COURT FILE NO.: CR-23-0132-00 DATE: 2024-04-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King S. McNaughton and S. Crowe, for the Crown

- and -

G. Joseph and P. Vo, for the Accused Daniel Keefe

HEARD: February 13, 2024, at Thunder Bay, Ontario R.S.J. W. D. Newton

WARNING A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 517(1) OF THE CRIMINAL CODE OF CANADA

Reasons on Application

Overview

[1] Daniel Keefe is charged with second degree murder for the death of Aiden Cunningham on June 25, 2022.

[2] The defence is self-defence.

[3] By this application, the defence seeks orders allowing Mr. Keefe to adduce three videos, and the criminal record and “Niche” records of Mr. Cunningham that “speak to the violent disposition of the victim.”

The Facts

The Preliminary Inquiry Evidence

A.L.M.

[4] A.L.M. is 18 years old. He was best friends with Mr. Cunningham. A.L.M. was acquainted with Mr. Keefe. They met in late 2021. He testified that Mr. Cunningham and Mr. Keefe were not friends.

[5] A.L.M. testified that Mr. Cunningham had called him to hang out. Mr. Cunningham said he was at Mr. Keefe’s house which was about a block from A.L.M.’s house. A.L.M. went to Mr. Keefe’s house and was only there for about 15 minutes before Mr. Keefe asked them to leave because his aunt was coming home. While they were there, they played video games and smoked “weed”.

[6] A.LM. testified that as they were leaving at the doorway, Mr. Cunningham and Mr. Keefe started arguing about a girl and what was said to her. Mr. Keefe passed his phone to Mr. Cunningham so that Mr. Cunningham could see what Mr. Keefe had said on his phone. When Mr. Cunningham handed the phone back, A.L.M. saw Mr. Cunningham and Mr. Keefe pushing each other and then “just going crazy at each other”. When asked who hit who, he said:

A. Well, [Mr. Cunningham] was punching [Mr. Keefe]in the head and like maybe the chest, but like mostly the head, and like pushing him backwards. And then it looked like [Mr. Keefe] was just going like, hitting him in his chest, like just punching him like this, going ....

Q. And you're demonstrating a rapid series of punches with both your hands.

A. Yes.

Q. Okay. What happened next?

A. Then all of a sudden like [Mr. Cunningham] just stopped and then turned around and ran outside. And his shirt was all ripped up and covered in blood. And like, I don't know, at first, like at first, I thought maybe [Mr. Keefe] got a bloody nose or [Mr. Cunningham] got a bloody nose.

A. And then [Mr. Keefe] comes to the door and he's like, and he's like"Why, why'd you try to fight me? Don't try to fight me. I got you. I fucking got you."

[7] A.L.M. said that Mr. Cunningham was angry when he handed the phone back to Mr. Keefe.

[8] He describes Mr. Cunningham as 6’1”, “big. Like he’s strong.”

[9] In cross-examination, A.L.M. described what Mr. Keefe said as follows:

Q. Okay. But you're not certain about what he said prior to that. It was something like"Don't try and do anything to me" or"Don't try and fight me."

A. Yeah"Don't try and come at me again ever" something like that, along those lines.

D.A.

[10] D.A. was at Mr. Keefe house playing video games at the time of the incident.

[11] He said that Mr. Cunningham and A.L.M. arrived together and called for Mr. Keefe through an open window. While upstairs he saw Mr. Cunningham take “a bong rip”. He said that they were not there long – six or seven minutes. Everyone else went downstairs and he heard what sounded like fighting.

J.L.

[12] J.L. was Mr. Cunningham girlfriend. She has never met Mr. Keefe but had texted with him a “couple of days” before Mr. Cunningham’s death. She testified that Mr. Keefe and Mr. Cunningham had an argument and that she then “texted [Mr. Keefe] to also get into an argument with him.” The dispute appears to be about whether Mr. Cunningham had used Mr. Keefe’s phone to text J.L. to send a fake suicide note regarding Mr. Cunningham. Mr. Keefe was telling her that Mr. Cunningham had put him up to sending these messages, but Mr. Cunningham was disputing this. At one point, J.L. texted Mr. Cunningham saying that she was killing Mr. Keefe because Mr. Keefe had lied to her about the messages.

[13] On the day of Mr. Cunningham’s death, J.L. was texting both Mr. Cunningham and Mr. Keefe. Mr. Cunningham texted her saying: “I’m at his house right now.” She responded: “Read what I said. I know you are.” He responded: “okay. I’m beating his ass because I don’t know what you are talking about.” She then texted Mr. Keefe saying: “DK, I’d say fucking run.”

Dr. Escott

[14] Dr. Escott was the forensic pathologist who conducted the post-mortem examination of Mr. Cunningham. There was a stab wound to the left chest that entered between the ribs and penetrated the right ventricle of the heart and a second stab wound to the lower chest that penetrated the diaphragm. Dr. Escott was unable to determine which wound was first.

The 911 call

[15] Mr. Keefe called 911 at 17:23 p.m. and spoke to the 911 operator for 22 minutes until the police arrived. During that call he made the following statements:

• “… Just been attacked and I defended myself with a knife”
• “… Having a panic attack”
• “… Defended myself with the knife”
• “… Unprovoked”
• “… He attacked me”
• “… I didn’t want to hurt him”
• “… Both getting ready to attack me”
• “… Attacked by both of them”
• “… I don’t want to go near the doorway because I’m scared that they’ll be there”
• “.. I was too scared and just didn’t want to get hurt”
• “… He still kept trying to attack me. I just wanted him to leave”
• “… They have attacked me in the past before”
• “… I didn’t want to do it”
• “… I was just scared”
• “… I’m scared that they might come back”
• “… I was just trying to keep them out”

Testimony of Mr. Keefe

[16] Mr. Keefe identified himself and Mr. Cunningham in videos 1(a) and 1(b). He said he was attacked in those videos by Mr. Cunningham because Mr. Keefe was in a group chat in which a friend of his had threatened Mr. Cunningham and Mr. Cunningham’s mother.

[17] Mr. Keefe said that the attack depicted in videos 1(a) and 1(b) occurred when he was 17. Snow is present on the ground so it could have been the winter of 2021-2022 or spring of 2022.

[18] Mr. Keefe said that Mr. Cunningham was hiding behind a dumpster and attacked him. He did not fight back. He said that he was “quite concussed” and had a “bit of swelling” to his face. He had to call his mother to pick him up at school because he could not continue at school for the rest of the day. He did not call the police because he was “scared’ of Mr. Cunningham.

[19] Mr. Keefe identified Mr. Cunningham as the attacker depicted in video 2. He said that he was told by the person who sent him the video that it was Mr. Cunningham. Mr. Keefe could also tell it was Mr. Cunningham because it looks like him. He testified that he saw this video “months” before being arrested. In cross-examination he didn’t know if it was possible that he found out about video 2 after his arrest.

[20] With respect to Mr. Keefe’s knowledge of Mr. Cunningham’s involvement with the “criminal justice system” prior to June 25, 2022, Mr. Keefe testified that Mr. Cunningham had a curfew because he had “bear maced” (pepper sprayed) one of Mr. Keefe’s friends.

The Videos

Videos 1(a) and 1(b)

[21] Video 1(a) is 10 seconds long. The video shows Mr. Cunningham attacking Mr. Keefe from behind and throwing him to the ground. Mr. Cunningham punches Mr. Keefe at least six times with what appears to be full force. The punches are to Mr. Keefe’s head and side of his torso. Mr. Cunningham is yelling at Mr. Keefe throughout.

[22] Video 1(b) is 16 seconds long. This video shows the same assault and it begins after video 1(a). Mr. Cunningham is straddled on top of Mr. Keefe who was lying face up on the ground. Mr. Cunningham punches Mr. Keefe once on the left side of the head. Mr. Cunningham is yelling at Mr. Keefe throughout.

[23] Both videos show no aggressive acts by Mr. Keefe. Mr. Keefe makes no attempt to fight back.

Video 2

[24] Video 2 is 57 seconds long. Mr. Cunningham shouts “I’m going to kill you and your brother. I’m going to stomp your face in right now.” The person he attacks is sitting on a couch. Mr. Cunningham punches and slaps that person on the side of head with his right hand. He continues to kick and punch, kicking repeatedly. He drags that person by the leg off the couch onto the floor. He kicks and stomps on that person’s head at least 10 times. Mr. Cunningham then punches and slaps that person in the head with both hands at least 20 times. The person being attacked is not fighting back. A bystander is heard to say “[Mr. Cunningham]” three times in what appears to be an attempt to get Mr. Cunningham to stop attacking the person.

Mr. Cunningham’s Criminal Record

[25] Mr. Cunningham had three prior convictions for assault as a young person with occurrence dates of July 13, 2018, October 9, 2019, and January 3, 2021. Mr. Cunningham had other charges of assault as an adult that were withdrawn.

Positions of the Parties

[26] Mr. Keefe’s counsel argues that the two incidents recorded on video, Mr. Cunningham’s criminal record, and what Mr. Keefe knew about Mr. Cunningham’s propensity for violence and the intensity of that violence, are all relevant to the issue of self-defence to establish not only who was the aggressor but also the proportionality of the response to that aggression. Counsel relies upon R. v. Scopelliti, (1981), 34 O.R. (2d) 524 (Ont. C.A.) (“Scopelliti”) and cases that follow Scopelliti.

[27] The Crown concedes that videos 1(a) and 1(b) are admissible since Mr. Keefe was the victim and has identified Mr. Cunningham as his attacker. The Crown argues that video 2 is not admissible because the identity of the attacker has not been established since Mr. Keefe was informed that it was Mr. Cunningham who was the attacker.

[28] Further, the Crown argues that evidence of Mr. Cunningham’s propensity for violence is unnecessary since the Crown’s case will include J.L.’s evidence of the text message from Mr. Cunningham – “I’m beating his ass” – which establishes that Mr. Cunningham initiated the fight.

[29] Finally, while the Crown concedes that Mr. Keefe may testify about what he knows of Mr. Cunningham’s criminal record, evidence of the three assaults is not necessary and highly prejudicial.

The Law

[30] Prior acts of violence by a victim may afford evidence of:

a. The accused’s state of mind; and

b. The probability that the victim was the aggressor in cases of unlawful homicide where the accused relies upon self-defense. [1]

[31] In Scopelliti, at paras. 29-30, the court stated:

It is well established that where self-defence is raised, evidence not only of previous assaults by the deceased on the accused, but also of previous acts of violence by the deceased, known to the accused, towards third persons, is admissible to show the accused's reasonable apprehension of violence from the deceased. Evidence of the deceased's reputation for violence, known to the accused, is admissible on the same principle. [Citations omitted; emphasis added.]

Obviously, evidence of previous acts of violence by the deceased, not known to the accused, is not relevant to show the reasonableness of the accused's apprehension of an impending attack. However, there is impressive support for the proposition that, where self-defence is raised, evidence of the deceased's character (i.e. disposition) for violence is admissible to show the probability of the deceased having been the aggressor and to support the accused's evidence that he was attacked by the deceased. [Emphasis added.]

[32] Similarly, in R. v. Golov, 2017 ONSC 6672, at para. 50, the court stated:

That said, a deceased’s disposition or pattern of past behaviour for violence or aggression unknown to the accused, evidence established by otherwise admissible evidence, and not to be governed by the test applicable to evidence of an accused’s similar acts, may, in a case where self-defence is raised, be probative respecting issues such as whether the deceased acted aggressively or provoked the accused on the relevant occasion, whether there existed a risk of harm to be assessed by the accused and the probability that circumstances led to the accused repelling an attack (leaving aside issues of the subjective aspects of an accused’s self-defence claim and whether he responded with excessive violence). The onus is on the prosecution to disprove self-defence where the trial record gives an air of reality to that defence, as will often be the case although the evidence may come exclusively from the accused. [Citations omitted; emphasis added.]

[33] As noted in R. v. Mackinnon, 2012 ONSC 6236, at para. 29, this type of evidence will only be inadmissible where its prejudicial effect substantially outweighs its probative value.

Analysis and Disposition

[34] I am satisfied that Mr. Cunningham is the attacker in video 2. The attacker in video 2 resembles the attacker in videos 1(a) and 1(b), was identified by Mr. Keefe as Mr. Cunningham, and was named as Mr. Cunningham three times in the video. I am also satisfied that Mr. Keefe saw this video prior to June 25, 2022.

[35] These videos go beyond showing Mr. Cunningham’s propensity of violence and that he might be the instigator of violence. These videos demonstrate the risk of harm to be assessed by the accused in this case. Both attacks are not fights but are relentless assaults on others who are not fighting back.

[36] The three convictions show that this behavior is not isolated nor deterred by involvement with the criminal justice system.

[37] The videos, the convictions, and Mr. Keefe’s knowledge of Mr. Cunningham’s curfew and pepper spray attack are all proximate in time to this incident, and the cumulative effect of this evidence is probative to Mr. Cunningham’s propensity for violence and the risk of harm perceived by the accused.

[38] The application is granted, and the proposed evidence is admissible. As acknowledged by both counsel, a limiting instruction will be required with respect to this evidence.

“Originally signed by”

The Hon. Mr. Justice W.D. Newton

Released: April 4, 2024

COURT FILE NO.: CR-23-0132-00 DATE: 2024-04-04 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: His Majesty the King - and – Daniel Keefe REASONS FOR JUDGMENT Newton R.S.J. Released: April 4, 2024

[1] The Honourable Mr. Justice David Watt, Watt’s Manual of Criminal Evidence, (Toronto: Carswell, 2018) at p. 568.