The Ontario Court of Appeal, pictured in 2019, upped the sentence of Corey Cunningham, who stabbed his pregnant ex-girlfriend in the neck, from seven years to 15 years.Colin Perkel/The Canadian Press
Ontario’s top court has sent a message to trial judges that when men set out to kill their intimate partners, rehabilitating them is secondary to punishing them and deterring others.
The prosecution had sought a life sentence for Corey Cunningham, who stabbed his pregnant ex-girlfriend in the neck, missing her carotid artery and jugular vein by a centimetre or two. Ontario Superior Court Justice Robert Goldstein said a life sentence would have a “crushing” impact on Mr. Cunningham’s chance at rehabilitation. He gave him seven years. The Ontario Court of Appeal upped that to 15 on Friday.
It was the appeal court’s second rebuke in 3½ years of lower-court judges for soft sentences in attempted murders of ex-girlfriends. In a 2019 case, a man who set a house on fire and trapped his ex-girlfriend and two of her children, including a baby, inside received 11 years. The appeal court raised that sentence to 20 years.
First-degree murder brings an automatic penalty of life in prison with no chance of full parole for 25 years. But judges have more discretion in cases of attempted murder. And the appropriate punishment for attempted murder in the domestic context has long been controversial. In 2002, an Ontario judge gave a man just over four years after he tried to kill his wife by striking her car with his own. The appeal court raised that sentence to six years in 2004.
Mr. Cunningham, who was 26 when he stabbed his former girlfriend in 2019, had arranged for an alibi with a friend before the attack. After knifing the pregnant woman, he robbed her and kicked her to see if she was dead. The victim survived by playing dead but lost the baby.
While courts often take into account a guilty plea at sentencing, Mr. Cunningham did not plead guilty. Instead, he claimed to have acted in self-defence, a claim Justice Goldstein rejected.
The appeal court cited several previous rulings over the past 15 years in which it stressed the primacy of deterrence in the attempted murder of intimate partners and their children.
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“The trial judge did not address the significance of domestic violence, including the fact that the victim was pregnant with the respondent’s child, as well as that the attack represented an obvious desire to kill her to solve his own problem of unexpected parenthood,” Justice Mary Lou Benotto wrote for the appeal court in the 3-0 decision, supported by Chief Justice Michael Tulloch and Justice Gary Trotter.
“He failed to give effect to the primary sentencing principles of denunciation and deterrence in a domestic context.”
Elizabeth Sheehy, a law professor who studies judicial responses to violence against women, said the trial judge seemed unaware “this could easily have been another intimate femicide, the incidence of which is at crisis proportions.”
“It is very discouraging to see that judges continue to minimize men’s violence against women,” the University of Ottawa professor emeritus said in an e-mail, “even when it is calculated, deliberate in the details of execution and concealment, and almost results in the loss of a woman’s life.”
She added: “If we are ever to communicate an unequivocal message denouncing misogynist violence, judges must also row in the same direction.”
Justice Goldstein acknowledged in his sentencing decision that rehabilitation plays a lesser role in attempted murders in the domestic context. But then, said the appeal court, he went ahead and overvalued rehabilitation.
“Mr. Cunningham,” Justice Goldstein wrote, “is an example of why judges find sentencing so challenging: he committed a horrible crime, a crime that must be denounced, and yet he is a young man who has obvious potential for rehabilitation and reintegration into the community.
“Ultimately, I find that this crime, as horrible as it was, was out of character for Mr. Cunningham … it does not represent the totality of who he is.”
Citing the 2004 case, he said the range for attempted murder is six years to life. Given that Mr. Cunningham was a first-time offender, he deserved to be at the low end of the range. He also received an extra year of credit for jail conditions during the pandemic, on top of credit of 1½ days for each of the 914 days he spent awaiting trial. The appeal court added this extra year back onto the sentence, saying it had been a legal error to grant it.
The appeal court disagreed that the lowest appropriate penalty for attempted murder in a domestic context is six years. In that 2004 case, the victim wasn’t injured and the perpetrator had already served his sentence.
In any event, “the last two decades have seen an increase in society’s awareness of the prevalence of domestic violence and the evils it creates,” Justice Benotto wrote.
Elliott Willschick, a lawyer for Mr. Cunningham, did not wish to comment.
Sean Fine