COURT OF APPEAL FOR ONTARIO
Strathy C.J.O., Gillese and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Andrew Keene
Appellant
Ian R. Smith and James Bray, for the appellant
Roger A. Pinnock, for the respondent
Heard: July 22, 2020 by video conference
On appeal from the convictions entered by Justice Gregory M. Mulligan of the Superior Court of Justice, sitting with a jury, on June 23, 2015, and from the sentence imposed on July 2, 2015.
1The appellant was convicted of the second degree murder of Alexandra Flanagan and indignity to her remains. He was sentenced to life imprisonment with parole ineligibility set at 17 years. He also received the maximum sentence of five years on the indignity to human remains count, which is to be served concurrently with the life sentence. He appeals his convictions and his sentence with respect to the period of parole ineligibility.
2For the reasons that follow, I would dismiss both the conviction appeal and the sentence appeal.
A. Background
3Alexandra Flanagan went missing from the Barrie area in the summer of 2007. Parts of her body were found around Barrie in October 2007 and February 2008. The appellant was suspected, but while traces of the victim’s DNA were detected in his hockey bag, he was not charged.
4There appears to have been no significant developments in the police investigation over the next two years. In October 2010, police officers engineered an undercover “Mr. Big” operation to target the appellant. It was a variant of the classic operation described in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, at paras. 56-60.
5While the Mr. Big operation in this case was conceived and executed before the release of Hart, it was similarly scripted. The appellant was befriended by an undercover police officer who portrayed himself as a member of a fictitious criminal organization. This organization was headed by a distinguished and wealthy businessman, the Mr. Big character, who was played by another undercover officer. From October 2010 to October 2011, the undercover officers enacted some 60 “scenarios” in which the appellant was an unknowing participant.
6The operation began by creating a relationship of friendship and trust between the appellant and the undercover officer. They went to hockey games and strip clubs. They drank beers and had meals together. They socialized, sometimes including the appellant’s wife and the officer’s “undercover girlfriend”. They conversed ad nauseum, with some of their conversations being secretly recorded. They took trips together, doing errands and delivering packages for Mr. Big. The compensation paid to the appellant was modest, usually in the range of $50 to $150, and totalled about $5,000 over a twelve-month period.
7The appellant was introduced to Mr. Big fairly early in the operation and they had seventeen encounters, including the occasional meal. Mr. Big let the appellant know that he was liked and trusted, that he had a future in the organization, and that he could make a lot of money.
8The appellant ultimately disclosed the details of Ms. Flanagan’s murder by one of the methods described in Hart, at para. 60. Mr. Big offered to solve the appellant’s problems with the police by getting an associate, already serving a life sentence for murder, to confess to Ms. Flanagan’s murder. Mr. Big told the appellant that he needed sufficient details of the crime to make the associate’s confession credible. The appellant identified a previously unknown location where he had disposed of part of the victim’s remains. His arrest and charges followed.
9It is unnecessary for the purpose of this appeal to describe all the events leading up to this finale. However, four particular events ground the appellant’s submissions and I will discuss them further below. I refer to them under the following headings: (1) the “troublesome woman”; (2) “I know you killed Alexandra Flanagan”; (3) “put me in a hole”; and (4) “if you can make this [problem] go away I’ll give you my life.”
(1) The “troublesome woman”
10In June 2011, after the operation had been underway for almost eight months, Mr. Big told the undercover officer, within earshot of the appellant, that a woman had been causing him problems and that he would have to do something about it. Three months later, the undercover officer intimated to the appellant that he had been instructed to kill the woman. The undercover officer and the appellant discussed how it could be done and how they could dispose of the body. The purpose of introducing the “troublesome woman” scenario into the operation was to see whether it might prompt the appellant to make admissions about the killing of Ms. Flanagan.
11The duo acquired a map and a shovel and drove around the outskirts of the Barrie area to look for a suitable place to dispose of the body. At one point during their search, the appellant asked the undercover officer whether he was a policeman. The appellant stated that he had seen a television program on the subject of “Mr. Big” operations. The undercover officer replied with words to the effect of, “[o]h my God why would you say that? … Absolutely not”. The appellant believed that a police officer had to identify himself as such when asked, and was apparently satisfied with this response.
12In early October 2011, the undercover officer appeared at the appellant’s home looking disheveled and carrying a broken shovel. The inference was that the undercover officer had dug the grave in which they would bury the woman. The following day, the undercover officer had dinner with the purported troublesome woman at a restaurant in Toronto, while the appellant was assigned to follow her and obtain the licence number of her vehicle. The undercover officer asked the appellant whether he would help in getting rid of the woman. The appellant said that he would not participate in the killing, but that he would help to dispose of her body for $10,000.
(2) “I know you killed Alexandra Flanagan”
13On October 8, 2011, a few days after the scenario at the Toronto restaurant, the police orchestrated a “chance encounter” with a Barrie police detective, whom the appellant knew to be involved in the Flanagan investigation. In the presence of the undercover officer, the detective said to the appellant, words to the effect of, “[J]ust remember I know you killed Alexandra Flanagan.”
14This led to a discussion between the appellant and the undercover officer in the latter’s vehicle, which was recorded by police. The appellant disclosed to the undercover officer, for the first time, that the police believed he was involved in the killing of Ms. Flanagan. The appellant denied to the undercover officer that he was.
15The undercover officer testified at the voir dire that he pretended to be “upset, agitated and bewildered” by the confrontation and by the police interest in the appellant. He told the appellant that he was “shaking”, and he expressed concern about the fact that he had vouched for the appellant to Mr. Big. The undercover officer wondered aloud how the police investigation of the appellant might affect their plans concerning the troublesome woman.
(3) “put me in a hole”
16The appellant was also rattled by the encounter with the detective. He responded to the undercover officer’s concerns with words to the effect of, “[i]f it fuckin’ means puttin’ me in the hole, put me in a hole dude” and that if he was going to die at the hands of the organization, they should make it quick. The trial judge found that, at this point, there were no further discussions about the troublesome woman. Instead, the focus became the implications of Mr. Big’s knowledge about the police interest in the appellant.
(4) “If you can make this [problem] go away I’ll give you my life”
17About a week later, as the appellant and the undercover officer were driving to Montreal on an assignment for Mr. Big, they received instructions to divert to Ottawa and to meet with him. The appellant met alone with Mr. Big, but their conversation was recorded. As the scenario played out, Mr. Big told the appellant that he knew about the appellant’s problem, but said that it was also his (Mr. Big’s) problem. Mr. Big assured the appellant that he had nothing to worry about and that, “[N]ow we have a problem, I gotta deal with it right and trust me I can deal with it.”
18Mr. Big explained that it did not matter to him whether the appellant had killed Ms. Flanagan. He had a lot of money and he used that money to get problem-solvers, like “some cops, lawyers an’ judges”, answering to him. He could easily make the appellant’s problems go away. Mr. Big noted that he had to make the appellant’s problem go away “in a big hurry” because it was a liability and the appellant was too close to him.
19The appellant repeatedly denied that he had killed Ms. Flanagan. However, the appellant was worried that he would “fry for somethin’ I didn’t even do” and was “scared shitless.” Mr. Big assured him that he fiercely protected his people and that the only people who needed to be “scared shitless” were those who were a threat to him.
20At this stage, Mr. Big told the appellant that he had received information from sources within the Barrie police. Mr. Big told the appellant that his hockey bag was found to contain traces of Ms. Flanagan’s DNA. This was “holdback information” that had not been publicly released by the police. Its disclosure was designed to demonstrate to the appellant that Mr. Big’s resources and contacts gave him access to confidential Barrie police information.
21The officer playing Mr. Big testified at the voir dire that the appellant was obviously “shaken up” by the holdback information. The appellant responded by saying that “[i]f you can make this [problem] go away I’ll give you my life… I guarantee there’ll never be another problem like this.” Mr. Big and the appellant subsequently left the hotel room to take a smoking break. Although the outside conversation was not recorded, the appellant apparently asked Mr. Big, “[h]ow do I know you’re not an undercover officer?” The Mr. Big character replied with words to the effect of, “[d]on’t ever question me.” The appellant apologized, they shook hands, and returned to the hotel room.
22Mr. Big and the appellant continued to discuss how Mr. Big would make the appellant’s problem go away. Mr. Big told the appellant that he was valued and that he was going to teach the appellant a lot: “Right now I look at you and you’re like a diamond in the rough alright. You gotta lotta potential.” Mr. Big then asked the appellant about the details of his encounter with Ms. Flanagan. Mr. Big explained that the details were required to “manipulate the truth” and have another person take responsibility for the crime. The appellant tried to answer Mr. Big’s questions, but since he struggled to remember the details, the conversation ended shortly thereafter.
23The appellant met with Mr. Big a few days later to continue their discussion. Mr. Big informed the appellant that he could have a friend, who was serving a life sentence, confess to the killing. He reiterated that in order to make the confession credible, he would need details of the killing and the disposal of the victim’s body. The appellant said that Ms. Flanagan’s clothing had been “torched” and that some of the tools he had used had been thrown into Lake Simcoe. He also admitted that he had strangled her. He disclosed information about where he had disposed of the body parts. Ultimately, to provide accurate information to the fictitious scapegoat in jail, the appellant identified a previously unknown location where he had disposed of Ms. Flanagan’s torso.
24The appellant was arrested and charged. While being interviewed by the police, he explained why he made the statements he did to the undercover Mr. Big: “If somebody tells you you’re a liability an’ [you] thinks they’re gonna kill you, you’ll tell them anything.”
B. THE Hart Framework
25Mr. Keene’s conviction rests on evidence obtained as a result of a “Mr. Big” operation. His conviction appeal relies on the framework set out by the Supreme Court of Canada in R. v. Hart, which was released at the commencement of his trial. The trial judge adjourned the voir dire so that the parties could adapt their cases to Hart’s exposition on the law of Mr. Big confessions.
26In R. v. Hart, the Supreme Court of Canada set out a new two-pronged approach to the admissibility of inculpatory evidence derived from a “Mr. Big” operation: see also R. v. Kelly, 2017 ONCA 621, 387 C.R.R. (2d) 93, at paras. 25-33, leave to appeal refused, [2017] S.C.C.A. No. 474. Moldaver J., who wrote the majority judgment, acknowledged at paras. 3-9, that the current law provided insufficient protection to accused persons who confessed during Mr. Big operations and identified three concerns:
- the unreliability of a confession obtained by threats or inducements;
- the prejudicial effect of unsavoury character evidence that stems from the accused’s participation in the fictitious criminal organization; and
- the potential for police misconduct in the pursuit of a confession.
27Hart holds that inculpatory evidence obtained through a Mr. Big operation will be presumptively inadmissible unless the Crown establishes through a voir dire that its probative value outweighs its prejudicial effect: Hart, at paras. 85, 89. If the Crown discharges that burden, on a balance of probabilities, the accused may show that the confession was obtained by police misconduct amounting to an abuse of process. As a practical matter, the abuse of process issue can be addressed first because if the evidence is excluded on that basis, there is no need to weigh its probative value against its prejudicial effect: Hart, at para. 89. The trial judge also retains a residual discretion to exclude evidence that compromises trial fairness, even when the evidence has not been screened out by the two-pronged approach: Hart, at para. 88.
(1) Abuse of process
28Hart calls for a reinvigorated approach to abuse of process to guard against state conduct that society finds unacceptable, and that threatens the integrity of the justice system: Hart, at paras. 113-114. In so doing, Moldaver J. referred to the principles expressed in R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, 44 C.C.C. (3d) 513, at pp. 941, 963, 966 and R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 32, 35.
29Moldaver J. declined to establish a precise formula for determining when a Mr. Big operation will become abusive, but suggested one guideline, at para. 115:
[P]olice conduct, including inducements and threats, becomes problematic in this context [in inducing confessions] when it approximates coercion. In conducting these operations, the police cannot be permitted to overcome the will of the accused and coerce a confession. This would almost certainly amount to an abuse of process.
30Moldaver J. noted that physical violence and threats of violence are examples of coercive behaviour, as are operations that prey on the vulnerabilities of the accused: Hart, at paras. 116-117; see also Mack, at p. 963. He also recognized that Mr. Big operations can become abusive in other ways, including some of those set out in Mack, at p. 966. But he ultimately left it to individual judges to identify abuse of process in individual cases: Hart, at para. 118.
(2) Probative value versus prejudicial effect
31If the accused fails to show that there was an abuse of process, the Crown must nevertheless establish that the probative value of the evidence outweighs its prejudicial effect.
32When one looks to potential probative value, one must consider the reliability of the confession having regard to the circumstances in which it was elicited and any “markers of reliability”: Hart, at paras. 102, 105. The circumstances in which the inculpatory statement was elicited may include: the length of the Mr. Big operation; the nature and number of interactions between the undercover officers and the accused; the relationship between the undercover officers and the accused; the nature and extent of the inducements offered; the presence of threats; the conduct of any interrogation of the accused by the undercover officers; and the personality of the accused, including his or her age, sophistication, and mental health: Hart, at para. 102. The markers of reliability may include the level of detail contained in the confession; the disclosure of information that only the perpetrator would know; and the discovery of additional evidence: Hart, at para. 105.
33The prejudicial effect analysis focuses on the dangers associated with Mr. Big confessions. Both moral prejudice and reasoning prejudice can arise when the jury learns of the accused’s willingness to join a criminal organization and to participate in illegal, sometimes violent, activities: Hart, at para. 106. Ultimately, the trial judge must determine whether the value of a confession exceeds its cost: Hart, at para. 109.
C. The trial judge’s ruling on the crown application
34The Crown brought an application to introduce into evidence the inculpatory statements made by the appellant to the undercover officers. After describing the Hart framework, the trial judge conducted a detailed review of the evidence heard at the voir dire. The trial judge followed the suggestion of Moldaver J. in Hart and addressed the abuse of process issue first.
35In the trial judge’s words, the Mr. Big operation “took a different tact” when the police staged an encounter with the Barrie detective. The encounter not only rattled the appellant but prompted the undercover officer to inquire about the detective’s comments. The undercover officer raised concerns about how the police interest in the appellant would affect their relationship with Mr. Big. This led to the meeting with Mr. Big at the Ottawa hotel.
36The meeting between Mr. Big and the appellant occurred six days after the latter’s confrontation with the Barrie detective. The trial judge noted that in the intervening period, the appellant expressed no further concerns about his personal safety, continued to interact with the undercover officer and Mr. Big, and did not hide from them or seek to avoid their company.
37The trial judge found that the appellant’s disclosure of his crime to Mr. Big was not motivated by fear of the organization. Specifically, “his utterances and behaviour show that he was more concerned or scared about the Barrie Police Service’s continuing interest in him, rather than the organization potentially using violence against him.” According to the trial judge, it was the appellant’s acceptance of Mr. Big’s offer to help “make the problem go away” and “not fear of the organization” that led to his incriminatory statements. The trial judge concluded that there was no abuse of process:
I am satisfied that the police conduct in this case did not amount to an abuse of process. Mr. Keene had full employment as a welder and lived in a rental property with his wife and child. He was not socially isolated. He was not totally wrapped up in this organization. Although he was enlisted to deliver packages and accompany [the undercover officer], days or weeks would go by between these trips where he would carry on his normal work and family life. He was not financially dependent on the organization. Financial inducements were modest. Payments to him were generally in the range of $50 to $100, amounting to perhaps $5,000 over a twelve-month period. The trips were often scheduled at his convenience: to avoid conflicts with work or other family activities. There is nothing to suggest that his will was overborne. There was no physical violence against him, or even threats of physical violence against him, nor any scenes of fake violence towards others played out before him.
38The trial judge found that the defence did not meet the burden of establishing abuse of process so as to require exclusion of the confession from consideration by the jury.
39The trial judge subsequently turned to the first prong of the Hart analysis: whether the probative value of the evidence outweighed its prejudicial effect. The trial judge acknowledged that the appellant received an inducement when Mr. Big offered to make his problem go away. The trial judge also noted that the appellant received financial inducements. However, the trial judge held that the financial inducements paid to the appellant were not large, and that the relationship with the undercover officer had both social and business aspects. The appellant was also not vulnerable: he was not a young person, or a person with any evident mental health issues. The appellant had a regular job and was in a domestic relationship. The danger of an unreliable confession was mitigated by the information that the appellant provided on the precise location of a previously undiscovered body part, years after Ms. Flanagan’s death.
40The trial judge found that there was a risk of moral prejudice and ultimately reasoning prejudice arising from the appellant’s participation in the discussions about killing the “troublesome woman” and disposing of her body. While the appellant was not prepared to participate in the former, he was prepared to assist with the latter. The trial judge said that this particular evidence might be unnecessary to the Crown’s narrative. Following the suggestion in Hart, at para. 107, the trial judge invited the Crown and defence to make submissions on whether that evidence should be excluded. In the end, the jury did not hear any evidence about the appellant’s participation in discussions concerning the disposal of the “troublesome woman”.
D. PARTIES’ Submissions
41The appellant submits that the trial judge did not engage in the kind of “robust approach” to the abuse of process analysis required by Hart and failed to carefully scrutinize the evidence. Had he done so, he would have appreciated that the operation was carefully choreographed in a way that approximated coercion: the “troublesome woman” character was introduced to demonstrate to the appellant that people who became “a problem” for the organization were killed; the staged encounter with the Barrie detective had the desired effect of frightening the appellant and causing him to think that he might be a problem; less than a week after the staged encounter, Mr. Big told the appellant that the only people who needed to be “scared shitless” were those who were a threat to him; and, although the appellant accepted Mr. Big’s offer to “fix it with money”, he was put in this predicament because the other side of the coin was to remain a threat to the organization and therefore be seen as a “problem”. He had already learned what happened to people who became “a problem”. They were killed.
42The Crown, citing Hart, responded to the appellant’s arguments by noting that not all “Mr. Big” operations are abusive, and that they have played an important role in the investigation of serious crimes. An aura of violence is a defining feature of such operations because it creates an environment in which a person who has committed a violent crime can feel comfortable disclosing it to others. Hart emphasizes that only police misconduct that approximates coercion and overcomes the will of the accused constitutes an abuse of process. The Crown concedes that confessions derived from such conduct must be excluded.
43The Crown submits that the police conduct in this case was not coercive, and does not fit any of the examples of abuse of process identified in Hart, at paras. 116-117. There was no violence or threats of violence; the appellant had no vulnerabilities; and there was no misconduct that would threaten the integrity of the justice system or impair trial fairness. The trial judge’s assessment of the evidence and his conclusion that there was no abuse of process was reasonable and should be entitled to deference.
E. analysis
(1) The conviction appeal
44The appellant makes no complaint about the trial judge’s assessment of the evidence in relation to the first prong of the Hart analysis. As I have noted, the trial judge considered the circumstances in which the confession was made, and the “markers of reliability”, including the detailed information provided by the appellant that culminated in the police finding a previously undiscovered body part. One can hardly imagine more compelling evidence of the reliability of the appellant’s confession.
45The question on the second prong of the Hart inquiry, as the appellant frames it, is whether the police induced a confession from him by using coercion, threats of coercion, or conduct approximating coercion to overcome his will. He does not point to any other indicia of abuse of process.
46The appellant submits that the entire course of the Mr. Big operation was designed to demonstrate what happened to people who became a problem for the fictitious criminal organization, and to coerce him into confessing when he realized he had become a problem. The assessment of this submission requires consideration of both the component parts of the operation and its overall impact on the appellant. Whether the operation was tainted by police conduct that threatens the integrity of the justice system is a factual inquiry and the trial judge’s balancing of the competing interests is entitled to deference: see, R. v. Baranec, 2020 BCCA 156, 387 C.C.C. (3d) 5092, at paras. 172-173.
(a) The Mr. Big operation and its overall impact on the appellant
(i) The “troublesome woman”
47The trial judge found that the “troublesome woman” scenario was “part of the undercover plan to get Mr. Keene talking about any knowledge he may have [had] about killing someone.” The scenario undoubtedly helped to establish that the fictitious criminal organization was prepared to use lethal violence to get rid of its problems. It would not have been unreasonable for the appellant to assume that if he became a problem like the “troublesome woman”, the organization would kill him: see, for example, Dane Bullerwell, “Living with Mr. Big”, National Criminal Law Program, July 2017.
48However, the “troublesome woman” scenario also served to create an environment in which the appellant could feel comfortable disclosing the truth of his crime. It laid the groundwork for the appellant’s confession of his own violent act so that the organization could assist him, as one of its own, in getting rid of his problem.
(ii) “I know you killed Alexandra Flanagan” and “put me in a hole”
49The “I know you killed Alexandra Flanagan” scenario had two effects. First, it frightened the appellant by showing him that the police still regarded him as a suspect in Ms. Flanagan’s murder. Second, it made the appellant realize that he might be a problem for the organization, as reflected by his “put me in a hole” comment. The undercover officer hammered the point home when he described himself as “shaken” by the revelation that the appellant was a suspect in a murder investigation.
(iii) “If you can make this [problem] go away I’ll give you my life”
50After the encounter with the Barrie detective, the undercover operation took a pause for almost a week before the meeting with Mr. Big at the Ottawa hotel.
51Mr. Big affirmed that the police interest in the appellant was a problem for the organization. However, Mr. Big asked about the appellant’s involvement in Ms. Flanagan’s murder so that he could help solve the problem. When the appellant repeatedly denied any knowledge, Mr. Big told the appellant that police had information tying him to the murder of Ms. Flanagan. The appellant’s reaction immediately changed – “he folded up, buried his face in his hands, his breathing changed, he was sighing”. The appellant ultimately said to Mr. Big that, “[i]f you can make this [problem] go away I’ll give you my life.”
(b) The trial judge did not err in his analysis of abuse of process
52During the voir dire into the admissibility of the appellant’s Mr. Big confession, the trial judge heard eight days of evidence from the two principal undercover officers and one of the lead investigators. The latter was involved in supervising and directing the operation, and he interviewed the appellant on October 20, 2011 after his arrest. The trial judge also listened to audio recordings of some of the critical meetings between the appellant and one or both undercover officers. The trial judge was able to assess the entire course of the operation and to appreciate the impact of the events upon which the appellant focuses his submissions.
53The trial judge found that none of the scenarios in the operation, including the ones outlined above, were coercive and led to the appellant’s will being overborne.
54After the encounter with the Barrie detective, the appellant may have been “shaken up”, but he continued to interact with the undercover officers and did not try to hide from them or seek to avoid their company. In fact, as the trial judge highlights, the appellant agreed to help the undercover officer deliver a package to Montreal just days later.
55When the appellant met with Mr. Big in Ottawa, he was not pressed into confessing. Mr. Big told the appellant that he did not care if the appellant killed Ms. Flanagan. Even if, at one point, the appellant believed there was a potential for violence against him based on the organization’s previous desire to get rid of the “troublesome woman”, Mr. Big assuaged those concerns by repeatedly telling the appellant that he wanted to solve his problem.
56The trial judge found that “[t]he discussion in the Ottawa hotel room made it clear that Mr. Big was loyal to his employees and would spend whatever money was necessary to make the problem go away.”
57The trial judge determined that there was “no physical violence against [the appellant], or even threats of physical violence against him, nor any scenes of fake violence towards others played out before him.” The appellant was also not vulnerable. The trial judge concluded that the appellant was not coerced into his confession.
58The trial judge’s findings of fact reflect his assessment of the entirety of the evidence. His conclusion that the police conduct did not amount to an abuse of process is entitled to deference.
59Ultimately, the appellant was carrying a terrible burden and felt the police closing in on him. He willingly and gratefully accepted Mr. Big’s offer of assistance, not because he was pressured or coerced into doing so, or because he thought he would be “put in a hole” if he did not. Instead, the appellant agreed to Mr. Big’s plan because he desperately wanted his problem to go away. The bargain he made with Mr. Big, “[i]f you can make this [problem] go away I’ll give you my life”, was made of his own free will. His incriminatory statements were not the product of any abusive or coercive conduct from the undercover police officers.
60For these reasons, I would dismiss the conviction appeal.
(2) The sentence appeal
61At the sentencing hearing, defence counsel took the position that a parole ineligibility period of 12 to 13 years was appropriate in this case. The Crown proposed 20 years. Nine members of the jury suggested 25 years, one 20, another 15, and one made no recommendation. The trial judge imposed the mandatory sentence of life imprisonment for second degree murder and set the parole ineligibility period at 17 years. The appellant submits, as he did at the sentencing hearing, that a period of 12 to 13 years would have been appropriate.
62Section 745.4 of the Criminal Code, R.S.C. 1985, c. C-46, to which the trial judge adverted, provides that in determining the period of parole ineligibility, the trial judge shall consider the character of the offender, the nature of the offence, the circumstances of its commission, and the recommendation of the jury. Here, the trial judge considered all these factors. He also considered the victim impact statements.
63The trial judge carefully looked at the mitigating circumstances that favoured the appellant’s submission for a lower period of parole ineligibility, including the absence of a criminal record, a good work record, and a stable domestic life with no history of violence.
64However, the trial judge found that there were six aggravating factors:
- the appellant had invited the victim into his home;
- the appellant dismembered the victim in a “methodical, cold, cruel and calculated” manner;
- the appellant disposed of the body parts at various locations, where they would likely be found by passers-by, in order to deceive the police;
- the appellant lied to the police prior to the “Mr. Big” investigation;
- the appellant had access to drugs in his possession, and this may have been the reason for the victim’s visit to him; and
- the appellant had no insight into the “horror that he has vested upon Alexandra Flanagan’s family.”
65The trial judge relied upon the authorities put before him by counsel, which included the frequently-cited decision of the Supreme Court of Canada in R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657. He concluded that the range established by this court in domestic violence cases is 12 to 17 years, although he observed, this was not strictly speaking a domestic violence case: referring to R. v. Czibulka, 2011 ONCA 82, 267 C.C.C. (3d) 276, leave to appeal refused, [2004] S.C.C.A. No. 502; see also R. v. French, 2017 ONCA 460. The trial judge set the period of parole ineligibility at 17 years.
66The appellant asserts that the parole ineligibility period imposed by the trial judge was in excess of the reasonable range. This, he submits, was the product of an error in the trial judge’s assessment of the aggravating factors. While the dismemberment of the victim and disposal of her remains was aggravating, the maximum sentence for indignity to human remains is five years, well-below the seven years added to parole ineligibility. In addition, inviting the victim into the appellant’s home was not itself aggravating. There was no evidence that he lured her there. Nor was there any evidence of planning. The appellant’s “drug problem” was an illness, not an aggravating factor. Finally, the appellant asserted that his absence of insight should not be treated as an aggravating factor.
67It is well-established that this court should only interfere with a sentence if it is demonstrably unfit, or if it reflects an error in principle, the failure to consider a relevant factor or the over-emphasis of a relevant factor: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 46. While general ranges of sentences for particular offences are of assistance, they are “guidelines” rather than hard and fast rules. A sentence falling outside the regular range is not necessarily unfit: Nasogaluak, at para. 44.
68This standard of review, applicable to sentencing generally, applies to the determination of the period of parole ineligibility: Shropshire, at paras. 45-46. An appellate court should only interfere with the period of parole ineligibility if the judge has made an error in principle, or if the period of parole ineligibility is clearly excessive or inadequate: Shropshire, at paras. 47-48.
69Since the setting of the period of parole ineligibility is part of the sentencing process, it follows that various sentencing objectives, including denunciation and deterrence, are relevant considerations: R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29, at para. 215, leave to appeal refused, [2018] S.C.C.A. No. 50.
70The principle of denunciation is intended “to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct”: Criminal Code, s. 718(a). In the circumstances of this case, it was not an error for the trial judge to craft a period of parole ineligibility that reflected denunciation of the appellant’s overall conduct and to deter others from similar conduct. The fact that the trial judge imposed the maximum five-year sentence for indignity to human remains, running concurrently to the life sentence, does not mean that the role of denunciation was spent and he could not use the principle in assessing the period of parole ineligibility.
71The evidence in relation to the dismemberment of Ms. Flanagan’s body and the disposal of her remains about Barrie, coupled with the victim impact statements from her family (parents, sisters, and aunt), speak to the horrific nature of the appellant’s crimes. The recommendation of nine jurors that the appellant be subjected to a 25-year period of parole ineligibility reflects their assessment of the brutal and shocking nature of the appellant’s actions.
72Even acknowledging the issues identified by the appellant with respect to the trial judge’s consideration of the aggravating factors, I do not believe that they had an impact on the sentence ultimately imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. The circumstances of Ms. Flanagan’s murder and the events after it warrant a period of parole ineligibility at the upper end of the range.
73I am also not persuaded that the period of parole ineligibility imposed by the trial judge reflects an error in principle or is demonstrably unfit.
F. disposition
74For these reasons, I would dismiss both the conviction appeal and the sentence appeal.
Released: “G.R.S.” OCT 08 2020
“George R. Strathy C.J.O.”
“I agree. E.E. Gillese J.A.”
“I agree. David Watt J.A.”
