Ontario Superior Court of Justice

Court File No.: CR-23-132-00
Date: 2025-02-04

Between

His Majesty the King
Applicants' Counsel: S. Crowe and S. McNaughton

- and -

Daniel Keefe
Respondent's Counsel: G. Joseph and M. Iwasiw

Heard: February 3, 2025, at Thunder Bay, Ontario
Justice: S.J. Wojciechowski

Direction on Use of the Third Video Clip

Background

[1] Evidence consisting of three video clips was determined admissible by Newton RSJ in a pre-trial decision dated April 4, 2024.

[2] Two video clips show the same incident involving a fight between Aiden Cunningham and Daniel Keefe, and is described by Newton RSJ as an “attack” in which Aiden Cunningham punches Daniel Keefe at least six times using full force and during which Daniel Keefe made no attempt to fight back.

[3] According to Newton RSJ, the third video clip shows Aiden Cunningham attacking another individual – not Daniel Keefe – and involves the victim of the attack being stomped on the head. This, too, is described by Newton RSJ as a “relentless attack”, and while Daniel Keefe was not party to the event captured in the third video, he was able to identify Aiden Cunningham as being the perpetrator of the attack.

Submissions on Admissibility

[4] Mr. McNaughton asked the court to consider how the third video clip could or should be introduced into evidence during the course of the trial. While Daniel Keefe can identify Aiden Cunningham on the third video clip, it is uncertain whether another witness can provide the same identification evidence. And, of course, whether Daniel Keefe provides any evidence in this trial remains to be seen.

[5] Mr. Joseph plans to play the video during the cross-examination of Austin Lemay-Menard, a close friend to Aiden Cunningham. It is anticipated that Austin Lemay-Menard will be able to identify Aiden Cunningham in the video clip, especially in light of the fact that the name “Aiden” is called out and clearly heard during the video clip three times during the attack.

[6] However, Mr. McNaughton properly raises the possibility that Austin Lemay-Menard may not be able to identify Aiden Cunningham on the video clip. Without identifying the attacker on the third video clip, its relevance to this case is called into question, especially if Daniel Keefe decides not to testify and provide identification evidence.

[7] If Aiden Cunningham is not identified as the attacker, then the video clip is not relevant, and the Crown takes the position that its case will be prejudiced by the fact that the video was played in front of the jury through a cross-examination in which Mr. Joseph will clearly suggest the attacker as being Aiden Cunningham.

[8] Mr. Joseph’s position is that should Austin Lemay-Menard not identify Aiden Cunningham on the third video clip, then his plan would be to call Daniel Keefe in order to do so. Of course, whether Daniel Keefe takes the stand in his own defence is up to Daniel Keefe to decide, and I accept Mr. McNaughton’s point that even in the face of Mr. Joseph’s proposed plan, there is no guarantee that this will, in fact, occur. Mr. Joseph then adds that should Daniel Keefe not take the stand and identify Aiden Cunningham in the third video clip, the jury can be provided with an instruction with respect to this video clip.

Jury Instruction and Prejudice

[9] The obvious concern here is whether or not the jury can unsee what they have already seen, and whether the impact of the video without identifying Aiden Cunningham would create prejudice which could not be overcome by a properly worded jury instruction.

[10] I am certainly alive to the impact various forms of media, including pictures or videos, have upon individuals. The third video clip does show someone getting viciously assaulted by another individual, and if the attacker is identified as Aiden Cunningham, then the impact of the video clip upon the jury could significantly factor into their deliberations.

[11] So what if Aiden Cunningham is not identified by the evidence tendered during this trial? How might the jury be impacted by this video if the attacker is suggested to be Aiden Cunningham but his identity is not confirmed? And in this situation, can a properly worded instruction to the jury be effective in removing a consideration of the third video clip in their deliberations?

[12] After considering this issue, I have concluded that a properly instructed jury would be able to ignore what they saw in the third video clip if no one identifies Aiden Cunningham as the attacker. It has been my experience in dealing with jury panels that they listen carefully to instructions which are provided and are quite capable and willing to abide by those instructions.

[13] Chief Justice Dickson in the case of R. v. Corbett, [1988] 1 S.C.R. 670, spends a lot of time considering the introduction of evidence before a jury with accompanying limiting instructions from the trial judge, and whether the interests of justice are best served in some instances by simply not letting the jury hear the evidence. I read his decision to support the proposition that juries are well equipped to do what they are told they can and cannot do with the evidence which is presented during a trial. It is inherent in the fundamental right to trial by a jury that jurors have the capacity to follow the explicit instructions of the trial judge. That is borne out by the countless number of appeals which focus on errors in jury charges since it is assumed that these alleged errors were wholeheartedly adopted and followed by the jury rendering the verdict. If juries were not prone to following instructions, then errors in the charge would not be the ripe ground that they are for appeals.

[14] I am confident that if the third video clip is played, and Aiden Cunningham is not identified in evidence by either Austin Lemay-Menard nor Daniel Keefe, that I will be able to provide an instruction to the jury, which they will follow, excluding consideration of the third video clip in their deliberations.

Conclusion

[15] Mr. Joseph shall be allowed to use the video clip in his cross-examination of Austin Lemay-Menard.

“original signed by”

S.J. Wojciechowski

Released: February 4, 2025