Reasons for Decision on Bail Application

Court File and Parties

COURT FILE NO.: CR-24-0013-00BR DATE: 2024-02-07

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 -

Daniel Keefe G. Joseph and P. Vo, for Mr. Keefe Applicant

HEARD: January 30, 2024, at Thunder Bay, Ontario

Mr. Justice F. Bruce Fitzpatrick

Warning: Non-Publication Order

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

517 (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as (a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply (2) Every person who fails, without lawful excuse, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

[1] Daniel Keefe (“Keefe”) is charged with second-degree murder. He is alleged to have murdered Aiden Cunningham (“Cunningham”) on June 25, 2022. Mr. Keefe concedes the interaction between himself and Mr. Cunningham on that date caused the death of Mr. Cunningham.

[2] Mr. Keefe was denied bail at his initial application. Nieckarz J. gave reasons for her decision in R. v. Keefe, 2022 ONSC 6729 released November 29, 2022.

[3] The Crown concedes that the passage of time represents a notional material change in circumstance permitting Mr. Keefe to bring a fresh application for bail. Both parties rely, in different ways on the decision of Nieckarz J. noted above. The defence concedes that the decision of Nieckarz J. was not in legal error when it was handed down.

The Proceedings

[4] Mr. Keefe’s preliminary inquiry occurred in June 2023. On consent he was committed to stand trial on the charge of second-degree murder. The trial is scheduled to begin May 13, 2024.

The Facts

[5] Neither party provided an express summary of the facts in their written materials provided to the court. The same Crown Major Crime brief containing a synopsis of the facts that was before Nieckarz J. in July 2022, was placed before the court on this application. Nieckarz J. summarized the allegations in her decision in paragraphs 5 through 14. I repeat that summary here:

Summary of the Allegations

[5] On Saturday June 25th, 2022, Mr. Keefe and the victim, Aiden Cunningham, are alleged to have been together at Mr. Keefe's residence located at 113 Crown Street, Thunder Bay, Ontario. Mr. Keefe is 18 years old, and Mr. Cunningham was 19 years old.

[6] Another male, Austin Lemay-Menard, was invited by Mr. Cunningham to Mr. Keefe's home to "hang-out".

[7] Shortly after Mr. Lemay-Menard arrived at the home, Mr. Keefe asked him and Mr. Cunningham to leave. Mr. Keefe and Mr. Cunningham are alleged to have become involved in a verbal argument over a female, which escalated to a physical altercation involving pushing, shoving and punching.

[8] Mr. Lemay-Menard alleges that this physical altercation lasted approximately 15 - 35 seconds in length and resulted in Mr. Cunningham leaving the home in a bloodied state, with an injury to his upper left chest area. He called 911 and attempted to stop Mr. Cunningham's bleeding. At a roughly similar time, Mr. Keefe called 911, requesting an ambulance for a sore hand and to assist him with a panic attack he was suffering from.

[9] Shortly after calling 911, Mr. Keefe was arrested for aggravated assault. He was transported to the hospital, accompanied by a police officer.

[10] Mr. Cunningham was also transported to hospital, where he was pronounced dead within approximately one hour of Mr. Lemay-Menard initially calling 911. The attending physician noted that Mr. Cunningham had suffered a stab wound to his left upper chest/ribcage, that ran deep within the chest cavity.

[11] Mr. Keefe was re-arrested to murder and re-read his rights to counsel and caution. He has remained in jail since his arrest on June 25th.

[12] After speaking with counsel, Mr. Keefe provided a statement to police acknowledging he had a knife with him during the day of June 25th, 2022. He stated he was carrying a knife because he had walked to the bank [earlier] that day and was concerned about "getting jumped". He explained that he had had previous issues with Mr. Cunningham, where Mr. Cunningham had beat him up at school and had two friends jump him in an alley and spray him with mace. He estimated this happened several months prior.

[13] Mr. Keefe told police that he pulled the knife from his pocket and began waving it at Mr. Cunningham prior to the physical altercation, stating that he did not want any trouble. Mr. Keefe acknowledged there being a physical altercation with Mr. Cunningham that involved punching. He further admitted to having stabbed Mr. Cunningham once, stating he was afraid after Mr. Cunningham started punching him. Mr. Keefe further acknowledged that Mr. Cunningham did not have a weapon and had only been engaging in the physical altercation with his fists. Mr. Keefe acknowledged that he did not sustain any serious injuries because of the physical altercation.

[14] The female who was the subject of the dispute told police that she received a message from Mr. Keefe shortly after the altercation, saying "I stabbed him, I didn't mean to hurt him".

[6] Neither party took the position that this summary of the allegations was erroneous, inaccurate or misleading. I adopt the summary of the allegations noted above for the purposes of my decision.

[7] There were additional facts placed before the court on this application. There were preliminary inquiry transcripts of four witnesses provided to the court which were not available to Nieckarz J. In addition, two actual 911 calls were placed in evidence: one by a witness and one by Mr. Keefe. In the first minute and twelve seconds of the 911 call placed by Mr. Keefe, he says “yes I’ve just been attacked and I defended myself with a knife”. He then repeats the assertion twice in that first minute. Throughout the call Mr. Keefe, at times, speaks of being scared, having been attacked and defending himself.

[8] Evidence given by one witness at the preliminary inquiry, as to the fight at issue, testified that both men were punching each other after Mr. Keefe had shown Mr. Cunningham his cell phone. The two men “were going crazy at each other in the doorway”. According to the witness Austin Lemay-Menard [“Austin”], after Mr. Cunningham was outside with a ripped shirt with blood on it:

A. And then DK (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." That's exactly what he said word for word.” (transcript of Austin Lemay-Menard in chief p. 23 line 30 -32 and page 24 line 1)

The Applicant

[9] Mr. Keefe is now almost twenty years old. He has no criminal record. He did not finish high school. Mr. Keefe submitted his own affidavit. He outlines two courses he has completed while incarcerated. They relate to anger management and substance abuse. He agrees to abide by all directions of his sureties. He understands he will not be allowed to leave a house located at 4308 Oliver Road in Thunder Bay, except in the presence of his sureties. He lists the persons with whom he is to have no contact pending trial.

The Proposed Sureties

[10] Melissa Hay, Mr. Keefe’s mother (“Melissa”) and his aunt Jennifer Hay (“Jennifer”) are proposed sureties. Both submitted affidavits and were cross-examined. Melissa is proposing to pledge all she owns, worth $50,000 (she estimates) in support of her son. Jennifer will pledge up to $25,000 on a no deposit basis. Melissa will be the primary surety, with Jennifer providing support as required. Melissa has promised to remove the router for her house in order for the internet to be disconnected whenever she is required to be absent from the house without Mr. Keefe. Mr. Keefe will not be allowed to possess a cell phone.

[11] Both Melissa and Jennifer noted in their affidavits that:

since the original bail application has happened more evidence has come to light. I am comforted by the fact that this evidence suggests that my nephew may have been acting in self-defence. I understand that it will be up to the jury to decide that.

[12] When cross examined specifically about this evidence, both Melissa and Jennifer referred to hearsay evidence from others, including cell phone video, which demonstrates that Mr. Cunningham bullied and beat up Mr. Keefe in the past. This was not evidence that was placed before the preliminary inquiry. Counsel for Mr. Keefe indicates that a Scopeliti application is currently being arranged with the Crown.

[13] Melissa noted a marked decline in Mr. Keefe’s health since he has been in custody. She says:

while he was out of custody he has never been diagnosed with any mental health issues. I understand now that while he has been in custody he is being prescribed medication for panic disorders. He is now for the first time medicated with Clonazepam. During our visits at the District Jail, I find him to be lethargic, unengaged and at times drooling. It is difficult to maintain a conversation with him, he seems confused and cannot speak for more than 20 to 30 minutes at a time.

The Law and the Positions of the Parties on the Three Grounds for Detention

[14] Pursuant to s. 522 of the Criminal Code, the onus is on Mr. Keefe to show on a balance of probabilities why he should be released. The justification for detention is found in the provisions of s. 515(10) of the Criminal Code and include the primary grounds, which are to ensure his attendance in court; the secondary grounds, which are a consideration of the protection or safety of the public, including any substantial likelihood that he would commit further criminal offences or interfere with the administration of justice; and the tertiary grounds, which are to maintain confidence in the administration of justice.

Primary Grounds

[15] The Crown conceded that there are no concerns about Mr. Keefe attending any future court dates.

Secondary Grounds

[16] The secondary ground is set out at section 515(10)(b) of the Criminal Code. It is directed at the issue of the safety of the public in general and witnesses in particular. The secondary ground does not consider whether the accused might commit a further offence or interfere with the administration of justice; there must be evidence to show that it is substantially likely that the accused would do so.

[17] Part of the court’s role in assessing the secondary ground is to consider the seriousness of the offences and the strength of the Crown’s case. It is not in dispute that a charge of second-degree murder is a most serious matter. Prior to this event, Mr. Keefe had no interactions with the authorities.

[18] Mr. Keefe argues there is no evidence as to his propensity to commit further crimes or any criminal antecedents. There is no evidence he will be motivated to contact witnesses to this case. The modification to the bail plan includes the condition to pull the router when Melissa is away means Mr. Keefe will have no internet access to contact witnesses.

[19] The Crown submits that there continues to be substantial risk for Mr. Keefe to reoffend. The altercation at issue escalated very quickly from a fist fight to a stabbing. Mr. Keefe had a knife before the altercation began. He invited Mr. Cunningham to “hang out”. This invitation has to be assessed in the context of the assertion that Mr. Cunningham had in the past bullied and beat up Mr. Keefe. The Crown argues the bail plan proposed is unrealistic. It is more hopeful than practical. The proposals for schooling and/or work for Mr. Keefe does not appear to be based on any kind of reasonable prospect that they will occur. The Crown argues that its case remains strong. The issue of self defence remains vague and the facts that have emerged subsequently to the first bail decision, in fact, make the Crown’s case appear stronger. The “I got you. I fucking got you” comments alleged to be made by Mr. Keefe are important in assessing the strength of the case for the Crown.

The Tertiary Grounds

[20] Section 515(10)(c) of the Criminal Code provides that detention is justified if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:

i. The apparent strength of the prosecution’s case; ii. The gravity of the offence; iii. The circumstances surrounding the commission of the offence, including whether a firearm was used; and iv. The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[21] The test is whether detention is necessary to maintain confidence in the administration of justice, having regard to the four factors listed above and whether, in light of all the circumstances, a reasonable member of the community would conclude that detention was both necessary and appropriate. No one factor standing alone will be sufficient to justify detention on this ground. It is the combined effect of all the factors that may lead to the conclusion that detention on this ground is justified.

[22] In the leading case on this issue from the Supreme Court of Canada is R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 [St-Cloud]. The Court noted at para. 59 that one of the factors to be considered in a release hearing is any defence raised by the accused, and that the judge presiding at the release hearing should, to the extent possible, also consider the strengths and weaknesses of the Crown’s position. The Court at paras. 68-71 made the following comments regarding the tertiary grounds:

68 Section 515(10)(c) could not be worded more clearly: it refers to “all the circumstances, including....” In my opinion, Parliament would have worded this provision differently (although I will not comment on the validity of such a wording) if it had intended a detention order to be automatic where the four listed circumstances weigh in favour of such an order. In fact, Parliament intended the opposite. As the Chief Justice stated in Hall, a justice dealing with an application for detention based on s. 515(10)(c) must consider all the relevant circumstances, but must focus particularly on the factors Parliament has specified: para. 41. The automatic detention argument also seems to be inconsistent with the following statement by the Chief Justice, at para. 41:

At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.

69 Moreover, the automatic detention argument disregards the fact that the test to be met under s. 515(10)(c) is whether the detention of the accused is necessary to maintain confidence in the administration of justice. The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision’s purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination. The argument that detention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515(10)(c) and with the purpose of that exercise.

70 Finally, it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception: Morales, at p. 728. To automatically order detention would be contrary to the “basic entitlement to be granted reasonable bail unless there is just cause to do otherwise” that is guaranteed in s. 11(e) of the Charter: Pearson, at p. 691. This entitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter (Hall, at para. 13). These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.

71 Although I will not set out an exhaustive list of the circumstances relevant to the analysis required by s. 515(10)(c) Cr.C., I think it will be helpful to give a few examples. Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might also take account of the fact that the trial of the accused will be held at a much later date.

[23] The defence relies on comments made by Nieckarz J. at para. 46 of the Keefe decision noted above. Nieckarz J. stated:

This does not mean I am concluding, as the Crown would invite me to do, that Mr. Keefe is not releasable. At this stage, given the facts, the evidence before me, the secondary ground concerns, strong tertiary grounds concerns, and keeping in mind the presumption of innocence and right to reasonable bail and the principle of restraint, I simply cannot conclude that Mr. Keefe is releasable on this particular plan or any reasonable modifications of it. This does not mean that Mr. Keefe will not be releasable at some point, particularly if disclosure and a significantly strengthened plan reveal material changes in circumstances that overcome the noted concerns. For the time being, I am satisfied that the continued detention of Mr. Keefe is necessary.

[24] Mr. Keefe argues that his plan has been significantly strengthened and that the additional evidence now obtained through the preliminary inquiry and disclosure process indicates that he has a strong argument of self defence. Further, Mr. Keefe points to another decision, R. v. Hubbard, 2022 ONSC 5936 [Hubbard], in which an accused with no criminal record who unquestionably stabbed another person causing their death was nevertheless released with only one surety.

[25] The Crown argues that Mr. Keefe has not met his onus. Denial of bail is necessary to maintain confidence in the administration of justice. The Crown’s case is strong and Mr. Keefe faces a serious charge with the possibility of a long period of incarceration.

Decision

[26] Considering all the circumstances of this case to date, the submissions of counsel, and the overarching principles of the presumption of innocence, Mr. Keefe has not satisfied me that his detention is no longer justified pending trial for the second-degree murder charge.

[27] As there is no issue of the need to detain on the basis of the primary grounds. I will now discuss the secondary and tertiary grounds.

The Secondary Grounds

[28] I was not persuaded by the evidence presented on this application that the bail plan presented by Mr. Keefe will prevent him from a substantial likelihood of committing a further criminal offence or interfering with the proper administration of justice. I am most concerned with the substantial likelihood that Mr. Keefe could interfere with the administration of justice by attempting to contact and influence witnesses in this matter.

[29] I say this as I am not confident in the ability of the proposed sureties to control Mr. Keefe. As submitted by the Crown, I agree Melissa and Jenifer are well meaning. However, based on their responses in cross examination, particularly Melissa, I do not believe they are sufficiently aware of the gravity of the undertaking they are proposing to do. In my view, Melissa is unrealistic in proposing to the court that her plans for either schooling or work for Mr. Keefe are practical. The strength of a bail plan has to be assessed in context of how reasonable the proposals made by the sureties are. I am concerned about Melissa’s statement in her affidavit that while Mr. Keefe was out of custody, he had never been diagnosed with any mental health issues. However, during the 911 call Mr. Keefe tells the operator he is having a panic attack. He then offers at approximately 4:58 in the call that he suffers from “a lot of anxiety and depression that I am supposed to be taking meds for it but I am not”. This appears to be inconsistent with the representation Melissa made to the court.

[30] Mr. Keefe is now taking Clonazepam. I understand this is anti-anxiety medication. Melissa says she will continue to ensure Mr. Keefe takes any prescribed medication if he is released. However, her apparent lack of knowledge of her son being previously on some kind of medication for anxiety and depression and the fact he was not taking the medication at the time the attack occurred, are cause for concern. I am concerned that inattention to this kind of detail may create a circumstance for Mr. Keefe to act compulsively in regard to people who have now testified against him and will again at trial. This leaves me with a concern that there is a substantial likelihood for Mr. Keefe to interfere with the administration of justice if he is released.

[31] I also take at face value Melissa’s assessment that the Clonazepam is causing Mr. Keefe to be lethargic, unengaged and at times drooling. These conditions call in to question Mr. Keefe’s ability to successfully attend school if released. They also give me pause when considering an assertion by Melissa that he would be a good candidate to join Melissa on a road construction crew once the season begins in May, if the trial does not proceed.

[32] I also took from some of the answers Melissa gave to questions about her criminal record to suggest that she is minimizing the seriousness of having been charged with impaired driving. Of course, people who complete criminal sentences are entitled to be treated as having a clean state. However, this leaves me with a concern that Melissa may not be inclined to involve the police if her son breaches, given how she did not strike me as being that concerned with the seriousness of the offence for which she was previously convicted.

[33] Also, the plan to use Jennifer to cover for Melissa because of her ability to work from home will not work if Melissa is proposing to take the router from the house every time she leaves. Jennifer has to be at work 3 days out of 5 and could not “work from home” very easily without internet access.

[34] I agree with the submissions of the Crown that the bail plan as proposed by Mr. Keefe does not meet the onus to address the secondary grounds.

The Tertiary Grounds

[35] Despite the able submissions of counsel for Mr. Keefe, I was not persuaded that the release of Mr. Keefe would not bring the administration of justice into disrepute.

[36] I disagree with the submission of counsel that the decision of Newton J. in Hubbard, has more persuasive reasoning than that of Nieckarz J. in her original decision in this matter. Hubbard can be distinguished in an important way that also sheds light on what I see as the apparent significant strength of the Crown’s case in this matter.

[37] In Hubbard, a drug transaction went wrong. A buyer attempted to rip off a dealer. The buyer in that case brought along the knife to the transaction. The dealer, Mr. Hubbard took the knife from the buyer and in the course of the melee, he stabbed the buyer.

[38] I see Hubbard as a fundamentally different self defence scenario than the one which appears to be presented by the allegations, which as I understand, have developed to date.

[39] Melissa and Jenifer both testified that there is some video of Mr. Cunningham beating up Mr. Keefe some time well prior to the assault. Melissa’s evidence in cross examination was that “it was in front of the whole school” (a high school), and that Mr. Keefe’s alleged beating was something of a serious event. Video or not, if this beating happened at some earlier point in time, Mr. Keefe nevertheless invited Mr. Cunningham to his home to “hang out”. Also, it appears from the preliminary inquiry evidence that there were no issues between Mr. Keefe and Mr. Cunningham until Mr. Keefe showed Mr. Cunningham something on his phone, which caused a fight.

[40] In my view, Mr. Keefe’s alleged statements as witnessed by Austin, “I got you”, do not place the self defence argument in as strong a light as defence counsel urged.

[41] I assess the Crown’s case as remaining particularly strong at this point. I see nothing new that changes the assessment of how the altercation between Mr. Keefe and Mr. Cunningham rapidly escalated. Mr. Keefe stabbed Mr. Cunningham. Once or twice. With a knife he had before the fight.

[42] I find that reasonably informed Canadians would see Mr. Keefe’s release as bringing the administration of justice into disrepute.

[43] For the reasons set out above, Mr. Keefe has not met his onus on this application. He will remain in detention until trial. Application dismissed.

[44] At the conclusion of the hearing, I reserved my decision and adjourned this bail application to the Regional Assignment court Monday, February 26, 2024 at 1:30 pm. That date is now unnecessary and is hereby vacated.

“Originally signed by”

The Hon. Mr. Justice F. Bruce Fitzpatrick

Released: February 7, 2024