Reasons on Sentence
Court File No.: CR-23-0132-00
Date: 2025-04-16
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Daniel Keefe, Accused
Appearances:
S. McNaughton & S. Crowe, for the Crown
G. Joseph & M. Iwasiw, for the Accused
Heard: March 28, 2025, Thunder Bay, Ontario
Justice: S. J. Wojciechowski
Overview
[1] On June 25, 2022, Daniel Keefe had invited Aiden Cunningham to his home during the afternoon to smoke weed and play video games. At some point in the afternoon, Austin Lemay-Menard joined them, but shortly after his arrival, he and Aiden Cunningham decided to leave.
[2] As Aiden Cunningham was getting ready to leave, an exchange between him and Daniel Keefe led to Daniel Keefe sharing text messages on his phone with Aiden Cunningham. The content of these text messages led to an altercation which resulted in the death of Aiden Cunningham.
[3] Daniel Keefe used a knife during his fight with Aiden Cunningham to stab him twice, with one of the knife wounds penetrating Aiden Cunningham’s heart. After realizing that he had been stabbed, Aiden Cunningham left Daniel Keefe’s residence, and died outside shortly thereafter.
[4] Daniel Keefe stood trial in front of a jury which, after a day and a half of deliberations, found him guilty of second degree murder.
[5] A finding of second degree murder carries with it a life sentence, subject to a period of parole ineligibility which cannot be less than 10 years nor more than 25 years.
[6] The Crown and counsel for Daniel Keefe both agree that the period of parole ineligibility in the circumstances of this case should be set at the minimum period of 10 years. Both counsel also agree as to the ancillary orders which should flow from the jury’s decision.
[7] These reasons will set out those principles and other factors I have taken into account while considering the joint submission provided during the sentencing hearing.
The Facts
Circumstances of the Offence
[8] Daniel Keefe and Aiden Cunningham knew each other as they had both attended the same high school and were the same age.
[9] From the evidence of Austin Lemay-Menard, it appears that the altercation between Daniel Keefe and Aiden Cunningham in the entranceway to Daniel Keefe’s house lasted no more than 30 seconds, shortly after which Aiden Cunningham succumbed to his injuries.
[10] According to the 911 call made by Daniel Keefe following the incident, his account of what happened included that he was attacked and did not want to hurt anyone. Daniel Keefe told the 911 operator that he had a knife in his pocket because Daniel Keefe had been attacked in the past, and he was scared of it happening again.
[11] Despite the evidence from the 911 call, the jury did not accept Daniel Keefe’s position that he acted in self defence at the time, and clearly endorsed the position taken by the Crown that stabbing someone twice in the chest with a knife was reckless without regard to the serious harm and probable death the stabbing could cause.
Circumstances of the Offender
[12] No pre-sentence report was requested by counsel, so I only have their submissions by way of factual background.
[13] In considering the circumstances of Daniel Keefe, he was a young male, barely 18 years old at the time of the murder. He did not have any past criminal history, and the violent encounter with Aiden Cunningham was seemingly out of character for him.
Impact upon the Victim and Community
[14] A number of powerful victim impact statements were introduced and read during the sentencing hearing.
[15] Individuals close to the family of Aiden Cunningham, as well as relatives, spoke to the loss caused by Aiden Cunningham’s untimely death. The opportunities for him to obtain an education, explore career options and contribute to the community and his family have been lost. Those who looked to him for friendship, or as a role model, have been robbed of someone who they could count on and be there in their times of need. He will not get married, have a family, and will never experience the joy of being a parent and share that joy with his friends and family.
[16] Particularly poignant were the victim impact statements from Aiden’s grandmother, grandfather, and of course his mother. Aiden was loved and cherished by his family, and his death has ripped a huge hole in their lives, one which will likely never be repaired. All three of these close family members commented on the senselessness of this loss, a murder of a young man in his prime whose hopes and dreams will never see fruition. The sudden and tragic loss will always weigh heavily on them. And the depth of the endless sorrow caused to Aiden’s mother, Ashley, is immeasurable and infinite without the hope of any reprieve.
Legal Parameters
[17] Section 235(1) of the Criminal Code provides that anyone who commits second degree murder shall be sentenced to life imprisonment. This means that the sentence imposed upon such a person found guilty is that they will spend the rest of their life in prison, or until a parole board decides that they are deserving of parole.
[18] Section 745(c) of the Criminal Code mandates that anyone convicted of second degree murder shall not be eligible for parole until that person has served at least 10 years of the life sentence, or a greater amount of time not to exceed 25 years. In other words, the only function of a court following a second degree murder conviction is to determine the point in time in the future when the person convicted may apply for parole. Whether or not parole is granted is not a decision of this court. The only issue a court can decide is the minimum time period a person must remain in jail until an application for parole can be made.
[19] In terms of sentencing considerations with respect to the period of parole ineligibility, the Criminal Code states in section 745.4 that the court may consider the character of the offender, the nature of the offence, the circumstances surrounding its commission, and any recommendations made by the jury.
[20] The jury which found Daniel Keefe guilty of second degree murder, provided its recommendations pursuant to section 745.2 of the Code. Five jurors recommended parole ineligibility for a period of 10 years, while seven recommended that Daniel Keefe be precluded from applying for parole until he had served 15 years of his life sentence.
Positions of Crown and Defence
[21] Both the Crown and the Defence submit that a life sentence with parole ineligibility for 10 years is the appropriate sentence.
[22] The Crown advised it respected the recommendations of the jury, five members of which decided 10 years was sufficient, while the remaining seven recommended 15 years of parole ineligibility. However, based upon the age and lack of criminal record of Daniel Keefe, the Crown submitted that the appropriate amount of time Daniel Keefe should serve before he can apply for parole should be 10 years.
[23] The Crown also submitted that the following ancillary orders would be in order:
- a section 109 order prohibiting Daniel Keefe from possessing firearms or weapons for the rest of his life;
- a DNA order on the primary designated basis pursuant to section 487.04(a) of the Code; and
- an order for non-communication with a number of designated persons while Daniel Keefe is in custody.
[24] Given the sentence requested, the Crown submitted that the victim fine surcharge be waived. Also, the Crown seeks a forfeiture order for the knife which was seized, however, the cell phone which was taken from Daniel Keefe can be returned.
[25] Mr. Joseph, counsel for Mr. Keefe, agreed with the Crown position, stating that nothing in the circumstances of this case or the offender, Daniel Keefe, supports a period of parole ineligibility for more than 10 years. He also acknowledged that no sentence which is imposed will accurately reflect the torment that the loss of Aiden Cunningham has caused, and that none of the resulting anguish will be eased by whatever sentence is imposed. As such, he submitted that an appropriate sentence be crafted based on reason and jurisprudence which is what the 10 year period of parole ineligibility does.
[26] Mr. Joseph also concurred with the Crown’s position on the ancillary orders, the forfeiture order, and the waiver of the victim fine surcharge.
Case Law
[27] In the case of R. v. Anthony-Cook, 2016 SCC 43, para 34, the Supreme Court of Canada at para. 34 makes it clear that where counsel for the Crown and the defence agree on sentence parameters, a court shall only reject their submissions if they are so unhinged from the circumstances of the offence its acceptance would lead reasonable persons to believe that the proper functioning of the justice system had broken down. While Anthony-Cook was a decision which reflected the result following a guilty plea, I nonetheless adopt the Supreme Court’s direction in considering the submissions presented to me by the lawyers who know more about the factual and legal issues inherent in this case than anyone else in this courtroom.
[28] During submissions, counsel for Daniel Keefe referred me to the case of R. v. Wesley, 2025 ONCA 51, in which the youthful nature of the offender is described as being just three months past his 18th birthday. The Court of Appeal mentioned this in the context of another section in the Criminal Code which provides that those individuals who have not reached their 18th birthday but sentenced to life imprisonment following a second degree murder conviction are subject to a parole ineligibility period of seven years.
[29] In the case before me, the murder of Aiden Cunningham was committed when Daniel Keefe was two months past his 18th birthday.
[30] The Wesley case also makes it clear that courts are to account for the circumstances of a youthful first-time offender when considering sentencing.
[100] Youth is a mitigation factor in sentencing. . . . when sentencing youthful first-time offenders, judges must practice restraint, prioritize rehabilitation and account for immaturity, which might mitigate culpability even when it does not excuse the offence.
[31] In considering the appropriate period of parole ineligibility, the Supreme Court of Canada decision in R. v. Shropshire, [1995] 4 S.C.R. 227, provides additional direction.
[32] The general rule in a case of second degree murder is that the period of parole ineligibility shall be for a period of 10 years, however it would not be unusual for courts to extend this period. The sliding scale of parole ineligibility was Parliament’s attempt to recognize that within the circumstances of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability.
[33] The discretion provided to judges allows these factors to be considered, and any aggravating factors, if they exist, will drive upwards the period of parole ineligibility. But judges are to start from the proposition that unless there are unusual circumstances the sentence must be the statutory minimum of 10 years.
Mitigating and Aggravating Factors
[34] Based on the evidence and submissions of counsel, there were no aggravating factors presented for my consideration in the sentencing of Daniel Keefe.
[35] It is true that he was carrying a knife with him at the time of the altercation with Aiden Cunningham. The evidence of Austin Lemay-Menard suggests that the knife was not used before the fight started, or that the wielding of the knife somehow instigated the fight between Daniel Keefe and Aiden Cunningham.
[36] There was no evidence suggesting that the fight was planned, or that this was an event deliberately concocted by Daniel Keefe. No evidence suggests that Daniel Keefe had laid out a plan to entice Aiden Cunningham into a fight, or that he was planning all along to use the knife in his pocket.
[37] The fact that Daniel Keefe possessed a knife at the time perhaps speaks to the immaturity which the Supreme Court of Canada addressed in the Wesley decision. Surely had Daniel Keefe rationally reflected on his decision to carry a knife, he would not be here today facing a sentence of life imprisonment.
[38] The evidence before me is that Daniel Keefe was barely 18 years old and that he had not had any run-ins with the law before June 25, 2022. These are mitigating circumstances which the Supreme Court of Canada has directed judges to consider and take into account, supporting an approach to sentencing where the prospect of rehabilitation is prioritized.
Principles of Sentencing
[39] Section 718 of the Criminal Code sets out the following principles and objectives of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. to deter the offender and other persons from committing offences;
c. to separate offenders from society, where necessary;
d. to assist in rehabilitating offenders;
e. to provide reparations for harm done to victims or to the community; and
f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[40] Denouncing unlawful conduct, also known as the principle of denunciation, refers to public condemnation of the criminal behaviour.
[41] The principle of deterrence reflects a message to be sent to the offender and to the community that breaking the law by committing a crime of this nature will attract punishment and consequences. The hope is to deter the offender and others from further breaches of the law.
[42] Section 718.1 requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. In other words, the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the harsher the sentence will be: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
[43] Further sentencing principles that must guide the court are set out in s. 718.2 of the Criminal Code.
[44] Section 718.2(a) requires that a sentence be increased to account for any aggravating factors or reduced to account for any mitigating circumstances. Aggravating circumstances generally tend to make the offence more troubling while mitigating circumstances moderate the severity of the offence.
[45] Section 718.2(b) directs that sentencing of an individual should reflect what other similar offenders received as a sentence in similar circumstances.
[46] Section 718.2(d) requires restraint in sentencing, acknowledging that sentences are not only intended to be punitive, but also remedial.
Reasons
[47] In this situation, the sentence imposed is not subject to any discretion. Daniel Keefe will be sentenced to life imprisonment. And built into this sentence is the requirement that he serve a minimum of 10 years in a detention center before he can be considered for parole.
[48] My only decision within the context of this sentencing hearing, is to decide if Daniel Keefe should be barred from applying for parole for a period more than 10 years. The law allows me to increase the minimum period of 10 years to a maximum of 25 years. But the law is also very clear that absent unusual circumstances or aggravating factors, the appropriate sentence should reflect the statutory minimum of 10 years.
[49] Based upon the joint submission of counsel, the mitigating factors of Daniel Keefe’s age and the fact that he has no criminal record, the absence of aggravating factors, and considering the relevant case law, the provisions of the Criminal Code, as well as the recommendations from the jury, I agree with Crown counsel that in all the circumstances, a period of parole ineligibility of 10 years is appropriate.
[50] I was also requested by counsel to set out in my reasons a calculation of the Summers’ Credit for reference by a future parole board.
[51] Daniel Keefe has been detained since he was arrested and charged on June 25, 2022, which means he has been in custody for 33.75 months, which is equivalent to 50.6 months, or 51 months rounding up, when applying the Summers’ Credit.
Final Decision
[52] After considering all relevant factors and principles of sentencing, both in general and specifically with respect to Daniel Keefe, Daniel Keefe has been found guilty of second degree murder and sentenced to imprisonment for life. And it is this court’s decision that Daniel Keefe shall not be eligible for parole until he has served 10 years of his sentence.
Ancillary Orders
[53] The following ancillary orders shall issue:
- a section 109 order prohibiting Daniel Keefe from possessing firearms or weapons for the rest of his life pursuant to section 109 of the Code;
- Daniel Keefe shall provide a DNA sample pursuant to section 487.04(a) of the Code;
- Daniel Keefe shall not communicate with the following persons while he is in custody:
- Ashley Cunningham
- Shelley Degagne
- Mark Degagne
- Kyle Cunningham
- James Cunningham-Marlowe
- Shawn Plourde
- Jaylie Plourde
- Katlyn Plourde
- Austin Lemay-Menard.
[54] The victim fine surcharge shall be waived.
[55] An order for forfeiture as requested by the Crown with respect to the knife which was seized shall issue.
“original signed by”
S. J. Wojciechowski
Released: April 16, 2025