he was expecting a large cheque from his work. [ 5 ] On the morning of April 2, 2014, he knew that his wife was about to discover his deceit. In order to prevent her from leaving the home to go shopping, he lured her into the garage and tricked her into closing her eyes, turning her back to him and occupying her hands. He then attacked her in a manner that demonstrated a clear intent to murder her.

As she stood before him, defenceless, he picked up a baseball bat and slammed it against the back of her skull. He hit her again as she fell to the ground. When those blows didn’t kill

her he lay on her with his crushing weight and attempted to suffocate her by stuffing a cloth in her mouth. She broke free but he grabbedher and dragged her back. She fought her way out to the driveway and clung to the tire of their minivan as he grabbed her and tried topull her back into the garage. He only stopped the attack when a neighbour intervened. [6] Ms. Cote was left lying on the driveway. She was suffering from lacerations and blood loss, as well as bruising and abrasions. Shesuffered concussion symptoms that persist to the present day.

She has headaches and problems with her vision and balance, and can nolonger drive. [7] When the police arrived Mr. Hoare told them that Ms. Cote had been about to harm their child and he was stopping her. He lateradmitted this was a lie. [8] At trial, Mr. Hoare was found guilty of 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 of the Code and Attempted Suffocation contrary to s. 246(

a) of the Code. Victim Impact [9] At the sentence hearing, Victim Impact Statements were filed by Kirsten Cote, her parents and her sister. Kirsten Cote has ongoinghealth issues and is diagnosed with post concussion syndrome. She continues to have dizziness, blurred vision, loss of balance and otherdebilitating symptoms that have left her unable to drive and requiring the assistance of a walker. The financial consequences have lefther and her children broke. They have gone from a comfortable middle-class life to poverty. Ms. Cote has lost the family home andvehicles.

She is unable to work and now relies on social assistance, the food bank and charity. She is unable to afford activities for herchildren. She suffers from Post Traumatic Stress Disorder and lives every day with fear of Mr. Hoare. She states that “We as a familywill live with the scars of what Chistopher did to us for the rest of our lives - Christopher has stolen my children’s innocence, myinnocence and replaced it with fear and sorrow. … He has hurt me in every way he can hurt me – I am maimed. I am terrified.

I ampoor.” Her sister and parents spoke of the impact throughout the family, especially on her retired parents who are now taking care ofMs. Cote and the children. [10] Ms. Cote’s neurologist, Dr. Lelli, confirmed the diagnosis of post-concussion syndrome and post-traumatic stress disorder, withsymptoms of headaches, concentration issues and visual disturbances. He has seen little improvement in her condition since the attack. Background of Mr. Hoare [11] Mr. Hoare is 46 years old and has no criminal record. Before the day of the attack he was a well-respected real estate agent inOttawa.

He was a past president of the realtors’ association and regarded as one of the best agents in the city. He had been married toMs. Cote since December 2000 and they lived in a comfortable home in Orleans, in suburban Ottawa. He and Ms. Cote had five youngchildren and Mr. Hoare was described as a caring and involved father who adjusted his work hours so he could spend a substantialamount of time with his children. He appeared to provide well for the family.

They took vacations, including travel to Disney World,and the children were involved in numerous activities. [12] Numerous letters of support were filed on behalf of Mr. Hoare. They attest to his character and support in the community. Hisbrother, father and extended family speak of the support Mr. Hoare provided to his elderly parents, both of whom are now seriously ill. His former real estate colleagues speak of his professional reputation and his devotion to his family. All express shock and disbelief thathe committed these acts. Many speak of Mr. Hoare’s remorse. [13] In court, Mr.

Hoare expressed remorse for his actions, saying that he is horrified by what he did. He seems to recognize the ruinthat he has caused to his children, his wife and her parents. Psychiatric Evidence about Mr. Hoare [14] Dr. R. Kunjukrishnan, a forensic psychiatrist, testified on behalf of Mr. Hoare. He found that Mr. Hoare does not suffer from anymajor psychiatric illness but admitted to a history of substance abuse of speed and opiates, on a daily basis, in the two or three years priorto the offence. Dr.

Kunjukrishan testified that the combination of opiates and speed significantly increase the risk of violence and Mr.Hoare’s drug consumption likely influenced his attack on his wife. [15] Dr. Kunjukrishnan is of the view that Mr. Hoare presents a low risk for reoffending, based largely on the lack of a history of priorviolence. He raises concerns about Mr. Hoare’s insight into the connection between the drug abuse and the offence and recommendscounselling. He notes that a relapse of substance abuse would increase Mr. Hoare’s risk of future violence. Application of R. v.

Kienapple [16] Before imposing sentence I have to decide on which counts convictions will be entered. The counts of Aggravated Assault andAssault with a Weapon are subsumed in the facts of Attempted Murder and both Crown and defence are in agreement that those chargesshould be stayed pursuant to the principle in R. v. Kienapple. [17] The Kienapple principle was succinctly stated by Doherty J.A. in R v.

R.K. (2005) (ON CA), 199 OAC 323,as follows, at para. 28: The principle that emerged from Kienapple provided that where the same transaction gives rise to two or more offenses withsubstantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted ofonly the most serious of the offences […]. The other charges should be stayed […] [18] Counsel for Mr. Hoare submits that the count under s. 246(

a) should also be stayed pursuant to Kienapple. The Crown disagreesand seeks to have a conviction entered on this count, although he concedes the sentence should run concurrent to the attempted murder.

[19] The count under s. 246(

a) states that Mr. Hoare attempted to suffocate Ms. Cote “with intent to enable himself to commit anindictable offence.” [20] Counsel for the Crown relies on R. v. Hill 2010 ONSC 5150 for the principle that, as stated in para. 35, “The wording of s.246(

a) seems to discourage the application of the Kienapple principle. Parliament has specifically chosen to make choking with theintent to commit an indictable offence a separate offence from the commission of the indictable offence.” [21] A similar finding was made in R v Ricketts 2012 ONSC 6723, at para. 2, where Croll J. stated that “… choking to enable anassault is an additional element beyond the assault.” [22] In Mr. Hoare’s case, the attempted suffocation was part of the attempted murder of his wife, which was a lengthy ongoing attack. However, the attempted murder did not include only the suffocation.

The violence began before the suffocation, and continuedafterward. The attempted suffocation was done to overcome her resistance and enable him to continue his attack. In the circumstancesof this case, the suffocation was part of the attempt to kill Ms. Cote but forms a separate offence from the attempted murder. It was done,as the

section states, with the intent to assist him to commit another offence, namely attempt murder. The

section contemplates thatanother serious offence would be committed along with the s. 246(

a) offence. It therefore follows that it is not intended that this countwould be subject to a stay on the Kienapple principle. [23] Convictions will be entered on the count of Attempted Suffocation pursuant to s. 246(a), in addition to Attempted Murderpursuant to s. 239. The counts of Assault with a Weapon and Aggravated Assault will be stayed pursuant to R. v. Kienapple. Relevant Law [24] The factors to consider on imposing sentence are set out in s. 718 to 718.3 of the Code.

Section 718.2 states that aggravatingfactors include the fact that the victim is the offender’s spouse. In addition, evidence of adverse impact on the health and financialsituation of the victim is also an aggravating factor.

The sentence imposed should be similar to sentences imposed on similar offendersfor similar offences committed in similar circumstances. [25] A number of authorities have been cited to provide guidance on the appropriate sentence for attempted murder committed in thecontext of a domestic relationship. [26] There are a number of decisions from the Ontario Court of Appeal that imposed a sentence in the range of 14-16 years. In R. v.Denkers (1994) (ON CA), 69 O.A.C. 391, the sentence was 15 years for a youthful offender who stabbed hisgirlfriend three times, inflicting life-threatening injuries on her.

The attack had been preceded by terrorizing conduct by him and he wasunder a restraining order prohibiting him from contacting her. In R v. Tan (2008) 2008 ONCA 574 , 268 O.A.C. 385 the Courtheld that a 15-year sentence was justified in circumstances where the victim was kidnapped, stabbed and left for dead. In R. v. Stubbs2013 ONCA 514 the Court of Appeal upheld a sentence of 16 years for attempted murder where the offender shot his ex-girlfriend in thehead. He had a criminal record and an extensive history of violence against the same woman.

The Court held, at para. 148, that the“sentence of 16 years for attempted murder falls within the range of sentences established by this Court for attempted murder committedin the context of a domestic relationship.” In R. v. K.G. 2010 ONCA 177 the Court upheld a 14 year sentence for attempted murder incircumstances that were described as “stark horror”, where the injuries were extensive and required numerous surgeries.

In commentingon the 14 year sentence imposed, the Court held that “[w]hile the sentence may have been at the high end of the range it reflects themoral culpability of the appellant.” [27] Other appellate decisions have imposed sentences in the eight to twelve year range. In R. v. Spurway (1996) (ON CA), 94 O.A.C. 58 the Court of Appeal imposed 11 years for an attempted murder in a domestic context. In reducing the sentencethe Court of Appeal stated that a 15 year sentence was a substantial departure from an appropriate sentence.

The Court stated that “thesentence should not be so crushing as to remove any hope on the part of the offender.” In R. v. Edwards (1996) (ONCA), 88 O.A.C. 217 the Court of Appeal upheld a sentence of 11 years for an offender who shot his victim three times in the head andonce in the chest. In the same case it upheld a 12-year sentence on an offender who shot his wife in the neck, leaving her paralyzed. InR. v.

Botelho 2010 ONCA 297 the Court held that a sentence of seven years was manifestly unfit and that eight and a half years was thelowest sentence that could be imposed for a domestic attempted murder that resulted in the victim being stabbed numerous times. Thatoffender had a criminal record and a history of domestic violence toward the victim and was on probation for domestic assault, and didnot accept any responsibility for his actions. In R. v.

Campbell (2003) (ON CA), 170 OAC 282 the Court of Appealupheld a 9 year sentence on an attempted murder conviction in a domestic context, stating that “The sentence is within the appropriaterange for attempt murder in a domestic situation. This court has repeatedly stated that the principle of deterrence is of paramountimportance in determining the appropriate sentence for crimes of domestic violence.” [28] A sentence of six years was imposed in R v. Boucher (2004) (ON CA), 187 O.A.C. 378, a case where therewere no injuries to the victim. [29] A case in which the maximum life sentence was imposed was R. v.

Huff 2012 ONCA 86, which was an attempted murder with abaseball bat against a former partner. The crime “consisted of several skull-shattering blows inflicted by a baseball bat wielding assailanton an unarmed victim. It was calculated and it was callous. It constituted a significant breach of trust. The effect on the victim was atonce significant and enduring.” (para. 17) The Court noted that the sentencing judge was correct in regarding the principles ofdenunciation and deterrence as predominant. Mr.

Huff was a career criminal with extensive violence on his record. [30] In addition to the appellate cases I was provided with a number of trial decisions, in which there is a wide range of sentences forattempted murder in a domestic context. In R v. Guerin [1999] O.J. No. 788 the range of sentence for a shooting was held to be 6 to 8years. In R. v. K.P. [2006] O.J. No. 1485 (S.C.J.) a 7-year sentence was imposed for an attack on a former girlfriend and her sister with ahammer and a knife, resulting in serious injuries. In R. v.

Ryan 2009 ONCJ 169 the offender, who had a long criminal record, wasconvicted of attempted murder of his girlfriend by attempting to crash his car head-on into hers. The victim was not physically injured. Mr. Ryan was sentenced to 8 years. In R. v. Xie 2015 ONCJ 80 a sentence of 7 years was imposed for the stabbing of a formergirlfriend. The victim’s injuries were not life-threatening. Mr. Xie had no criminal record but there was significant ongoing harassment

preceding the attack. In R. v. Adamson 2013 ONSC 2365 a 21 year old offender with no criminal record was sentenced to 13 years for the attempted murder of his ex-girlfriend by trying to slit her throat. [ 31 ] In R. v. Ruso [2007] O.J. No. 2800 (S.C.J.) McMahon J. sentenced a 57 year old man with no prior criminal record and an excellent work record to ten years for attempted murder. Mr. Ruso had struck his wife with an axe and then a hammer and left her for dead in the garage of the home. She suffered extensive permanent and disfiguring injuries.

Among the aggravating factors cited by the sentencing judge were the domestic nature of the violence, the brutality of the attack, prior threats made, use of more than one weapon, the extent of the injuries and the emotional impact on the victim. In mitigation, the sentencing judge noted that the offender had pleaded guilty, was diagnosed with severe depression and was on prescribed medication that acted as a disinhibitor. [ 32 ] In considering Court of Appeal decisions in which sentences of 14-16 years were imposed or upheld I have to consider the degree of similarity to the facts in the case before me.

The facts in Tan were of particular cruelty, brutality, terror and horror. The attack lasted for hours, with the victim locked in the trunk of the offender’s car. She was stabbed, wrapped in a tarp and left for dead in a remote area. The facts in K.G. are similarly horrific - appropriately described as stark horror - and the sentence imposed was 14 years, which was noted to be at the high end of the range. These cases involved even more serious injury than in the case before me. Although Mr.

Hoare committed a brutal and persistent attack on his wife with devastating consequences, the entire attack occurred over a matter of minutes and Mr. Hoare stopped when confronted by his neighbour. The injuries, although serious, were not life-threatening. [ 33 ] The maximum sentence for attempted murder is life, which would be imposed for the worst offender committing the worst offence, as, for example, in R v. Huff .

For an offender with no criminal record, a sentence of 15 years would appear to be at the high end of the range of available sentences. [ 34 ] One trial decision that bears similarity to the facts this case is R. v. Ruso in which McMahon J. imposed a sentence of ten years. The background of that offender was similar to Mr. Hoare in many ways but there were mitigating factors that are not present in this case, such as he pleaded guilty and had psychiatric issues that accounted for some of his actions. The influence of prescription medication on Mr.

Ruso is different from that of the voluntary consumption of illicit drugs by Mr. Hoare. Aggravating and Mitigating Factors [ 35 ] In determining the appropriate sentence for Mr. Hoare I have to consider the aggravating and mitigating factors of this case. [ 36 ] The aggravating factors are the following: • This was a planned and deliberate attack. Mr. Hoare directed his wife to go to the garage with the intention of inflicting fatal injuries on her.

He took steps to place her in a position where he could strike her from behind, without warning, and while her hands were occupied and she was unable to defend herself. • A weapon was used. Mr. Hoare chose a baseball bat, a weapon well known to be able to inflict bone shattering injuries. He struck Ms. Cote with full force on the back of her head. • The attack was persistent. When Ms. Cote was not killed by the initial blows with the bat, or even rendered unconscious, Mr. Hoare tried to suffocate her with a cloth and with his body.

He pursued her as she tried to flee. • This occurred in a domestic context and was a breach of the absolute trust Ms. Cote placed in Mr. Hoare. There were five children in the family, and the youngest child was home at the time of the attack, although not a witness to it. The other children, although not present, were witnesses after the fact to the serious injuries inflicted on Ms. Cote by their father. The victim impact statements speak volumes about the effect on the children of having to face this familial violence. • The physical, emotional and psychological impact on Ms. Cote has been devastating.

Although her injuries were not life- threatening, she has been left with serious ongoing injuries that have left her unable to provide for, or even care for, her children and she has been driven into poverty. The comfortable lives of Ms. Cote, her parents and her children have been ruined. • Mr. Hoare’s violence was aggravated by his illicit drug consumption, according to the opinion of Dr. Kunjukrishnan. [ 37 ] The mitigating factors are: • Mr. Hoare has no criminal record. • Prior to the offence he was a successful and well respected professional with an excellent employment history.

Numerous letters on the sentence hearing show that he continues to have the support of friends and family in the community. • There is no history of violence in the relationship. • Although he has denied attempting to murder Ms. Cote, Mr. Hoare has accepted responsibility for his actions in attacking her with the baseball bat. • Mr. Hoare has acknowledged the harm he has caused and has expressed remorse. Sentence [ 38 ] The facts of this crime and the mitigating factors in this case bring Mr. Hoare below the high end of the range as sought by the Crown.

He was of previously good character and as his community support demonstrates he has prospects for rehabilitation. His sentence must not be so harsh that it is crushing of any hope. However, the impact of his crime is severe . He attempted to kill his wife for entirely selfish reasons, to cover up problems that were of his own making. He committed a crime that that was devastating to his family and shocking to the community. A sentence of seven years as suggested by his counsel would fall below the appropriate range

and would not adequately address the denunciation and deterrence that is necessary in this case. [ 39 ] The appropriate sentence for Mr. Hoare on the count of attempt murder is eleven years incarceration. [ 40 ] Mr. Hoare has been in custody since his arrest on April 2, 2014, a total of 650 days. Applying credit at 1.5 to 1, in accordance with the direction of the Supreme Court in R. v. Summers , 2014 SCC 26 , Mr. Hoare will receive credit for 975 days of custody, or two years and eight months. The record will reflect presentence custody of the equivalent of two years, eight months.

The remainder of eight years, four months will be imposed as of today. [ 41 ] There will be a sentence of two years concurrent on the offence of Attempted Suffocation under s. 246(a). [ 42 ] There will be an order pursuant to s. 743.21 prohibiting Mr. Hoare from having any contact, directly or indirectly, with Ms. Cote, except through counsel for the purpose of dealing with family law proceedings. He will be prohibited from having any contact with their children for the duration of his sentence. There will be no exceptions.

He has ruined the lives of this family and relinquished his right to have contact with them. [ 43 ] A sample of Mr. Hoare’s DNA will be placed on the National DNA Databank. [ 44 ] Mr. Hoare will be prohibited for the possession of firearms, ammunition or explosive substances for life. [58] In conclusion, • On the count of Attempted Murder, contrary to s. 239 of the Code , the sentence is 11 years jail, less presentence custody calculated at 2 years, 8 months. The remaining sentence as of today is 8 years, 4 months. • On the count of Attempted Suffocation contrary to s. 246(

a) of the Code, the sentence is two years concurrent. • The counts of Aggravated Assault contrary to s. 268 and Assault with a Weapon contrary to s. 267(

a) of the Code are stayed. Released: January 13, 2016 “Original Signed by Justice Wadden”