COURT FILE NO.: CR-21-30000637-0000 DATE: 20220412

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – COREY CUNNINGHAM

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

HEARD: March 24, 2022

R.F. GOLDSTEIN J.

1. Overview

[1] On February 17, 2022, I convicted Corey Cunningham of attempted murder and theft under $5000.00. He now comes before the Court for sentencing.

2. The Facts

(a) Circumstances of the offence

[2] The facts are set out in my reasons for judgment convicting Mr. Cunningham: R. v. Cunningham, 2022 ONSC 1141. In the summer of 2019 Mr. Cunningham and Ms. Elgin had a short, intimate relationship. In August 2019 she told him she was pregnant. The relationship ended but Mr. Cunningham agreed that he would co-parent the child with Ms. Elgin although at times he encouraged her to get an abortion. It also seems that he may have been skeptical that she was really pregnant.

[3] On October 11, 2019, Mr. Cunningham went to the apartment of Christina Elgin. He disguised himself in a ham-fisted attempt to avoid identification by the security cameras. He left by a side door in a similar attempt to avoid identification. He stabbed Ms. Elgin in the neck in an attempt to kill her. She pretended to be dead even as she was suffering from significant wounds to her neck. The stabbing narrowly missed vital arteries and veins. Mr. Cunningham fabricated text messages using Ms. Elgin’s phone in a transparent attempt to hide his tracks. He also persuaded a friend to provide an alibi to the police – an alibi that quickly broke down.

[4] The entire sorry episode was marked by incompetence and foolishness by Mr. Cunningham, and bravery by Ms. Elgin. Of course, even an incompetently executed and foolish attempt at murder is still an attempt at murder, and the consequences to Ms. Elgin have been very real and very serious.

(b) Circumstances of the offender

[5] I reviewed Mr. Cunningham’s pre-sentence report in detail. Mr. Cunningham is now 26 years old. He has been in custody since October, 2019. He has no criminal record. He has two sisters. He is very close to them. Although his parents divorced when he was young, he was raised by both parents. Both parents monitored him closely and were strict in his upbringing. His parents enrolled him in soccer, drumming, and steel band in an attempt to keep him away from the potential dangers of the Malvern neighbourhood where they resided. The family was not well-off, but did manage to take trips to Jamaica and Trinidad and Tobago to visit relatives.

[6] Mr. Cunningham has a partner, Nikeisha Abdul. They have a 7-year-old daughter and a 3-year-old son. He admitted that he and Nikeisha have had a tumultuous relationship and that he has not been a good partner to her. Mr. Cunningham and Ms. Abdul both informed the probation officer that when he is released from custody they intend to come together as a family unit and raise the children together. Ms. Abdul indicated that Mr. Cunningham has always been a loving and engaged father. She was absolutely shocked to learn of the charges.

[7] Mr. Cunningham worked part-time throughout high school and had intended to attend college or university. He has worked full-time at the same job. His supervisor at work was also shocked by the charges, and described him as diligent, intelligent, and sensible. He also indicated that if it were up to him, he would re-hire Mr. Cunningham when he is released from custody.

[8] It is clear that Mr. Cunningham has the strong support of his family. His mother and sisters have been present throughout and clearly still support him. His partner, Ms. Abdul, also supports him.

[9] Mr. Cunningham has expressed remorse and apologized to Ms. Elgin and her family. He stated that he never wanted to inflict pain on her but recognizes that he made a serious mistake. He stated that what happened was not a good representation of who he is – he stated that he is a man who made a terrible, embarrassing, and sad mistake. He also apologized to his family.

(c) Impact on the victim

[10] Ms. Elgin filed a victim-impact statement. There is no question that this crime has significantly affected her. She described experiencing anxiety and fear as a result of the crime and has been diagnosed with PTSD. She has difficulty trusting men. She has been unable to travel to Scarborough, where her family lives. The crime has affected her ability to work, attend school, or study. She feels overwhelmed.

[11] Ms. Elgin also described the physical effects. Her right shoulder is lower than her left shoulder. She has no feeling in parts of her neck and the back of her head. Her right arm goes numb from time to time. The damage is permanent. Ms. Elgin also becomes nauseous when she has flashbacks. Ms. Elgin has also suffered financial damage. She could not work for a time, and lost cash and a cell phone. Having said all that, I am impressed with the way that Ms. Elgin has managed to recover from this shocking, traumatic episode and I hope that these proceedings will help her to heal and move forward with her life.

3. Positions of the Crown and Defense

[12] The Crown’s position is that Mr. Cunningham should receive a life sentence for the attempted murder. If he had succeeded, he would be guilty of first degree murder. It was a cold-blooded attempt to snuff out the life not only of Ms. Elgin, but also an unborn child. The circumstances are so horrific that nothing less than a life sentence will do. Mr. Cunningham has no mental health issues or drug addictions that are mitigating factors, and has shown no remorse or contrition.

[13] The defence position is that the proper range of sentence is 6 to 11 years. Mr. Cunningham has excellent rehabilitative prospects, is a first offender, has led a pro-social life to this point, and is quite remorseful about the injuries caused to Ms. Elgin. He should receive a sentence at the bottom end of the range.

4. Case Law

[14] Crown counsel relied on several cases setting out what he argued support a life sentence. I need only refer to a few.

[15] In R. v. Vienneau, 2015 ONCA 898, the accused broke into his ex-girlfriend’s house. She was asleep with her new boyfriend. The accused swung a knife at her. She was seriously injured. He then unsuccessfully attempted to take his own life. He attempted to plead guilty to aggravated assault. He was, however, convicted of attempted murder. The crime took place in the context of serious injuries to the victim, and planning and deliberation. The domestic context was aggravating. The accused had no prior record, had been gainfully employed. The court upheld a sentence of 11 years, finding that it was within the range.

[16] In R. v. Tan, 2009 ONCA 574, the offender pleaded guilty to attempted murder, forcible confinement, robbery, and sexual assault. The facts were horrific. The victim rejected the offender’s romantic advances while they were in a car. He grabbed her by the hair, bound her and covered her mouth in tape. He threatened to kill her if she did not stay quiet. He then drove the victim to a friend’s cottage. He tried to sexually assault her. He slit her throat and stabbed her and left her to die, covering her with a tarp. He took all her documents, including her bank account and PIN number. She managed to survive, crawl away, and obtain help. He pleaded guilty and expressed remorse. The trial judge sentenced Tan, who was a first offender, to 15 years imprisonment. Laskin J.A. noted that there is a wide range of sentences for attempted murder, ranging from as low as six years in some cases to life imprisonment in others. He pointed to the domestic-like context, the prolonged duration of the attack, the robbery, and the attempted concealment of the victim’s body. The Court of Appeal upheld the 15 year sentence.

[17] In R. v. Simard, 2017 ONCA 690, the offender pleaded guilty to attempted murder, unlawful confinement, uttering death threats and assaulting a police officer in the execution of her duty. He advanced a defence of not criminally responsible, which was not accepted. He was a caregiver at a facility for developmentally-challenged people. The complainant was a resident. The complainant was severely autistic and non-verbal. The offender took the complainant into the woods near the facility and severely beat him. When a co-worker asked what happened he threatened to kill her. He later stated: “I tried to kill a retard because he was a drain on society, I took him into the bushes and beat the fuck out of him. I thought he was dead.” The Court of Appeal noted it was a “savage and brutal attack on a defenceless and vulnerable complainant.” The Court, characterizing the attempted murder as a callous and egregious breach of trust, upheld a sentence of twenty years.

[18] In R. v. K.G., 2010 ONCA 177, the victim was the estranged wife of the offender. The offender believed that the wife was involved with another man. On the day of the assault the wife and children picked up the offender in a car. They became involved in an argument. He struck the wife so hard that blood spattered on the children. One of the children called an aunt, who could hear screaming. The wife and the offender got out of the car and continued the argument. The offender then got into the car, and drove into and over the wife. She was dragged by the car for 82 feet and suffered extensive and very serious life-threatening injuries. The children were still in the car. The offender eventually sent them home in a taxi, and threatened to kill the wife’s family. The accused had a criminal record. He pleaded guilty. The trial judge characterized the offence as one of “stark horror”. The Court of Appeal upheld the 14-year sentence.

[19] In R. v. Huff, 2012 ONCA 86, the victim had ended the relationship with the offender. He fabricated a false alibi. The victim’s skull was shattered by blows from a baseball bat. The Court of Appeal called the attack “calculated” and “callous”. The offender had numerous convictions and no significant gaps in his criminal record. The Court of Appeal upheld a life sentence.

[20] The defence also filed several cases. Again, I need not quote all of them. Mr. Willschick relied on R. v. Postma, 2013 ONSC 7218 as an example of the upper end of the range. Ms. Postma pleaded guilty to the attempted murder of her daughter. She left the matrimonial home after 27 years of marriage and was distraught due to her own infidelity. She slit her youngest daughter’s throat with an Exacto knife. The daughter ran away but Ms. Postma caught up and stabbed her with a kitchen knife. There was no suggestion of a mental disorder, and no drug or alcohol issues, although there was some suggestion that she had heard voices. Ms. Postma – who was a religious Christian – also told the probation officer who wrote the pre-sentence report that she was being punished for her sins and that God had told her to hurt her daughter. The attempted murder was completely unexplained. Ms. Postma was 48 and had no criminal record. Ms. Postma had many letters of support from members of her community. The sentencing judge found that it was a brutal, terrorizing, and horrific act that included persistent attempts to kill her own daughter. He sentenced Ms. Postma to 11 years in custody.

[21] In R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A), the offender struck his former wife’s car in an attempt to kill her. He spun into a ditch. She was able to drive away. Prior to the collision he had approached her with a metal bar, but she managed to get into her car and drive away. The offender was 53, had no criminal record, and had been employed steadily throughout his life. The trial judge sentenced him to two years less a day and two years of probation in light of 14 months of pre-sentence custody. The trial judge stated that it was the equivalent of a four-year sentence. The Crown appealed on the basis that the sentence was manifestly unfit. The Court of Appeal found that in cases of attempted murder, the principles of denunciation and deterrence are paramount. The Court would have substituted a sentence of six years but chose not to re-incarcerate the offender and instead varied the period of probation to three years.

[22] In R. v. Botelho, 2010 ONCA 497 the trial judge imposed a sentence of seven years for attempted murder. The offender, in a vicious attack, stabbed the complainant several times. The offender had a history of violence towards the complainant. He had prior convictions for domestic assault, including one on the complainant. He was on probation when he committed the offence, and in specific breach of a term that he not be within the complainant’s presence within 24 hours of consuming alcohol. The offender was unrepentant and maintained that the injuries were caused by an accident. The Court of Appeal varied the sentence to 8 ½ years for the attempted murder.

[23] In R. v. Payne, 2006 CarswellOnt 2256, [2006] O.J. No. 1485 (Sup.Ct) the offender tried to kill his ex-girlfriend and her sister with a hammer and a knife. There was a struggle which went on until the police came. The ex-girlfriend suffered significant knife wounds to her hands and hammer blows to her head. The attack was brutal. The offender had a criminal record as both a youth and an adult. His record included a domestic assault, as well as drug trafficking and possession of a weapon. He was distraught from the end of the relationship. The offender pleaded guilty, was remorseful, and was suffering from mental health issues. The sentencing judge, Kiteley J., found that the range of sentence for an attempted murder in the circumstances of a domestic assault was between six and ten years. He had served 43 months in pre-sentence custody. Kiteley J. sentenced him to a further period of 3 years and 3 months, which worked out to a sentence of 6 years and 10 months.

5. Mitigating and Aggravating Factors

[24] The Crown correctly points to numerous aggravating factors. The most obvious aggravating factor is the planned, deliberate, and cold-blooded nature of the attempt to kill Ms. Elgin. Mr. Cunningham then tried to cover his tracks by using Ms. Elgin’s phone, which he stole.

[25] A serious aggravating factor is that Mr. Cunningham put his friend, Dontae Smith-White at significant risk by encouraging him to provide a false alibi to the police. Although I did not find that the encouragement to Mr. Smith-White to be probative on the issue of Mr. Cunningham’s specific intent to commit murder, it is certainly a factor on sentencing. It was another foolish act, because Mr. Cunningham knew that Ms. Elgin was alive, or at least he should have known that she was alive at that point and would certainly have been able to identify him.

[26] I also agree with the Crown that this was a domestic situation. Mr. Cunningham and Ms. Elgin had been intimate partners and were having a child together. It is thus an aggravating factor.

[27] There are also numerous mitigating factors. Mr. Cunningham is a first offender. He has worked steadily, supported his children, and generally lived a pro-social life. He enjoys the support of his family. It is noteworthy that many people who know him were astonished to hear of this crime. Most found that it was out of character for him. I made the same observation when he testified – as I said in my reasons for judgment, I found Mr. Cunningham to be likeable and intelligent. The pre-sentence report was very favourable.

6. Principles of Sentencing

[28] As the Court of Appeal has emphasized in many cases dealing with attempted murder, the primary sentencing principles are denunciation and deterrence. Exemplary sentences are called for when one person attempts to snuff out the life of another. Of course, the principle of rehabilitation is also a factor, but it plays a lesser role.

7. Ancillary Orders

[29] There will be a DNA order as this is a primary designated offence. As Mr. Cunningham is a first offender, there will also be a s. 109 order for 10 years. As well, there will be a no-contact order. Mr. Cunningham is to have no contact with Ms. Elgin pursuant to s. 743.21 of the Criminal Code.

8. Sentence Imposed

[30] As I pointed out to counsel during the sentencing hearing, Mr. Cunningham presents a real paradox. On the one hand, prior to this incident he had never been in trouble with the law. He graduated from high school, worked steadily, and had a life. He had friends and children, he liked music, and seemed to be living the life of a 20-something in Toronto. Everyone associated with Mr. Cunningham expressed utter shock when they learned of the charges. There is absolutely nothing in Mr. Cunningham’s previous life to indicate that one day he would try to kill the mother of his unborn child. And yet, that is what happened. Mr. Cunningham is an example of why judges find sentencing so challenging: he committed a horrible crime, a crime that must be denounced, and yet he is a young man who has obvious potential for rehabilitation and reintegration into the community.

[31] Ultimately, I find that this crime, as horrible as it was, was out of character for Mr. Cunningham. I agree that it does not represent the totality of who he is.

[32] Mr. Cunningham says he is remorseful and genuinely regrets harming Ms. Elgin. Of course, that is difficult to square with the stance he took at trial, which is that he acted in self-defence when Ms. Elgin attacked him. I did not believe him on that point. Nonetheless, I accept that his comments are sincere at least to the extent that even a person acting in self defence – which to be fair, I rejected – can regret harming a person who attacked them. That said, Mr. Cunningham did not plead guilty. He does not get the mitigation that would result from a guilty plea, which would spare the complainant from testifying, save the court time and resources, and announce to the community that he was taking responsibility.

[33] The range of sentence for this offence is 6 years to life, as set out in R. v. Tan, supra, at paras. 35-38. In this particular case, I reject Crown counsel’s suggestion of a life sentence. It is quite true that if Mr. Cunningham had been successful, he would be facing a charge of first degree murder – but that can be said of every single case of attempted murder, including cases where the courts have imposed sentences as low as 6 years. I agree with Mr. Willschick that a life sentence would be crushing for a young man with no criminal record and excellent prospects for rehabilitation.

[34] This was a case of attempted murder in a domestic context involving a former intimate partner. In my view, this case is closer to cases such as Boucher, Botelho, and Payne than it is to Huff and Postma. I am not minimizing Mr. Cunningham’s culpability, and I am certainly not discounting the terror that Ms. Elgin must have felt, but this was not a case of “stark horror” like K.G., Tan, or an egregious and terrifying breach of trust like Simard. I do not wish to over-emphasize the principle of rehabilitation at the expense of the other sentencing principles, but it seems to me that Mr. Cunningham’s rehabilitative prospects take this case into the lower end of the range. When I take the mitigating and aggravating factors into account, as well as the sentencing principles of denunciation, deterrence, and the domestic context of the crime, the appropriate sentence is 7 years.

[35] As of today, Mr. Cunningham has spent 914 real days in custody. At the rate of 1.5:1, that works out to 1371 days – or just under 46 months in custody, which is the equivalent of 3 years and 10 months. Mr. Cunningham has been in custody throughout the Covid-19 pandemic – at this point, over two years. Although no specific evidence has been filed, this court has heard time and time again about the impact that the pandemic has had on our carceral institutions. Prisoners have had limited exposure to rehabilitative programs; they have had limited opportunities for fresh air and gym time; they have been exposed to the possibility of infection in a congregate setting; and they have spent a considerable amount of time locked down in their cells. At this point, I would say that conditions in remand facilities in the Greater Toronto Area during the course of the pandemic are an open and notorious fact, and subject to judicial notice.

[36] In R. v. Duncan, 2016 ONCA 754 and R. v. Marshall, 2021 ONCA 344, the Court of Appeal has advised on the proper approach to be taken to harsh conditions in a custodial facility. As the Court of Appeal stated in Marshall at paras. 52-53:

The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

Often times, a specific number of days or months are given as "Duncan" credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the "Duncan" credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the same way as the "Summers" credit. If treated in that way, the "Duncan" credit can take on an unwarranted significance in fixing the ultimate sentence imposed.

[37] Thus, although a specific number is not necessarily inappropriate, harsh conditions are to be treated as a mitigating factor on sentence. Different judges have credited different amounts of time during the pandemic. In my view, it would be appropriate to credit Mr. Cunningham with a further 12 months. That means that his seven-year sentence (or 84 months) will be reduced by 58 months. Mr. Cunningham will, therefore, have a further 26 months (or two years and two months) left to serve. His warrant of committal will therefore show that he has 26 months left to serve, in light of 64 months of pre-sentence custody.

DISPOSITION

Mr. Cunningham is sentenced seven years imprisonment. He is thus sentenced to 26 months in the penitentiary in light of 58 months of pre-sentence custody. He will serve one month concurrent on the theft under count. He will provide a sample of his DNA. He will be prohibited from the possession of weapons for 10 years pursuant to s. 109 of the Criminal Code. He is prohibited from contact with Christina Elgin for the duration of his sentence pursuant to s. 743.21 of the Criminal Code.

Released: April 12, 2022