COURT FILE NO.: 12-220

DATE: 20130621

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen
Respondent

– and –

Andrew Keene
Applicant

Michael Flosman, for the Respondent
Mitchell Eisen, for the Applicant

HEARD: March 28, 2013

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 539(1) of the Criminal Code, no evidence taken at the preliminary inquiry shall be published, broadcast or transmitted in any way before such time as the accused is discharged, or if he is ordered to stand trial, the trial is ended.

REASONS FOR JUDGMENT

FUERST J.:

Introduction

[1] Alexandra Flanagan was reported missing on July 13, 2007. In October 2007, human remains identified as her right arm, left leg and skull were found in the area of Lackie’s Bush in Barrie. In February 2008 human remains identified as her left arm and right leg were found east of Johnson’s Beach in Barrie. On October 20, 2011, as the result of information given by the applicant to an undercover police officer, human remains identified as Ms. Flanagan’s ribs, vertebra and pelvic bones were found near Highway 400 in Barrie.

[2] The pathologist was unable to determine the cause of death. A forensic anthropological consultant who examined the remains found in 2007 and 2008 identified signs of peri-mortem dismemberment on them.

[3] As the result of a “Mr. Big” operation that commenced in 2010, the applicant was arrested on October 20, 2011, and charged with the first degree murder of Ms. Flanagan, and unlawful interference with human remains. The Crown alleges that the applicant killed Ms. Flanagan while committing or attempting to commit a sexual assault of her.

[4] At the conclusion of the preliminary inquiry, the applicant was committed to trial on both counts. He moves for an order of certiorari, seeking to quash the committal to trial on the charge of first degree murder and the substitution of a committal to trial on a charge of second degree murder. He does not seek to quash the committal to trial on the charge of unlawful interference with human remains.

Summary of the Evidence

(a) The Applicant’s Relationship with Ms. Flanagan

[5] The applicant worked at the same company as Ms. Flanagan in 2004 and 2005. In the first half of 2005 he, Ms. Flanagan and others often socialized at the home of another co-worker, Michael Dickson, where they used drugs including marijuana, ecstasy and cocaine.

[6] Mr. Dickson testified that Ms. Flanagan was flirtatious with men. The applicant told him that he liked her and hoped something would come of it. This was at least two years before she went missing. She reciprocated some feelings, but it never led anywhere and she and the applicant never had a dating relationship. The applicant moved on and began living with the woman who became his wife.

[7] Jennifer Dickson, Mr. Dickson’s wife, testified that in January 2005 the applicant was enamoured with Ms. Flanagan. Ms. Flanagan was not interested in a relationship with him, and would hang out with him only as long as he had drugs to share. She would flirt with him, for example by sitting on his lap, but she never made good on any promises. After the applicant and Ms. Flanagan had a fight because he would not share his drugs with her, he felt used by her and realized that he would not have a relationship with her. He and Ms. Flanagan stayed in contact until the summer of 2005, but only as friends. In February 2005 the applicant began dating the woman who became his wife, and was living with her by the fall of 2005.

[8] Ms. Dickson said that after Ms. Flanagan went missing, the applicant told her that he cared very much for Ms. Flanagan, he loved her, and she was his friend. He could not understand why the police thought he would hurt her. He was crying when he said this.

(b) Events of Sunday, July 8, 2007

[9] Scott Davidson, who described himself as Ms. Flanagan’s boyfriend, testified that he was with her on the late afternoon and evening of Sunday July 8, 2007. They drank beer at a friend’s home and then at Mr. Davidson’s home. Ms. Flanagan did not use drugs that night. He said that she was trying to get off drugs.

[10] She appeared to be moody that evening. Around 8:30 or 9:00 p.m. she wanted to go to her apartment, so he walked her home. He left her near her apartment in Barrie, around 9:30 p.m. He did not see her again.

[11] She was wearing Capri pants, a shirt and flip-flops. She had some sort of handbag.

[12] He described her as a smaller woman who weighed roughly 100 to 110 pounds.

[13] He did not know where she might go that night. He did not see her using her cell phone on the walk home. He did not remember if she used it earlier that night.

[14] Around 10:30 p.m. he tried to reach her by phone, without success. He could not remember if he called her cell phone or her land line.

[15] He called her the next day, but failed to reach her.

[16] In the summer of 2007 David Weston lived in Barrie with his father, Dave Weston, in his father’s semi-detached house. Dave Weston rented a one bedroom apartment in the basement of the house to the applicant and his wife.

[17] Entrance to the basement apartment was gained though the side door of the house off the driveway, and then down a set of stairs. The apartment was at the end of a hallway.

[18] Anthony Sotera was a friend of the applicant. He visited at the basement apartment several times. He testified that he saw a dagger and a small double-sided axe there.

[19] Mr. Sotera said that he and William Hill were at the apartment with the applicant, in the early morning of Saturday July 7, 2007. The applicant’s wife was not there. The men were drinking. They may also have smoked marijuana.

[20] William Hill testified about a Sunday night when he and Mr. Sotera went to the applicant’s apartment. The applicant’s wife was not there. The men smoked a marijuana cigarette, but they did not drink alcohol. While he was present, there was no mention of calling an escort service. He left Mr. Sotera at the apartment and went home. He did not remember the time.

[21] Cassandra Costello, a call girl, testified that in the summer of 2007 she advertised her services on the internet. Her telephone number was on her home page. The telephone had an answering machine. A potential client would telephone her and arrange to meet with her. She met with only ten per cent of the people who called her. She did not do spontaneous meetings and she would not travel to Barrie.

[22] She said that she never met the applicant and had no recollection of receiving a telephone call or message from him.

[23] On July 7 or 8, 2007, Dave and David Weston went to an afternoon Blue Jays baseball game. That night, the applicant was up and down the stairs a lot and was smoking outside David Weston’s bedroom window, from about 10:30 p.m. until the early morning. Mr. Weston saw the applicant outside twice when he got up to close his window because of the cigarette smoke. The applicant did not look like he had been in a fight. He was not bloodied.

[24] David Weston said that if voices were raised in the basement apartment, he would hear them in his bedroom. He did not hear raised voices from the apartment that night. He did not see anyone else coming to or going from the apartment. Dave Weston said that if someone was yelling in the basement apartment, he would hear it in his bedroom. He did not hear any disturbance from the apartment that night.

[25] Mr. Hill testified that about a week later, the applicant told him that a girl went missing the night that they were hanging out together and that the police were going to call Mr. Hill. He asked Mr. Hill to confirm that he was with the applicant that night. The applicant said that he and the girl used to party together, that she called him out of the blue, and that her telephone number turned up on his cell phone records when he submitted them to the police.

(c) The Hockey Bag

[26] On October 24, 2007, the police executed a search warrant at the home of the applicant. They seized various items, including a hockey bag. Bloodstains were found inside the bag. Ms. Flanagan could not be excluded as the source of the DNA profile from a bloodstain inside the main compartment of the bag and from bloodstains on the underside of the lid of the bag.

(d) The Telephone Records

[27] Records were produced by Rogers Communications for the cell phones of Ms. Flanagan and the applicant. The records showed telephone and text message contact between them in the period preceding the murder. The records preserved only the first 20 characters of the text messages.

[28] On July 7, 2007, at 12:49 p.m. the applicant’s phone received a call from Ms. Costello’s phone. Later at 11:25 p.m. the applicant’s phone texted Ms. Flanagan, “Hey buddy when you m”.

[29] On July 8, 2007, there were a series of communications between the applicant’s phone and Ms. Flanagan’s phone, as follows:

12:20 a.m.: The applicant’s phone called Ms. Flanagan’s phone and the call went to her voicemail;

12:26 a.m.: The applicant’s phone called Ms. Flanagan’s phone and the call went to her voicemail;

8:48 a.m.: The applicant’s phone called Ms. Flanagan‘s phone and the call went to her voicemail;

8:24 p.m.: Ms. Flanagan’s phone texted the applicant’s phone, “Wut up sxy mo fo!”;

8:25 p.m.: The applicant’s phone texted Ms. Flanagan‘s phone, “No much s xy lexi wh”;

8:28 p.m.: Ms. Flanagan’s phone texted the applicant’s phone, “U tell me? I’ve been”;

8:29 p.m.: The applicant’s phone texted Ms. Flanagan’s phone, “We should hook up n”;

8:30:01 p.m.: Ms. Flanagan’s phone texted a smiley face to the applicant’s phone;

8:30:59 p.m.: The applicant’s phone texted Ms. Flanagan’s phone, “Where you living the”;

8:33:02 p.m.: Ms. Flanagan’s phone texted the applicant’s phone, “Call me wen next par”;

8:33:45 p.m.: The applicant’s phone called Ms. Flanagan’s phone and the call went to her voicemail;

8:34 p.m.: Ms. Flanagan’s phone called the applicant’s phone for 38 seconds;

9:19 p.m.: Ms. Flanagan’s phone called the applicant’s phone for almost 8 minutes;

9:47 p.m.: Ms. Flanagan’s phone called the applicant’s phone for 39 seconds;

9:54:04 p.m.: The applicant’s phone called Ms. Flanagan’s phone and the call went to her voicemail;

9:54:18 p.m.: Ms. Flanagan’s phone called the applicant’s phone for 69 seconds;

9:59 p.m.: Ms. Flanagan’s phone called the applicant’s phone.

[30] On July 9, 2007, at 1:32 a.m. the applicant’s phone called Ms. Flanagan’s phone and the call went to her voicemail.

(e) The “Mr. Big” Operation

[31] In October 2010 Detective Constable S.A, working undercover, made contact with the applicant. In accordance with a strategy developed by the police, the officer posed as a member of a criminal organization and befriended the applicant. He purported to involve the applicant in the work of the organization. The officer claimed that he needed to abduct and kill a female member of the organization, and discussed various scenarios with the applicant. Eventually he introduced the applicant to another officer, Detective P.S., who was working undercover posing as the “crime boss”.

[32] Detective Constable S.A testified that he and the applicant often talked about sex. On one occasion the applicant repeatedly suggested that they pick up a prostitute and take her back to his home as his wife was away.

[33] As part of the undercover strategy, the police arranged for the officer investigating Ms. Flanagan’s murder to approach the applicant in a public place, as though by accident, in October 2011. That officer told the applicant that he knew the applicant committed the murder and would be seeing the applicant soon.

[34] The applicant told Detective Constable S.A. that the allegation concerned a friend who was brutally murdered. The applicant said that he was infatuated with the deceased.

[35] Detective Constable S.A. took the applicant to meet with Detective P.S. on October 14, 2011. Detective P.S. told the applicant that he knew Ms. Flanagan’s blood was found inside a hockey bag the police seized during a search of the applicant’s apartment. He told the applicant that he had the means to “fix” the applicant’s problem with the police, but he needed to know what happened. The applicant described Ms. Flanagan as “the reason I’m with the woman I’m with”. Initially he denied that he killed her. Eventually he said that she called him looking for drugs, that he was drunk and did not remember, but if he killed her he did it in his home.

[36] On October 17, 2011, the applicant spoke to Detective P.S. again. He said that Ms. Flanagan’s clothing probably got “torched” and that her phone and wallet were in Lake Simcoe. When asked, “How did ya do her” he replied, “I probably woulda wrapped somethin’ around the neck…some kind of fabric” and that it might have been a t-shirt or “wife-beater”. He said that he burned it along with the clothes he wore. He did not remember where he cut her up, but it would have been in his apartment. He got rid of her body parts in three spots. He said that the police did not know that he left her torso in a bush at the end of his street.

[37] The applicant said that he did not remember where in the apartment he strangled her. He thought that he was on top of her. He might have hit her with something round, he vaguely remembered a mark around her right temple area. When asked, he said that there should not be any of his DNA on her parts.

[38] On October 19, 2011, the applicant met with Detective P.S. again. He said that he was not sure when Ms. Flanagan got to his apartment, maybe between 10:30 p.m. and midnight. He was asked, “How long after she arrived did you do her?” He replied, “A couple of hours maybe”. He was asked if when he was on top of her it was on the floor, and he said that he did not remember.

[39] The applicant then took Detective Constable S.A. to three spots in the Barrie area where he said body parts had been dumped. He drew a map of the locations.

The Reasons of the Preliminary Inquiry Judge

[40] Crown and defence counsel agreed and the preliminary inquiry judge acknowledged that there was no direct evidence of a sexual assault or attempted sexual assault. Rather, Crown counsel relied on circumstantial evidence from which he argued it could reasonably be inferred that the applicant committed the murder while committing or attempting to commit sexual assault on Ms. Flanagan.

[41] The preliminary inquiry judge described his task in this case as a difficult one. He concluded that, when taken as a whole, the following pieces of circumstantial evidence constituted some evidence that the murder occurred while the applicant was committing or attempting to commit a sexual assault:

1. The applicant admitted strangling Ms. Flanagan and disposing of her remains;
2. He had a sexual interest in Ms. Flanagan, which he expressed in his 2010-2011 conversations with Detective Constable S.A.;
3. The applicant had expressed a sexual interest in Ms. Flanagan in the 2004-2005 period, had been rebuffed and been angry on this account;
4. He had sex on his mind in the period preceding July 7 through 9, 2007;
5. There was telephoning and texting between him and Ms. Flanagan in the period July 7 to 9, 2007, which he initiated, which contained some sexualized content, and in which he was the more frequent and persistent contributor;
6. The location, timing and circumstances of his encounter with Ms. Flanagan at his apartment afforded a circumstance of privacy within which a sexual encounter could occur;
7. His description of being on top of Ms. Flanagan during the events of the murder could describe a sexual advance by him on her;
8. His description of striking her with a round object and leaving a mark on her head during their encounter could, when considered contextually, describe her resisting a sexual advance by him;
9. It follows from his admission that he burned her clothing that her clothing was removed. That fact could describe an incident of a sexual encounter between himself and Ms. Flanagan;
10. The fact he burned her clothing rather than discarding it in the lake or elsewhere could describe concern on his part that its condition might give rise to consideration of a sexual assault.

The Positions of the Parties

[42] On behalf of the applicant, Mr. Eisen submits that the preliminary inquiry judge relied on speculation, rather than evidence or inferences properly drawn from the evidence to conclude that there was some evidence that the murder occurred while the applicant was committing sexual assault or attempted sexual assault. There was evidence that the applicant had a romantic interest in Ms. Flanagan some two and a half years earlier, but nothing to suggest he had that interest in July 2007. There was evidence that he was hurt and felt used by her when she rebuffed him in 2005, but no evidence that he was angry at her. There is no evidence that there was a phone call to the prostitute about sex as opposed to a “pocket dial”, and in any event a sexual interest in one person is irrelevant with respect to another person. The applicant’s first text message to Ms. Flanagan had no sexual content, and the subsequent texts were just horseplay. The fact that she went to his apartment and the timing of her visit were neutral factors, in light of the evidence of a drug connection between them. Given the applicant’s confession that he strangled her, his description of being on top of her is a neutral factor, as is his description of striking her on the head. The applicant did not give Detective P.S. a detailed description of the events. There was no evidence from his description of burning her clothes that her clothes were removed before or at the time of the murder, rather than after given that this is a case of dismemberment. It is a leap to say that the clothes were burned because they might contain evidence of a sexual assault. There was no evidence of an assaultive act immediately following rejection of a sexual invitation.

[43] Mr. Eisen submits that the committal to trial on a charge of first degree murder should be quashed, and a committal on a charge of second degree murder substituted.

[44] On behalf of the Crown, Mr. Flosman submits that on the whole of the evidence, a jury could reasonably infer that the applicant committed the murder while committing or attempting to commit sexual assault of Ms. Flanagan. Assaulting someone because of a denial of sexual gratification is a sexual assault, based on R. v. Higginbottom (2001), 2001 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.). While some of the inferences that Mr. Eisen suggests are available to be drawn from the evidence, they are not the only available inferences. There is no evidence that the applicant held an animus toward Ms. Flanagan. There is some evidence that he got together with her for a sexual purpose. There is evidence that the applicant was infatuated with her. He was hurt when she rejected him in 2005, he cried about her death to Ms. Dickson, and he told Detective Constable S.A. that he was infatuated with her. The murder occurred while the applicant’s wife was away, and after, it can be inferred, he contacted a prostitute. He initiated contact with Ms. Flanagan at night and persisted in contacting her the next morning. When she responded to him he quickly replied, from which it can be inferred that making contact with her was very important to him. He used the word “sexy” in relation to her, and suggested that they “hook up”. He got together with her in private and at night. He told Detective P.S. that she was at his place for a couple of hours, from which it can be inferred that socializing went on. He said that he was on top of her when he strangled her. This gives rise to an inference of sexual assault, as it is not necessary to be on top of a person to kill them in that manner. The removal of Ms. Flanagan’s clothes and the use of a shirt that was close at hand also gives rise to an inference of sexual assault. It is significant that the applicant described burning only her clothing.

[45] Mr. Flosman submits that the application should be dismissed.

Applicable Legal Principles

(a) The Role of the Preliminary Inquiry Judge

[46] The Supreme Court of Canada confirmed in R. v. Arcuri, 2001 SCC 54 that the test for committal at a preliminary inquiry is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. There must be some evidence of each essential element of the offence charged. The preliminary inquiry judge must consider the whole of the evidence, but he or she does not assess credibility or reliability. Rather, the preliminary inquiry judge must commit an accused to trial where there is “admissible evidence which could, if it were believed, result in a conviction”: Arcuri, at para. 21.

[47] The test is the same whether the evidence is direct or circumstantial. If there is direct evidence as to every element of the offence charged, the preliminary inquiry judge must commit the accused to trial, even if some of the evidence adduced is exculpatory. Where, however, the Crown relies on circumstantial evidence in whole or in part, the judge’s task is more complicated. The question is whether those essential elements on which the Crown has not adduced direct evidence may reasonably be inferred from the circumstantial evidence. Because there is an inferential gap between the evidence and the matter to be established, the judge must engage in a limited weighing of the evidence, in the sense “of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw”: Arcuri, at para. 23.

[48] The task of limited weighing is not an assessment of the credibility or reliability of the evidence. That is for the ultimate trier of fact. It is an assessment of “the reasonableness of the inferences to be drawn from the circumstantial evidence”: Arcuri, at para. 30. The preliminary inquiry judge considers the evidence as a whole, including any exculpatory evidence: Arcuri, at para. 34. Put another way, the preliminary inquiry judge “must engage in a limited weighing exercise in order to determine whether a properly instructed jury could reasonably draw the suggested inferences”: R. v. Slessor, 2007 ONCA 336, at para. 5.

[49] However, where there are competing inferences to be drawn from circumstantial evidence, the preliminary inquiry judge does not weigh them or choose among them. Only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77, at para. 18. As long as there is available a reasonable inference in favour of the Crown, then the preliminary inquiry judge must draw it, regardless of its strength: R. v. Sheardown, 2010 ONSC 4235, at para. 18. Reasonable inferences are not necessarily likely or probable inferences: R. v. Dwyer, 2013 ONCA 368. If “the inferences urged by the Crown are within the field of inferences that could reasonably be drawn, the preliminary inquiry judge must commit for trial even if those are not the inferences that the preliminary inquiry judge would draw”: R. v. Hawley, 2012 ONCA 528, at para. 10.

(b) Inferences Versus Speculation

[50] It is important for the preliminary inquiry judge to maintain the distinction between inference-drawing and impermissible speculation. In R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209, the court held that an inference must flow logically and reasonably from established facts, otherwise it is speculation. This does not mean, however, that the inference must flow easily from the established facts. An inference that is difficult to draw can nonetheless be reasonable and logical: R. v. Katwaru (2001), 2001 24112 (ON CA), 153 C.C.C. (3d) 433 (Ont. C.A.), at p. 444.

[51] In R. v. Munoz, 2006 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.), T. Ducharme J. identified two ways in which inferences are distinguished from impermissible speculation. First, the facts that are said to provide a basis for the inference must be established by the evidence. If those facts are not established, any purported inferences drawn will be speculation. In other instances, the facts are established by the evidence, but the proposed inference cannot be reasonably and logically drawn from those facts. To draw the proposed inference would be to speculate.

(c) The Standard of Review on a Certiorari Application

[52] The role of a reviewing court on a certiorari application is very limited. A reviewing court can overturn the decision of the preliminary inquiry judge only where he or she exceeded his or her jurisdiction, or acted in breach of the principles of natural justice. The mere fact that the preliminary inquiry judge committed an error of law or that the reviewing court would have reached a different conclusion than the preliminary inquiry judge is insufficient: R. v. Russell, 2001 SCC 53, at para. 19.

[53] It is jurisdictional error for a preliminary inquiry judge to commit an accused to trial where there is no evidence on an essential element of the offence charged: R. v. Sazant, at para. 16. Equally, it is jurisdictional error for a preliminary inquiry judge to choose between competing inferences and prefer an inference favourable to the defence over an inference favourable to the Crown; to proceed on an entirely erroneous basis in law such that the Crown’s evidence is not tested against the actual elements of the offence charged; or to overlook evidence and so fail to consider the whole of the evidence: Sazant, at para. 25.

Analysis

[54] Section 231(5) of the Criminal Code treats murders committed “in connection with crimes of domination” as first degree murders because of their high degree of blameworthiness: R. v. Pritchard, 2008 SCC 59, at para. 19. The murder represents an exploitation of the position of power created by the underlying crime: R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618, at p. 633. The murder and the enumerated underlying offence, in this case sexual assault or attempted sexual assault, must be “linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction”: Pritchard, at para. 35.

[55] A sexual assault is an assault that is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated: R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293. Where the accused invites the complainant to engage in a sexual act and intentionally applies force to the complainant immediately following the complainant’s refusal to comply, there is an assault that is sexual in nature: R. v. Higginbottom, at para. 10.

[56] Mr. Eisen on behalf of the applicant did not dispute that there was some evidence upon which a reasonable jury properly instructed could find that the applicant murdered Ms. Flanagan. The issue before the preliminary inquiry judge was whether there was some evidence that the applicant did so “while committing or attempting to commit” a sexual assault of her.

[57] There was some evidence from which a jury could reasonably infer that the applicant had a sexual interest in Ms. Flanagan at the time of her murder. In particular:

• The number and timing of the telephone calls and text messages between them on July 7 through to the early morning of July 9, 2007;

• The fact that the applicant initiated contact with Ms. Flanagan, persisted in his attempts to reach her, and suggested to her that, “We should hook up”;

• The sexualized content of some of the text messages, with the applicant referring to Ms. Flanagan as “sxy lexi”;

• The evidence that the applicant had been infatuated with Ms. Flanagan in the past, and after her death spoke about how much he cared for her and wept;

• The evidence that the applicant’s wife was not at home on the night of July 8-9;

• The evidence that a telephone number belonging to a prostitute called the applicant’s cell phone on the afternoon of July 7. A jury could infer that this was not just a mis-dial, given the applicant’s much later suggestion to Detective Constable S.A. that they pick up a prostitute and take her to his place on an occasion when his wife was away;

• The evidence that Ms. Flanagan met up with the applicant not in a public place, but at his private residence on the evening of July 8 or early morning of July 9; and

• The evidence that Ms. Flanagan and the applicant were alone in his residence for some time.

[58] There was some evidence from which a jury could reasonably infer that Ms. Flanagan’s interest in the applicant was not sexual in nature. She had behaved flirtatiously toward him in the past to get him to share his drugs, but she had not reciprocated his romantic interest in her. As of July 8, 2007, another man considered himself to be her boyfriend. The applicant told Detective P.S. that she was looking for drugs that night.

[59] The preliminary inquiry judge relied additionally on the applicant’s account of the killing to conclude that there was circumstantial evidence from which a jury could find that the murder occurred while the applicant was committing or attempting to commit sexual assault of Ms. Flanagan. Specifically, the preliminary inquiry judge additionally relied on the evidence that the applicant:

• Said he strangled Ms. Flanagan;

• Spoke of hitting her with something round and leaving a mark around her right temple area;

• Suggested that he was on top of her when he strangled her;

• Suggested that he used a piece of fabric that might have been a t-shirt or a “wife-beater” to strangle her;

• Said he disposed of her body parts;

• Suggested that while he threw Ms. Flanagan’s possessions in the lake, he burned her clothing.

[60] The applicant, however, did not say when Ms. Flanagan’s clothing was removed. He did not say that the t-shirt or “wife-beater” was clothing that he removed. He did not say in what fashion he was on top of Ms. Flanagan when he strangled her.

[61] Because neither an intact body nor pieces of clothing or other items were retrieved, there was no additional evidence to provide context for the applicant’s statements and ground an inference that he murdered Ms. Flanagan while sexually assaulting or attempting to sexually assault her. This is not a case like R. v. Johnstone, 2010 ONSC 816, where because of the condition of the deceased’s body when found (naked, except for panties that were pulled down, with bloodied glove marks on the buttocks near the panties) and items at the scene (the deceased’s sweatshirt turned inside out) a jury could reasonably infer that she was sexually assaulted such that a motion for directed verdict of acquittal on a charge of first degree murder failed. See also R. v. Stevens (1984), 1984 3481 (ON CA), 11 C.C.C. (3d) 518 (Ont. C.A.) where the state of undress of the deceased’s body when found, along with cuts in her clothing made by a sharp object and injuries to her body sustained during life were found sufficient to support a reasonable inference that she had been at least indecently assaulted.

[62] I do not suggest that there must always be a body or other physical items in order to support a committal to trial under s. 231(5)(b). I refer to the evidence in Johnstone and Stevens because it exemplifies the bridging of an inferential gap, as exists in this case, by evidence rather than speculation.

[63] Taking the Crown’s case at its highest, there was some evidence from which a jury could reasonably infer that the applicant wanted to get together with Ms. Flanagan for a sexual purpose. There was some evidence from which a jury could reasonably infer that Ms. Flanagan’s purpose in getting together with the applicant was not a sexual one. On the whole of the evidence it was a leap, however, to the further inferences urged by Crown counsel, that the applicant in fact made a sexual advance toward Ms. Flanagan that she rejected or had or attempted sexual contact with her against her will, and that that caused him to murder her. The evidence as a whole did not reasonably permit those further inferences. To conclude that the applicant murdered Ms. Flanagan while committing or attempting to commit a sexual assault of her was no more than an educated guess, in other words, speculation. Crown counsel’s argument that the evidence did not disclose any other explanation for the murder underscores this.

[64] As Ducharme J. said in R. v. Munoz, above, at para. 31, “Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference. Therefore, it is not enough simply to create a hypothetical narrative that, however speculative, could possibly link the primary fact or facts to the inference or inferences sought to be drawn.”

[65] The preliminary inquiry judge exceeded his jurisdiction in ordering the applicant to trial on the charge of first degree murder in the absence of any evidence that the applicant caused Ms. Flanagan’s death while committing or attempting to commit sexual assault of her.

Conclusion

[66] The application for an order of certiorari is granted.

[67] The decision of the preliminary inquiry judge committing the applicant to trial on the charge of first degree murder is quashed. In light of the decision in R. v. Thomson (2005), 2005 8664 (ON CA), 74 O.R. (3d) 721 (C.A.) the matter is remitted to the preliminary inquiry judge with a direction to commit the applicant to trial on the charge of second degree murder.

Justice M.K. Fuerst

Released: June 21, 2013