Defence Motion for Directed Verdict

Court File No.: CR-23-132-00
Date: 2025-02-06
Ontario Superior Court of Justice
Between:
His Majesty the King
S. Crowe and S. McNaughton, for the Crown
and
Daniel Keefe
G. Joseph and M. Iwasiw, for the Accused

Heard: February 5, 2025, at Thunder Bay, Ontario
Justice: S.J. Wojciechowski

Introduction

[1] On behalf of the accused, Daniel Keefe (“Keefe”), Mr. Joseph brought a motion at the conclusion of the Crown’s case for a directed verdict of acquittal on the second degree murder count, taking the position that only manslaughter should be put to the jury.

[2] Mr. Joseph submitted that there are no inferences arising from the evidence introduced by the Crown which could be put to the jury and which would support a finding that Daniel Keefe was guilty of the second degree murder of Aiden Cunningham.

[3] Mr. McNaughton, on behalf of the Crown, took the position that there are a number of reasonable inferences which could be drawn from the evidence which, if accepted by the jury, could support a conviction of second degree murder. There may be many other inferences arising from the evidence, but if the inferences most favourable to the Crown are capable of supporting a finding of guilty beyond a reasonable doubt, then the second degree count should go to the jury for determination.

Background

[4] The trial in this matter commenced on Monday, February 3, 2025, with the selection of a jury. After my introductory remarks to the panel, and the openings of the Crown and Defence, evidence was introduced by the Crown through a number of exhibits and three witnesses.

[5] Exhibit 1 was a Joint Exhibit Book which includes:

• Admissions per s. 655 of the Criminal Code
• A series of photographs which have not yet been discussed by any witness but are agreed to show the interior and exterior of 113 Crown Street, Thunder Bay, Ontario
• Seven autopsy photographs of the deceased, Aiden Cunningham (“Cunningham”)
• The youth record with respect to Cunningham

[6] The Crown witnesses who provided evidence were Austin Lemay-Menard, who was the best friend of Cunningham; Constable Daniella Pietrobelli, who arrested Keefe; and Dr. Nicholas Escott, the forensic pathologist who conducted the autopsy of Cunningham.

[7] Without adhering to the order in which the evidence was introduced, here is a summary of what was presented to the jury by the end of the Crown’s case.

Austin Lemay-Menard

[8] Austin Lemay-Menard (“Lemay-Menard”) considered Cunningham to be his best friend on June 25, 2022. Lemay-Menard and Cunningham had been close for approximately 8 years before the incident of June 25, 2022, much closer than Lemay-Menard and Keefe who were mere acquaintances for a period of less than 2 years.

[9] On June 25, 2022, at approximately 5:00 p.m., Lemay-Menard ended up walking to Keefe’s house located at 113 Crown Street, Thunder Bay, Ontario to meet up with Cunningham and Keefe. While Lemay-Menard had been playing video games that afternoon, Cunningham texted him to come over to Keefe’s house where Keefe and Cunningham were hanging out. So Lemay-Menard attended Keefe’s house, and after texting Cunningham that he was there, Keefe came to the front door to let him in.

[10] While at Keefe’s house, everything was cordial. Upstairs on the second floor of the home, Keefe, Lemay-Menard and Cunningham played video games, watched YouTube videos, and smoked weed. Everyone got along, were laughing, and enjoying themselves.

[11] Around 15 or 20 minutes into the visit, Lemay-Menard recalls Keefe stating that his aunt was coming home, and because he was only allowed one friend at a time when no adults were around, Keefe told Cunningham and Lemay-Menard that they were going to have to leave. Both Cunningham and Lemay-Menard were fine with leaving, and Keefe walked them downstairs to the front door.

[12] After getting his shoes on, Lemay-Menard exited the house first, waiting on the porch for Cunningham to follow. While Lemay-Menard was not paying particular attention to what was happening inside the home between Cunningham and Keefe, Lemay-Menard remembers Keefe showing something on his phone by handing it to Cunningham, and then Cunningham returning the phone to Keefe.

[13] At that point or shortly thereafter, Keefe and Cunningham got into an argument about a girl and started to fight, throwing punches at each other in the hallway near the staircase and wrestling against the wall. Lemay-Menard did not get involved because whatever was going on was not his issue and there was no reason for him to get involved.

[14] The fight lasted either 15, 25, or 30 seconds, according to Lemay-Menard’s evidence. Once Keefe and Cunningham stopped fighting, Cunningham exited the home and was all hyped up, with blood on the front of his shirt which was ripped. Cunningham said something like “Oh fuck, I’m bleeding”, and/or “I fucked up and got stabbed”.

[15] Immediately after Cunningham left the house, Keefe was at the front door, and yelled “Don’t you ever try to punch me” or “Don’t you ever try to fight me”, and “I got you. I fucking got you.” Keefe remained at the front door, did not chase after Lemay-Menard or Cunningham as they left the property, and stayed inside his home.

The 911 Call

[16] Very shortly after Lemay-Menard and Cunningham left the house, and after Keefe’s comments, he shut and locked the front door, returned to the second floor of his house where all of them had just been playing video games, and called 911.

[17] The 911 call was recorded and played for the jury.

[18] The contents of the 911 call include the following statements made by Keefe:

• “I’ve just been attacked and I defended myself with a knife”
• When asked who stabbed him, he corrected the 911 operator and told her “I defended myself with the knife and I was being attacked in my house”
• “It was unprovoked”
• “I was literally attacked and then I defended myself with a knife”
• “He attacked me I didn’t want to hurt him”
• “I just didn’t want to get hurt”
• When asked by the 911 operator if both the male and his friend were going to attack him, Keefe said “Yes”, and “they were getting ready to attack me” and “I was being attacked by both of them”
• When Keefe was asked where the knife was, he said “I had a knife in my pocket because these people have attacked me in the past”
• “I didn’t want to do it” and “I was just defending myself”
• “I was just scared” and “I’m scared”
• When asked about the front door and whether it was locked, Keefe replied: “I’m scared they’re going to be there” and “I’m scared they might come back”
• When asked if he was injured, Keefe stated that his hand had a “little weird red bubble on it”, that his neck really hurt as well as under his armpit, that his lip was busted, he had a headache, and “my wrist is really messed up”

Constable Daniella Pietrobelli

[19] When asked questions about her involvement in this matter, Constable Pietrobelli confirmed that she was the officer who attended at Keefe’s house and took him into custody. She confirmed in chief that Keefe was very cooperative, followed directions and was arrested without incident. Because of concerns regarding his right wrist which was thought to be broken, he was taken by EMS to the emergency department of the Thunder Bay Regional Health Sciences Centre.

[20] During her encounter with Keefe, Constable Pietrobelli did not notice any trauma to Keefe’s face. But she admitted on cross that in addition to the apparent wrist injury, Keefe was panicky, nervous, and appeared to be suffering from a panic attack.

Dr. Nicholas Escott

[21] Dr. Escott is a forensic pathologist who has examined deceased persons in order to determine their cause of death for over 40 years. The opinions he expressed concerned the cause of death and the interpretation of the injuries found on Cunningham’s body.

[22] Dr. Escott noted two stab wounds on the left hand side of Cunningham’s torso, located approximately halfway between his left nipple and his belly button. The first one, located closer to Cunningham’s chest and his left arm, was 9 centimetres in length and penetrated Cunningham’s heart. The second, located down and closer to the centre of his torso, was not as deep, and while made in the direction of Cunningham’s liver, no organs were impacted by the knife that caused this wound.

[23] Dr. Escott admitted that he did not know which of the stab wounds occurred first. He also could not provide an opinion as to the time period which elapsed between the first stab wound and the second.

[24] There were a number of abrasions noted on Cunningham’s face and forehead, but no bruises. Bruises were noted on Cunningham’s chest – caused by surgical efforts to stop the internal bleeding caused by the knife wound – as well as his left elbow.

[25] The cause of death was the stab to the heart which caused irreparable blood loss. The second stab wound which travelled in the direction of his liver did not cause nor contribute to the death of Cunningham.

The Law

[26] The test for a directed verdict is found in United States v. Shephard, [1977] 2 S.C.R. 1067, which held at p. 1080 that a judge is “required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.”

[27] The evidence must be viewed as a whole, including circumstantial evidence: see R. v. Womack, 2020 ONSC 72, para 19. Credibility of the witnesses is not to be assessed as part of the court’s consideration.

[28] In R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 161, the court stated the following:

Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact.

[29] This test insofar as weighing the evidence is further discussed in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, para 1:

This appeal raises the question of whether a preliminary inquiry judge may “weigh the evidence” in assessing whether it is sufficient to warrant committing an accused to trial. For the following reasons, I reaffirm the well-settled rule that a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict, and the corollary that the judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. As this Court has consistently held, this task does not require the preliminary judge to draw inferences from the facts or to assess credibility. Rather, the preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty.

[30] Arcuri also confirms at para. 21 that the issue before a preliminary inquiry judge is the same as the issue which a judge must address when considering a defence motion for a directed verdict. Referencing Shephard, the issue is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”. A directed verdict shall not be granted “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”: see Shephard, at p. 1080. In addition, the court in Arcuri, at para. 23, stated the following:

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[31] Further discussion of the relevant test is set out in R. v. Jama, 2023 ONSC 2375, para 79, where Schrek J. summarizes the principles applicable to consideration of a directed verdict:

The inferences the Crown seeks to have drawn need only be reasonable. They need not be easily drawn, likely or probable. However, the burden of proof must be kept in mind and the evidence must be capable of supporting not simply an inference of guilt, but guilty beyond a reasonable doubt.

[32] And then at paras. 84–85, Schreck J. considered the distinction between reasonable inference and speculation and conjecture:

84 On an application for a directed verdict in a circumstantial case, the ultimate goal is to determine whether the essential elements of the offence at issue can be reasonably inferred from the whole of the evidence, when viewed most favourably to the Crown. . . .

85 An inference “must flow logically and reasonably” from the facts, or else it is “condemned as conjecture and speculation”. There is a difference between an inference that “flows logically and reasonably” from the facts and a hypothesis that is simply consistent with the facts . . . The inference must be one that can be reasonably and logically drawn and, even where difficult, it cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps.

[33] These principles are to be considered in the context of the second degree murder charge. In order to establish second degree murder, a properly instructed jury would have to consider evidence and make three findings:

a) Keefe caused the death of Cunningham;
b) Keefe caused the death of Cunningham unlawfully; and
c) Keefe had the requisite state of mind for murder.

[34] There is no dispute that Keefe caused the death of Cunningham, and this element has been established.

[35] In terms of whether the death was caused unlawfully, this issue is not part of the consideration in this motion. The position of Keefe is that he acted in self defence, and there is some evidence on this point set out within the 911 call. However, the self defence issue is not central to this motion for a directed verdict. What is central, according to the Defence, is that the evidence does not support an inference that Keefe had the necessary state of mind to be convicted of second degree murder.

[36] In exploring the state of mind necessary to establish second degree murder, the jury will have to determine whether Keefe intended to kill Cunningham, or alternatively, whether Keefe meant to cause bodily harm to Cunningham that Keefe knew was so serious and dangerous it would likely kill Cunningham and, despite this knowledge, Keefe nonetheless proceeded in that fashion.

[37] In his submissions, Mr. Joseph explained the difference between general intent offences and specific intent offences. The Defence submitted that second degree murder is a specific intent offence, with which the Crown agreed. In characterizing the nature of the specific intent associated with second degree murder, Mr. Joseph submitted that the Crown had to prove that either Keefe meant to kill Cunningham, or that he meant to cause bodily harm which would likely kill Cunningham and was reckless as to whether Cunningham died or not. I accept this characterization of the mens rea necessary to support a conviction for second degree murder.

[38] The issue of intention is discussed in R. v. Reed, 2022 ONSC 2159, para 57:

In considering the issue of Andre’s intention, it is somewhat rare to see direct evidence of that intention. Instead, intention is frequently inferred from circumstantial evidence, using the “common sense inference” that a person intends the natural and probable consequences of his or her actions. Here, stabbing someone in the back of the neck with a large knife could support the inference that Andre intended to kill Grant. It is common knowledge that the neck contains the spine and spinal cord, as well as major blood vessels that feed the brain. Severing either or both could lead to the natural and probable consequence of the death of a victim.

[39] Platana J. in R. v. Carambetsos, [2002] O.J. No. 697 (S.C.J.), made some observations about the intentional element of second degree murder. At para. 5 of his decision the reasons of the preliminary hearing judge are set out, which ultimately Platana J. accepts:

The nature of the assault makes it easy for the trier of fact to infer that the assailant had to intend to kill or had to know that the severity of the injuries he was inflicting was likely to cause death.

[40] And then at para. 11, Platana J. points out that evidence of words uttered can demonstrate whether an inference can be drawn that there was an intent to kill the deceased.

[41] Finally, in relying upon the case of R. v. Seymour, [1996] 2 S.C.R. 252, para 18, Platana J. makes the point that whether a person intends the natural and probable consequences of his or her voluntary acts is an inference which may be drawn, but is not required to be drawn, by a jury.

[42] In assessing the intentional element, I have been asked to consider what Keefe did or did not do, how he did or did not do it, and what he said or did not say. This evidence may be considered in determining whether Keefe meant to cause bodily harm to Cunningham which would likely result in his death.

Position of the Defence

[43] Mr. Joseph submits that the 911 call provides the best evidence of Keefe’s intention since it was made proximate in time with the altercation between his client and Cunningham. Listening to that 911 call does not reveal any statements by Keefe that he hoped Cunningham would die, or that he intended to hurt him. Mr. Joseph argues that multiple utterances say exactly the opposite.

[44] These include Keefe’s statement that Cunningham attacked him, that Keefe did not want to hurt Cunningham, that Keefe was scared and did not want to go to the front door in case Cunningham and Lemay-Menard were still there.

[45] Mr. Joseph submits that the statements made during the 911 call point away from any intent or meaning to kill, and instead show Keefe’s desire for self-preservation. This is further confirmed by Keefe’s tone of voice as heard on the 911 call, one of anxiety, fear, and panic, which accorded with the evidence of Constable Pietrobelli.

[46] Mr. Joseph also argues that Keefe did not know the degree of harm he caused and did not want to cause the harm that resulted. The two stab wounds were delivered in the context of a short altercation which took place in the entrance area of Keefe’s home, and it cannot be said that stabbing a person would necessarily cause bodily harm that could likely cause death. The evidence from Dr. Escott supports this proposition, in that one of the wounds did not cause nor contribute to Cunningham’s death. All stab wounds are not fatal.

[47] In addressing the more contemporaneous utterance of Keefe, made to Cunningham and Lemay-Menard immediately upon the altercation being over, Mr. Joseph submitted that these comments had to be considered contextually.

[48] What did Keefe mean when he said: “I got you. I fucking got you.”

[49] It is possible that he was telling Cunningham that he used his knife to stop the attack. He could have meant that Cunningham got the worse of the fight. But it cannot raise an inference that Keefe hoped Cunningham would die or that Cunningham was going to die as a result of the altercation.

The Crown’s Position

[50] While there may be competing inferences to be drawn from the evidence, those which are favourable to the Crown’s position must be considered in assessing whether, if accepted, they could lead to a conviction of second degree murder. If the evidence points in two directions, one towards reasonable doubt and one which is reasonably capable of supporting a guilty finding, then the motion for a directed verdict should fail.

[51] The Crown’s review of the evidence suggests that it is not clear whether Cunningham was the aggressor. Lemay-Menard’s evidence was that Keefe and Cunningham were mad at each other, and while cross examination attempted to challenge that assertion, at the end of the day that is a finding of fact which the jury should be asked to make.

[52] Mr. McNaughton submitted that there was evidence which could reasonably lead to the inference that Keefe intended to cause bodily harm which was likely to cause Cunningham’s death and that Keefe was reckless as to whether death ensued.

[53] In support of his argument, Mr. McNaughton recognized that out of the two stab wounds, only one was fatal. However, would Keefe have known that stabbing Cunningham in the chest or torso with a knife would likely cause bodily harm? And knowing what is in the chest cavity – lungs, a heart, stomach, liver and other vital organs – would a stab wound to the chest or torso be likely to cause death? Given our health care system and our access to the same, there are times when death does not result from a stabbing. So, death may not be certain, but it is definitely likely.

[54] The Crown maintains that this likelihood was increased by the fact that there was not just one stab wound, but two.

[55] In terms of utterances, the Crown maintains that the 911 call is evidence that should be weighed by the jury. Keefe states during the call that both Cunningham and Lemay-Menard were attacking him, but the evidence from Lemay-Menard suggests that this was not the case, and only Cunningham was involved in the altercation with Keefe. How this contradictory evidence in the 911 call will impact the other statements of Keefe within the same call is something the jury should be permitted to decide.

[56] With respect to the “I got you, I fucking got you” utterances, while Mr. Joseph submitted that there were interpretations which would not support any intention on the part of Keefe, Mr. McNaughton suggests a reasonable inference from this utterance is that Keefe meant “I killed you”, or “I took you out”, or “I put you down”. This inference is more reasonable in light of the overall context of the statement, which was made following a fight that occurred when Keefe was carrying a knife which was available in case he needed to use it.

Decision

[57] In considering the reasonable inferences which result from a review of the evidence, I am cognizant of and repeat the comments of Schreck J. in Jama where he stated:

An inference “must flow logically and reasonably” from the facts, or else it is “condemned as conjecture and speculation”. There is a difference between an inference that “flows logically and reasonably” from the facts and a hypothesis that is simply consistent with the facts . . . The inference must be one that can be reasonably and logically drawn and, even where difficult, it cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps.

[58] Are there inferences which do not rely on speculation or conjecture which could arise and support a second degree murder conviction?

[59] Based upon these reasonable inferences, could a jury, properly instructed, convict Keefe on each of the elements of the offence?

[60] Central to this determination is the intentional element of second degree murder, and whether Keefe meant to kill Cunningham, or if he meant to cause bodily harm which would likely kill Cunningham and was reckless whether Cunningham died or not.

[61] There are a number of reasonable inferences, based upon the evidence introduced to date, which lead me to the conclusion that evidence exists which could be put to the jury such that they could find that Keefe intended to cause bodily harm likely to kill Cunningham and was reckless as to whether or not he actually died.

[62] First, Keefe was carrying a knife before the altercation with Cunningham because he had been attacked by “these people” in the past. It is an available inference that Keefe was anticipating an altercation, and if something happened, he planned to use the knife as a weapon during the altercation.

[63] I agree with the Crown’s contentions that if one uses a knife in a physical altercation, and during that incident stabs someone in the chest or abdomen – not an arm, not a thigh or a leg, but somewhere in the area of one’s torso – it is a reasonable inference that the intention is not simply to cause pain in order to defuse the altercation. The bodily harm which the knife would likely cause – which in this case resulted in a 9 cm wound into the heart – would almost certainly penetrate into a vital organ. The evidence led thus far does not reasonably infer that the knife was used to warn Cunningham to back off, and after the warning did not deescalate the situation, lead to the result that Keefe had to defend himself by stabbing Cunningham. There were no defensive wounds noted in the autopsy. And while it is possiblethat the non-lethal wound was “a warning”, it is just as reasonable that, based upon the evidence of Dr. Escott, the fatal blow was the first stab committed by Keefe.

[64] One version of Lemay-Menard’s evidence is that both Cunningham and Keefe were mad at each other and both were equally engaged in the altercation. While Cunningham could have been the aggressor, it is open to the jury to find that this was not the case and instead find that both Keefe and Cunningham began to fight each other over whatever information was shared on Keefe’s phone.

[65] I agree that there is no evidence to suggest that Keefe had the knife, took the knife out, and stabbed Cunningham before the altercation began. This would have been affirmative evidence of some intention. But Keefe had a knife with him, which was accessible in case an altercation ensued, presumably intending to use it should he get involved in a fight with Cunningham or Lemay-Menard. A reasonable inference is that he intended to use the knife to cause bodily harm to Cunningham, and by the very nature in which the knife was used – stabbing Cunningham in the chest two times – it is open to the jury to find that the bodily harm he intended to inflict would likely mortally wound Cunningham.

[66] In terms of the 911 call, while this was made shortly after the incident, the utterances of Keefe to Cunningham and Lemay-Menard while standing at the front door were more contemporaneous with the altercation. These utterances of Keefe give rise to a reasonable inference that he knew he had stabbed Cunningham, and that he had carried out his plan which started with securing a knife on his person. Keefe does not express any remorse over what had just happened, or any sentiment that stabbing Cunningham twice, in the chest, was an accident. His statements could be reasonably inferred to mean “mission accomplished”, without any regard as to the likely outcome of his actions.

[67] Whether or not this is what a twelve-person panel of jurors would determine happened is not something which this court can predict. But based upon the evidence, while the Defence has its perspective on how the puzzle pieces fit together, the Crown has a basis upon which to put forth reasonable arguments directing the jury to another conclusion.

[68] The motion for a directed verdict of not guilty on the count of second degree murder is dismissed.

“original signed by”

S.J. Wojciechowski

Released: February 6, 2025