Court File and Parties

Court File No.: CR-21-30000637-0000 Date: 2022-02-18 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Corey Cunningham

Counsel: Josh Levy, for the Crown Elliot Willschick, for Corey Cunningham

Heard: December 9, 13, 14, 16, 2021; January 24, 2022

Before: R.F. Goldstein J.

[1] Corey Cunningham is charged with one count of attempted murder and one count of armed robbery. The Crown alleges that on October 11, 2019 Mr. Cunningham stabbed Christina Elgin in an attempt to kill her, and then robbed her of money and her cell phone.

Background

[2] Mr. Cunningham, the accused, and Ms. Elgin, the complainant, commenced an intimate relationship in the summer of 2019. In her evidence in chief Ms. Elgin described the relationship as “on and off”. Ms. Elgin testified that she met Mr. Cunningham on Facebook. They got to know each other over social media. They met around Canada Day. They began an exclusive intimate relationship at some point in July. They visited each other at their houses. Mr. Cunningham would usually call or text or message on Facebook prior to coming over. He told her that he was not in another relationship. He also told her that he did not have children. In August they broke up over the issue of whether they could “like” an ex-partner on Facebook. Sometime in August, Ms. Elgin discovered she might be pregnant. She informed Mr. Cunningham. She took a pregnancy test. She testified that she was, in fact, pregnant and that she confirmed it with Mr. Cunningham. They discussed whether she should have an abortion. In fact, they had several conversations about it.

[3] Ms. Elgin testified that Mr. Cunningham wanted her to terminate the pregnancy. The relationship was up and down. At one point she told him that she had had a miscarriage in order to get him to leave her alone. She found the whole relationship very confusing. Ms. Elgin testified that they did break up at the end of September and into October 2019. They discussed co-parenting. Mr. Cunningham seemed excited to be having a child. At the time of the stabbing on October 11, 2019 Ms. Elgin had not seen Mr. Cunningham since September although they continued to communicate by text, Facebook, and phone calls. On October 10, 2019 they spoke on the phone, but Ms. Elgin testified that she ended up hanging up on Mr. Cunningham. In cross-examination, Ms. Elgin testified that Mr. Cunningham came to her house about 3-4 times in July and August, but never showed up unannounced – other than on October 11, 2019. Mostly she would go to his house.

[4] Ms. Elgin testified that during the morning of October 11, 2019 Mr. Cunningham sent her a friendly text message saying something along the lines of “I will always have your back and I will always remember you”. That evening, Mr. Cunningham came to her apartment unannounced. She saw him at the front door and told him to hold on while she fixed her hair. He was wearing a green trench coat that she had never seen. He was also wearing glasses, which she had only seen him wear in a picture. He was also wearing two different shoes. He told her it was a new fashion statement.

[5] Ms. Elgin lived in apartment 411, 4301 Kingston Road. Video surveillance shows Mr. Cunningham walking to Ms. Elgin’s building from Kingston Road. Interior video shows that he was wearing a green coat with the hood up, a right shoe with a white sole, and a left shoe with a black sole. A resident appeared to let him into the secure part of the building, where he took the elevator. He was wearing glasses, and something appeared to cover his face. The elevator camera shows him getting off on the fourth floor, where Ms. Elgin lived.

[6] Ms. Elgin testified that when he got there Mr. Cunningham asked to see her cell phone. He asked her to braid his hair – Ms. Elgin is a hair stylist. At the time she supported herself through the Ontario Works program and by “doing hair” at her apartment or the apartments of her clients. She did not want to do his hair. He paced around the apartment. She testified that she felt that something felt off. Eventually he sat down on the couch. He was still wearing his coat and shoes. She sat on the ground so that he could give her a back massage. He was very rough with her, and she joked that he would be fired. He appeared to be putting on gloves. At that point Ms. Elgin felt like water had been poured over her, and she saw her own blood. She felt him stab her in the back of the neck close to the spine. She decided that she would play dead. She knew from police shows that people can bleed out. She held her breath and did what she called a “body shake” as if she were dead. She fell flat on her own, but she felt him make a target on the back of her shoulder. She counted to 60 twice.

[7] The next thing she heard was the water running. Mr. Cunningham was rummaging through her wallet. He took $100. He also came into the living room where she lay and took money out of her pants pockets. He also took her phone. He kicked her to see if she would move but she did not. She didn’t feel pain at that time, but she tried very hard not to move. Mr. Cunningham then made a phone call and said “yo it’s done” and then “meet me at the same spot”. Through the corner of her eye she could see him looking through the window.

[8] Video surveillance shows Mr. Cunningham exiting the side entrance of the building, rather than taking the elevator. The video shows him walking away from the front of the building to Kingston Road, eventually getting into a vehicle.

[9] Ms. Elgin testified that Mr. Cunningham was in her apartment for about 10 to 15 minutes before he stabbed her.

[10] After Mr. Cunningham left Ms. Elgin counted to 60 three times and then got up. She went to the bathroom. As she described it, there was tissue in her private area. A large clot came out of her vagina. She did not know what it was, but she believed it was a miscarriage, as she did not carry the child to term.

[11] Ms. Elgin testified that she then went to a neighbour’s apartment. The neighbour called 911 at 9:20:25 pm. An ambulance took her to the hospital where she stayed for two weeks. She still has injuries. She can’t feel the back of her neck and the back of her head. A piece of bone lodged onto her spine. She has been told that if she had surgery to remove it there is a 50% chance that she would be paralyzed.

[12] In cross-examination, Ms. Elgin testified that she does not do haircuts. She has one or two comb scissors and tools for interlocking dreads as well as a weaving needle. She made changes to her lifestyle when she learned she was pregnant. She has diabetes and high blood pressure. She talked to her doctor and sought pre-natal care. She stopped drinking. She unsuccessfully tried to quit smoking. She continued to smoke marijuana.

[13] In both examination-in-chief and cross-examination Ms. Elgin testified that Mr. Cunningham told her that wanted her to have an abortion. At other times however, he told her that he wanted her to have the baby and that they would co-parent. In a text message exchange on October 4, 2019 he mentioned naming the child. He also texted about shopping for baby accessories and getting two cribs.

[14] Ms. Elgin testified further in cross-examination that her conversations with Mr. Cunningham were confusing. He wanted her to have an abortion, and then after that they could get married and have children. It made no sense to her. She did not know about other women, but she did tell him he should stop messaging his ex-girlfriends because he had laid down the same rule about her ex-boyfriends. In a message dated October 1, 2019 Ms. Elgin asked Mr. Cunningham if he was having sex with anybody. He responded: “no but if I wanted sex it wouldn’t be with you”. She agreed that at one point she told Mr. Cunningham that she had a miscarriage, although that was untrue.

[15] On October 11, 2019 Ms. Elgin texted Mr. Cunningham at 5:56 pm that she was doing hair. She testified in cross-examination that was untrue – she simply did not want to see him. When he came into her apartment later they started smoking a joint that she had rolled earlier. In cross-examination she disagreed that she was unable to hold her breath or play dead with the level of pain she was experiencing after the stabbing. She disagreed with the suggestion that he had said “what have I done” rather than “yo it’s done” when he made a phone call. Ms. Elgin disagreed that she was not actually pregnant. She could not recall if she mentioned it at the hospital or asked the doctors about her baby.

[16] In cross-examination it was suggested as well to Ms. Elgin that Mr. Cunningham came to her apartment that night and demanded she take a pregnancy test. She disagreed. She also disagreed that she got upset and attacked him and he merely defended himself. She disagreed that he stabbed her during the course of the struggle, and that when it was over she was still standing and talking to him. She also disagreed that she concocted the pregnancy in order to manipulate him into staying in the relationship. She no longer has access to her Facebook account. She accessed it through her phone and Mr. Cunningham had stolen her phone. She could not recall her password.

[17] Dr. Trung Le is a surgeon at Sunnybrook Hospital. He is an otolaryngologist – an ear, nose, and throat specialist. He was qualified as a participant expert witness. He testified that on the night of October 11, 2019 Ms. Elgin was admitted to the hospital. The trauma team treated her. They stabilized her, made sure that her airway was clear, and that she was breathing. Dr. Le performed surgery on October 13, 2019 to check for nerve damage. Prior to surgery he examined her. She had suffered three or four stab wounds. There were two serious wounds to the back of her neck and a superficial wound on the midline and another superficial wound on the back of the neck. Her shoulder was damaged. She could not lift her arm above 90 degrees. The two most serious wounds were the two to the neck. They were about 3 cm deep and about 5-10 cm wide. The wounds were close to vital structures of the neck but there was no major bleeding. The two main stab wounds were 1-2 cm from the carotid artery and jugular vein and the vagus nerve. These are all critical structures for human life. If any had been damaged it would have been life threatening. Dr. Le opined that a sharp instrument made the wounds, but he could go no further. There were signals that raised a suspicion of a boney fragment, but the spine team cleared the spine so it is unclear how important the finding of a boney fragment is.

[18] In cross-examination, Dr. Le testified that he did not know that Ms. Elgin was pregnant and that she had a miscarriage. He would have noted it if he was aware.

[19] Dontae Smith-White testified for the Crown. He and Mr. Cunningham were close friends in 2019. They went to high school together. In the summer of 2019, he and Mr. Cunningham only saw each other occasionally. They were both busy with work. Mr. Smith-White lived in Oshawa. Mr. Cunningham’s baby-mother, Nikisha, also lived in Oshawa. He would see Mr. Cunningham when he came to Oshawa to visit. Mr. Cunningham had two children with Nikisha.

[20] On October 14, 2019 Mr. Smith-White spoke to the police. He testified that he spoke to the police because he wanted to clear his name. According to the police, Mr. Cunningham had told them that Mr. Smith-White was the driver in this matter. The police asked him to come in for questioning. He testified that he wasn’t honest with the police at first but then he rectified the situation. He originally told the police, at Mr. Cunningham’s urging, that he and Mr. Cunningham had been together on the night of the incident. He wanted to help Mr. Cunningham out and did not want to see him in trouble. He could not recall exactly what Mr. Cunningham was going to do, but something was going to happen to a female. Upon refreshing his memory with his preliminary inquiry transcript, Mr. Smith-White further testified that they must have met during the first week of October 2019.

[21] Mr. Smith-White testified further that he had contact with Mr. Cunningham before Mr. Cunningham turned himself into the police. Mr. Cunningham wanted him to give the police an alibi. The alibi was that they had been together, listening to music and chilling on the night of the incident. When the police called Mr. Smith-White lied to the police and gave them the alibi. He later confessed to the police that it was a lie. In fact, on the night of October 11, 2019 he was not with Mr. Cunningham.

[22] In cross-examination, Mr. Smith-White agreed that he had no idea when the stabbing incident took place. He agreed that he wasn’t necessarily trying to lie to the police. He had seen Mr. Cunningham’s name in the paper when Mr. Cunningham first contacted him. He recalled Mr. Cunningham telling him that as a Black person he had to be careful around the police.

[23] In re-examination, after refreshing his memory from the preliminary inquiry transcript, Mr. Smith-White testified that he must have had the conversation about the alibi on the Monday prior to October 11, 2019.

[24] Mr. Cunningham testified that in October 2019 he was working as a shipper/receiver and a forklift driver. He lived with his mother and sisters. He had two children – a baby and a four-year old. They lived with their mother in Oshawa. He met Ms. Elgin in 2019. They became intimate. Ms. Elgin told him in July 2019 that she was pregnant. He was excited because he loves children, but he said he needed proof. He said he would be there and support her if she kept the child, but he urged her not to keep it. He suggested she should have an abortion as he did not think she could take care of her responsibilities. Ms. Elgin pretended to have a miscarriage at one point. Despite that, Mr. Cunningham testified that he thought he could co-parent with Ms. Elgin. He did notice that Ms. Elgin continued to drink, smoke marijuana, and smoke cigarettes. He became concerned about whether she was actually pregnant. He suggested taking a pregnancy test.

[25] On October 10, 2019 Mr. Cunningham ran some errands, including an errand to purchase two pregnancy tests. Ms. Elgin told him that she had been to the hospital due to an anxiety attack. He did not really believe she had an anxiety attack. The next day he told her he was going to go to her house with the pregnancy tests. He introduced screenshots of text messages between him and Ms. Elgin. They had a conversation about him going to see her. She claimed she was doing hair.

[26] Mr. Cunningham agreed that he was the person on the surveillance video who went to Ms. Elgin’s apartment. He was wearing a coat with the hood up because it was cold. As well, he testified that wearing a hoody was normal in his environment. Wearing two different shoes was a sort of fashion statement. He was not trying to hide his face. Ms. Elgin opened the door immediately, music was playing, and her hair was messy. He took off his shoes. He told her he would not stay the night and took off his jacket. She went to the bathroom to clean up. He took the pregnancy tests out of his jacket. He saw that Ms. Elgin had trimming scissors and other scissors that looked like a comb. When she came out of the bathroom he asked about the baby and she stared at him and looked confused. Mr. Cunningham asked for her phone to see if she did indeed call 911 earlier. She gave him the phone and he saw that she had not. He accused her of not being pregnant and of lying when she said that she had been to the hospital earlier for an anxiety attack. They started arguing and she told him to leave. She tried to grab her phone back and he said he would give it to her when she took the pregnancy test. He called her some names. She then slapped him. He pushed her away. She went down but grabbed scissors and came at him. He reached for something and was swinging back. He was not trying to kill her but just get her off him. She was raging at him while he was just trying to keep her at bay. He then grabbed his shoes and his phone and left. He went to the stairs. He still had scissors in his hand. He called an uber driver he knew who took him home.

[27] Mr. Cunningham testified that when he went home he had a bit of a breakdown. He still had Ms. Elgin’s cell phone. He discarded it. He also discarded his jacket. He had blood on his hands and may have also had blood on his jacket. He knew that he had assaulted Ms. Elgin and knew she was injured. He testified that he was defending himself when he saw Ms. Elgin holding the scissors in that crazed moment.

[28] Later, Mr. Cunningham’s sister called to tell him that he was being charged with attempted murder. He testified that he did not rob Ms. Elgin, did not intend to kill her, and did not take cash. He was shocked. He had no record, had never been charged, and did not even know that being convicted and charged were two different things. He knew he would have to turn himself in. He testified that as a young Black man, he was frightened of the police. He has corn rows and tattoos, but he is not a member of a gang and has never been involved with the law. He felt that the police would not believe him. He admitted that he did ask Mr. Smith-White to lie for him although he knew that Ms. Elgin was still alive. He testified that he was not thinking straight and regretted that he had put Mr. Smith-White in that position. He also testified that he never meant to hurt Ms. Elgin and that he made a mistake.

[29] In cross-examination, Mr. Cunningham testified that he took responsibility for his actions in lying to the police and he regretted it. He denied telling Mr. Smith-White prior to the incident about something he was going to do to Ms. Elgin. Crown counsel suggested, based on the testimony of his sister and mother at the bail hearing, that Mr. Cunningham had told them that he did not do it. Although defence counsel did not object to this line of questioning, I find that I cannot draw an adverse inference against Mr. Cunningham based on that line of questioning. He may have talked to his mother and sister prior to turning himself into the police and then changed his mind about the alibi; or, he may not have talked to them at all. I do not think that line of questioning was entirely fair. Indeed, there were questions from Crown counsel asking Mr. Cunningham to prove things. For example, Crown counsel asked Mr. Cunningham where certain records were; where the receipt for the pregnancy tests were; or where in his phone records Crown counsel could find a certain number; or to explain how the blood got on the floor. Defence counsel did not object to these questions, but they come close to the line of reversing the burden of proof: R. v. Ellard, 2003 BCCA 68; R. v. Tchavoshinassab, 2011 ONSC 221. Mr. Cunningham was unable to answer these questions, for the most part. I give Mr. Cunningham’s failure to answer these questions no weight, and to be fair, when he made submissions Crown counsel did not rely on Mr. Cunningham’s failure to answer these questions.

[30] Mr. Cunningham agreed in cross-examination that he and Ms. Elgin were in an on-again, off-again relationship. As of October 11, 2019, they were off again. He had last seen her in the middle of September as she had braided his hair for his sister’s birthday. Mr. Cunningham denied Crown counsel’s suggestion that there were no texts where he asked Ms. Elgin whether she was pregnant. He said they discussed it over the phone. He called his friend who is an Uber driver to take him to Ms. Elgin’s apartment on the night of October 11, 2019.

[31] Mr. Cunningham’s phone records were admitted into evidence. Mr. Cunningham testified that he had been dating a woman named Rachel Harding. At 20:08:36 on October 11, 2019 Mr. Cunningham had a 12-second conversation with Ms. Harding. At 20:32:09 Mr. Cunningham had a 30-second phone conversation with Ms. Harding. At 21:08:57 Ms. Harding texted Mr. Cunningham. Mr. Cunningham responded with two texts at 21:18:20 and 21:18:21. At 21:18:36, Mr. Cunningham’s phone called Ms. Harding’s cell phone. The call lasted 13 seconds. Crown counsel suggested that it was during this phone call that Mr. Cunningham said “it’s done” or words to that effect. Mr. Cunningham denied that suggestion. Crown counsel also suggested that Mr. Cunningham called Ms. Harding to have him pick her up which Mr. Cunningham denied. There was also a 146 second call to Ms. Harding at 21:32:45. Mr. Cunningham also denied that suggestion that Ms. Harding picked him up, as Ms. Harding does not drive.

[32] I do accept Ms. Elgin’s evidence that Mr. Cunningham did make a phone call and say “it’s done” based on all the circumstances. It may well be that call was made to Ms. Harding at 21:18:36. As I have mentioned, it is an agreed fact that at 21:20:25 Ms. Elgin’s neighbour called 911, which was shortly after that call.

[33] However, I cannot find that Mr. Cunningham contacted Ms. Harding to have her pick him up. There is no evidence of that. Crown counsel asked Mr. Cunningham to identify which number he might have called in the cell phone records to get a lift from his friend the Uber driver. As I said, this was a somewhat unfair question: Mr. Cunningham was sitting in custody in a detention centre in a video booth during the cross-examination. He did not have the records in detail before him. Those records show several calls with numbers that were not identified during the course of evidence. One or more of these might have been to the unidentified Uber driver. For example:

• At 20:14:16 Mr. Cunningham called 647-467-8384; the call lasted 10 seconds.
• At 20:14:43 Mr. Cunningham called 647-467-8384; the call lasted 37 seconds.
• At 21:08:47 Mr. Cunningham called 647-467-8384; the call lasted 404 seconds.
• At 21:31:36 Mr. Cunningham called 647-807-5472; the call lasted 31 seconds.

[34] It should be noted that the 404-second call at 21:08:47 “pinged” off the cell tower at Morningside and Kingston Road, which is proximate to Ms. Harding’s apartment. In cross-examination Mr. Cunningham could not recall whether he made this call from Ms. Harding’s apartment. I cannot resolve whether Mr. Cunningham was lying about whether he called his friend the Uber driver, but I do not need to resolve this question in order to make a finding.

[35] In cross-examination, Mr. Cunningham testified that he was not wearing a mask over his face in order to disguise himself. Rather, it was part of his Nike track suit. He also denied that he wore sunglasses to hide his identity. He testified that Ms. Elgin slapped him, and he pushed her on the couch. She picked up scissors and charged at him. He tried to fight her off and reached on the table for scissors to try to get her off him. Ms. Elgin did not actually connect with the scissors. He could not say how he stabbed her with the scissors on the back of her neck, as they were just fighting. He took the scissors with him because he did not want her to do something dramatic when he was leaving. He threw them away after leaving the building. Mr. Cunningham did not recognize the pool of blood on the floor. He had to put his shoes back on. The shoes had blood on them. He denied bringing a knife or some other weapon to her apartment. He did not agree that she just lay there and bled. He denied that he was picked up according to a plan and insisted that he had called his friend the uber driver. Mr. Cunningham also disagreed that the messages between his phone and Ms. Elgin’s phone were an attempt to create an alibi through a fake conversation. His position is that the times are not accurate. In re-examination, Mr. Cunningham stated that there were times that he would send messages from Ms. Elgin’s apartment and they would not go immediately – implying that his reception in her apartment was poor.

Issues

[36] The following issues must be determined:

(a) Did Mr. Cunningham intend to kill Ms. Elgin? (b) Did Mr. Cunningham do something to achieve the objective of killing Ms. Elgin? (c) Did Mr. Cunningham act in self-defence? (d) Did Mr. Cunningham steal Ms. Elgin’s phone and cash? (e) Did Mr. Cunningham use violence? (f) Did Mr. Cunningham use violence for the purpose of stealing Ms. Elgin’s phone and cash?

Analysis

a. Did Mr. Cunningham intend to kill Ms. Elgin?

[37] Mr. Willschick, counsel for Mr. Cunningham, argues that I cannot infer that Mr. Cunningham intended to kill Ms. Elgin. Although he was not enthusiastic about having a child with her, he had come to accept it. There was an agreement about co-parenting. There was discussion of things such as cribs, transportation, and names. There were, however, many problems with Ms. Elgin’s evidence. The text messages show that there was jealousy in her relationship with Mr. Cunningham. She manufactured the entire pregnancy in order to manipulate Mr. Cunningham. The fact that she did not ever mention that she was pregnant to Dr. Le, or that the pregnancy does not appear in the medical records, should give the court pause. In contrast, Mr. Willschick argues that Mr. Cunningham’s evidence that Ms. Elgin attacked him is compelling. Mr. Willschick argues that at its highest, Mr. Cunningham is guilty of aggravated assault in using disproportionate force to defend himself. He should be believed when he says that he was not attempting to hide his face. As well, Mr. Willschick the false alibi is not probative of attempted murder – it is only probative that he was aware he did something wrong.

[38] With great respect, I cannot agree. I find that Mr. Cunningham intended to kill Ms. Elgin.

[39] Attempted murder is a crime of specific intent. In order to obtain a conviction, the Crown must prove beyond a reasonable doubt two essential elements: that Mr. Cunningham intended to kill Ms. Elgin, and that he did some act toward the accomplishment of that objective. See: R. v. Ancio, [1984] 1 S.C.R. 225 at para. 32-33.

[40] Mr. Cunningham testified that he did not intend to kill Ms. Elgin. If I believe him, I must acquit. Even if I do not believe him, if his evidence leaves me in a state of reasonable doubt that he intended to kill Ms. Elgin, I must acquit. Even if I do not believe him, or his evidence does not leave me with a reasonable doubt, I may only convict if I am satisfied beyond a reasonable doubt based on the evidence I do accept: R. v. W.D., [1991] 1 S.C.R. 742. As in any criminal case, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 at para. 21; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at para. 6.

[41] I do not believe Mr. Cunningham’s evidence that he did not intend to kill Ms. Elgin. I very much did want to believe Mr. Cunningham’s evidence. He is intelligent, likeable, and what happened appears to have been out of character for him. He has had steady employment and has no criminal record. I cannot accept his evidence, however, because it is contradicted by the surveillance tapes and other physical evidence. I want to emphasize that I do not simply accept Ms. Elgin’s version of events over Mr. Cunningham’s – as Mr. Willschick pointed out, aspects of her evidence are problematic. Rather, there are five key pieces of extrinsic evidence that contradict his testimony: the video of Mr. Cunningham entering the building; the medical evidence; the video of Mr. Cunningham leaving the building; text message evidence; and the forensic evidence.

[42] Video of Mr. Cunningham entering the building: The video discloses that Mr. Cunningham was very much in disguise when he entered Ms. Elgin’s building. He is clearly wearing glasses that hide his eyes and his face is covered. He is also wearing a hooded jacket. Mr. Cunningham stated that he covered his face because he was cold. Perhaps – except he made no attempt to open jacket or uncover his face when he was inside the building. I accept that it is common for people to wear a hoody – one would have to be living under a rock not to know that it is a kind of modern fashion statement. That said, when it is combined with Mr. Cunningham covering his face and wearing glasses at night I find that it is deliberate in these circumstances. In my view, it is obvious he was attempting to hide his identity. I find that Mr. Cunningham is not credible when he says he made no attempt to disguise or hide himself.

[43] Video of Mr. Cunningham leaving the building: I do not take anything one way or the other from Mr. Cunningham leaving the building through a side entrance. That is equally consistent with panicking at the incident as it is that he attempted to kill Ms. Elgin. When Mr. Cunningham left Ms. Elgin’s building, however, he got into a car virtually right away. The waiting car appeared to be pre-planned. It is impossible to say which number Mr. Cunningham called or texted to obtain a lift, or when. Mr. Cunningham testified that he could not identify his friend the Uber driver or point out his number on his cell phone records, although I don’t take much from that as I have mentioned. I find it highly unlikely, however, that his friend would coincidentally be close by unless it was pre-arranged. In my view, that is because he had likely already pre-arranged the lift, whether his friend the Uber driver or with someone else. I do not believe him on this point, and I find also that it is circumstantial evidence of pre-meditation.

[44] Medical evidence: Ms. Elgin was seriously stabbed in the back of the neck. There were no lacerations on her hands or arms or the front of her body. Although there was no expert evidence on the point, and I must therefore be very cautious about drawing inferences about the fight (if it can be described as a fight) Mr. Cunningham described grabbing a sharp object, like a scissors, and swinging wildly to keep Ms. Elgin at bay. There were no injuries consistent with Mr. Cunningham’s actions as he described them. Rather, there were serious stab wounds that appear to be consistent with what Ms. Elgin described: she was sitting on the floor with her back to him and he stabbed her. Moreover, the stab wounds are very close to critical parts of the human body – the vagus nerve, the jugular vein, and the carotid artery. These stab wounds are consistent with an attempt to kill. I do not believe Mr. Cunningham when he says he was simply swinging wildly in an attempt to fend off Ms. Elgin. Mr. Cunningham either brought a sharp edged object with him or used scissors that were in the apartment. Either way, there is no doubt that he stabbed her.

[45] Text message evidence: Mr. Cunningham produced screenshots of text messages from his phone. Those text messages appear to be between him and Ms. Elgin. As I’ve noted the first call was made to 911 at 21:20:25. The cell phone records disclose text messages between Mr. Cunningham’s and Ms. Elgin’s phones commencing at 21:20:36, when Ms. Elgin did not have her phone and Mr. Cunningham admitted that he did. There are texts from Ms. Elgin’s phone to Mr. Cunningham at 21:21:20 and 21:24:28; these times correspond to the time of messages from Ms. Elgin that are on Mr. Cunningham’s cell phone. The messages are innocuous – no hint that Ms. Elgin has just been stabbed. It is clear they are contrived. Mr. Cunningham is not credible when he says he had nothing to do with them.

[46] Forensic evidence: There are some small discrepancies between Mr. Cunningham’s evidence and the forensic evidence. It is an agreed fact that one of Mr. Cunningham’s shoes had Ms. Elgin’s blood on it. Mr. Cunningham testified that he took off his shoes when he arrived Ms. Elgin’s apartment. That would mean that the altercation took place while he was not wearing his shoe. It is unclear to me, if that occurred, how Ms. Elgin’s blood ended up on his shoe. It seems to me more likely that she bled onto his shoe during the altercation. It is not a major point, and I do not give it much weight, but it is a factor. Another discrepancy involves the pregnancy tests. Mr. Cunningham testified that he took the pregnancy tests out of the pocket of his coat when he arrived. There is no other evidence about what he did with them. There is no evidence he put them back in his pocket when he left and Mr. Cunningham did not testify to that effect. I could see no evidence in any of the photographs of Ms. Elgin’s apartment of a pregnancy test left anywhere. Again, I do not want to put too much weight on this point because the evidence is not completely clear, but it is also a factor.

[47] When I weigh this extrinsic evidence, it may be that none on its own is enough to for an adverse finding of credibility against Mr. Cunningham. When I consider the totality of this evidence, however, it is clear that Mr. Cunningham’s version of events is not worthy of belief and does not leave me in a state of reasonable doubt that he intended to kill Ms. Elgin.

[48] Am I satisfied beyond a reasonable doubt that Mr. Cunningham intended to kill Ms. Elgin based on the evidence that I do accept? The answer is yes. Let me first deal with the evidence of Ms. Elgin.

[49] A trier of fact can believe some, none, or all of the evidence of a witness. In this case I believe the main points of Ms. Elgin’s evidence: that Mr. Cunningham came to her apartment unannounced (which seems consistent with the text messages); and that Mr. Cunningham stabbed her in the neck while her back was turned to him. I say that because the medical evidence, as I have discussed, discloses significant wounds. Those wounds are near vital points in the back of the neck. I also accept her evidence that she fell to the ground and played dead. The reason I accept this evidence is because of the screenshots of the text messages disclosed by Mr. Cunningham. It strikes me that Mr. Cunningham would hardly have concocted those messages – which I find that he did – if he thought that Ms. Elgin was alive and well when he left the apartment. Moreover, she undoubtedly would have demanded her phone back – and yet Mr. Cunningham took it. I do not accept Mr. Cunningham’s point that sometimes he would send messages from Ms. Elgin’s apartment that would be delayed. It is not just the timing of those messages that lead me to believe that they are concocted – it is also the tenor. Although Mr. Cunningham concocted those messages, I cannot find that they are probative of his intent to kill – they only go to credibility. For the reasons that I will explain regarding the false alibi, that evidence is equally probative of concern about simply being held liable for aggravated assault or some other offence.

[50] I also find that the pooling of blood near where Ms. Elgin says she was stabbed is consistent with her evidence that she played “dead” and feared she was bleeding out. Again, I must be careful and I cannot give the point too much weight because I do not have expert blood spatter evidence, but it seems to me that if Ms. Elgin were alive and moving when Mr. Cunningham left her (as he testified), the blood would not be pooled in that way.

[51] Let me deal with the issue of whether or not Ms. Elgin was actually pregnant. There is no question that Ms. Elgin told Mr. Cunningham she was pregnant; there is also no question that at times Mr. Cunningham suggested she terminate the pregnancy; and there is no question that the medical records from Sunnybrook do not indicate that Ms. Elgin informed anyone that she was pregnant. It is unnecessary for me to resolve the question of whether Ms. Elgin was pregnant or whether Ms. Elgin told Mr. Cunningham she was pregnant in order to manipulate him. She may well have. I do find as a fact that Mr. Cunningham believed she was pregnant, at least for a time. He acted as if he did believe her.

[52] There is, of course, other extrinsic evidence that Mr. Cunningham intended to kill Ms. Elgin. Much of the evidence that causes me to reject Mr. Cunningham’s testimony is also probative of this question. It is clear from the video that Mr. Cunningham attempted to disguise himself. As noted, his hoody is over his head and his face is covered. His face is covered in a comprehensive way. He is wearing sunglasses at night. It is an obvious attempt to disguise himself. The disguise – not very well executed, admittedly – is, as I have said, circumstantial evidence of pre-meditation. I also find that the pick-up after the fact is also probative of pre-meditation.

[53] I now turn to Mr. Dontae Smith-White. His key evidence is that Mr. Cunningham told him ahead of time that he was going to do something to deal with Ms. Elgin. If that evidence were true, it would be very powerful evidence of pre-meditation. Given that he was prepared to lie to the police to help Mr. Cunningham with an alibi, I think it would be dangerous to rely on Mr. Smith-White’s evidence. Moreover, I think it is just as likely that Mr. Smith-White was confused about when he discussed Ms. Elgin with Mr. Cunningham. I find that I cannot give that evidence – that is the evidence of pre-meditation – any weight. It does not assist in resolving whether Mr. Cunningham intended to kill Ms. Elgin.

[54] The second piece of evidence from Mr. Smith-White is that Mr. Cunningham asked him to lie about his alibi. Given that Mr. Cunningham admitted that he asked Mr. Smith-White to lie, he is obviously telling the truth on that point. I disagree with the Crown, however, that this after the fact conduct evidence is probative of Mr. Cunningham’s guilt on the count of attempted murder. This evidence is equally consistent with Mr. Cunningham’s evidence of self-defence. No doubt Mr. Cunningham was frightened of the consequences of stabbing Ms. Elgin, whether it was by design or in self-defence. Leaving aside whether he told the truth about Ms. Elgin being alive when he left the apartment, he clearly knew that Ms. Elgin was alive when he asked Mr. Smith-White to lie. He knew that he was only wanted for attempted murder, not murder. Mr. Cunningham obviously knew that Ms. Elgin would be able to identify him as the perpetrator. I do believe Mr. Cunningham when he ways that he was not thinking clearly when he asked Mr. Smith-White to lie for him at that point. As a result, it is impossible for me to say that the request to Mr. Smith-White to provide a false alibi – and his own false alibi – are probative of the specific intent required for attempted murder. I agree with Mr. Willschick that this evidence is equally consistent with muddled thinking, poor judgment, and panic: R. v. Arcangioli, [1994] 1 S.C.R. 129 at para. 43.

[55] As I will explain, I do not accept Mr. Cunningham’s defence of self-defence, but I do find it plausible that Mr. Cunningham believed that as a young Black man, he was worried that the police would not believe that he acted in self-defence. I do accept that as a reason for going to Mr. Smith-White for help, although it frankly does not alter the outcome of this case.

[56] Accordingly, I find that Mr. Cunningham intended to kill Ms. Elgin.

b. Did Mr. Cunningham do something to achieve the objective of killing Ms. Elgin?

[57] There is no question that Mr. Cunningham did something to achieve the objective of killing Ms. Elgin: he stabbed her in the neck.

c. Did Mr. Cunningham act in self-defence?

[58] Mr. Willschick argues that Mr. Cunningham acted in self-defence. He argues that Ms. Elgin, for the reasons I have already mentioned, cannot be believed. Instead, I should accept Mr. Cunningham’s evidence that Ms. Elgin attacked him, and he merely defended himself.

[59] Again, with respect, I cannot agree. I find that self-defence does not apply in these circumstances.

[60] Unless there is no air of reality, the Crown must prove beyond a reasonable doubt that Mr. Cunningham did not act in self-defence: Criminal Code, s. 34(1); R. v. Khill, 2021 SCC 37, R. v. Cinous, 2002 SCC 29. Section 34(1) of the Criminal Code states:

34(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

[61] Mr. Cunningham’s actions fail the tests of both s. 34(1)(a) and (b): I find that Mr. Cunningham did not believe that force was being used against him. That is because Ms. Elgin did not attack him. It therefore follows that the act that constituted the offence – stabbing Ms. Elgin – was not committed for the purpose of defending himself. The reasonableness of the force in the circumstances is not in issue.

[62] There is no need for me to repeat the analysis of Mr. Cunningham’s credibility. As I have mentioned, I do not believe his evidence that Ms. Elgin attacked him. Accordingly, I do not believe that was merely defending himself. There is also no need for me to repeat the analysis of the evidence supporting my finding that Mr. Cunningham stabbed Ms. Elgin in a planned attempt to kill her. Obviously a planned attempt to kill someone is not consistent with self-defence. I therefore find beyond a reasonable doubt that Mr. Cunningham did not act in self-defence.

d. Did Mr. Cunningham steal Ms. Elgin’s phone and cash?

[63] Mr. Cunningham is also charged with robbery contrary to s. 343(b) of the Criminal Code, which states:

343 Every one commits robbery who

(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person…

[64] The Crown must prove three essential elements beyond a reasonable doubt: that Mr. Cunningham stole Ms. Elgin’s phone and cash; that he used violence; and that he used violence for the purpose of stealing Ms. Elgin’s phone.

[65] There is no question that Mr. Cunningham stole Ms. Elgin’s phone. Although Ms. Elgin agreed to give him the phone, he admitted that he kept it with him when he left the apartment. He may have initially had permission from Ms. Elgin to have the phone – and therefore colour of right at that point – but I find that he did not have permission from her to take the phone with him. On Mr. Cunningham’s own evidence he kept the phone. As well, as I have already found, he used the phone to concoct a conversation with Ms. Elgin.

[66] I am therefore satisfied beyond a reasonable doubt that Mr. Cunningham intended to deprive Ms. Elgin of the phone: R. v. Whittaker, 1989 ABCA 141 at para. 5; Criminal Code, s. 322(1).

[67] I do, however, have a reasonable doubt about the cash. I am not satisfied that Ms. Elgin could actually tell that Mr. Cunningham went into her wallet while she was lying on the floor playing dead. I am also not satisfied that Ms. Elgin could really tell under those circumstances that Mr. Cunningham actually went into her pants pocket for the purpose of taking cash.

e. Did Mr. Cunningham use violence?

[68] Mr. Cunningham obviously used violence. I need not repeat my analysis.

f. Did Mr. Cunningham use violence for the purpose of stealing Ms. Elgin’s phone?

[69] In my view, the Crown has failed to prove that Mr. Cunningham used violence for the purpose of stealing Ms. Elgin’s phone. Ms. Elgin, on her evidence as well as Mr. Cunningham’s evidence, gave her phone to Mr. Cunningham before he stabbed her. Mr. Cunningham simply kept the phone after he stabbed her. He used violence for the purpose of killing Ms. Elgin. I have a reasonable doubt about whether Mr. Cunningham used violence for the purpose of stealing Ms. Elgin’s phone. Accordingly, he is entitled to an acquittal on the charge of robbery. I do find him guilty, however, of the lesser included offence of theft. I will entertain submissions on the value of the phone as to whether a conviction should be entered for theft under $5000.00 or theft over $5000.00.

Disposition

[70] I find Mr. Cunningham guilty of attempted murder. I find him not guilty of robbery but guilty of the lesser included offence of theft.

Released: February 18, 2022 R.F. Goldstein J.