BARRIE COURT FILE NO.: CR-12-220

DATE: 20141208

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDREW KEENE
Defendant

M. Flosman and S. Tarcza, for the Crown

M. Eisen and N. Riley, for the Defendant

HEARD: November 12, 2014

RULING ON APPLICATION TO INTRODUCE PHOTOGRAPHS

MULLIGAN J.:

[1] On October 20, 2011, Andrew Keene was charged with first degree murder of Alexandra Flanagan. He was also charged with indignity to a human body. He now faces charges of second degree murder and indignity to a human body. The Crown and defence brought a number of applications, seeking rulings before the jury is empanelled for the trial scheduled to commence in June of 2015. The Crown alleges that Mr. Keene murdered Alexandra Flanagan in his Barrie apartment in July of 2007, following which he dismembered her body and distributed the body parts to various locations in Barrie.

[2] In this application, the Crown seeks to introduce a series of five photographs showing Alexandra Flanagan in various social situations prior to her death. Several of the photographs depict her with friends or family members. The Crown submits that the photographs are relevant and that they have some probative value: specifically, they depict the small size and stature of Ms. Flanagan and may well assist the jury if it is raised that there was a consent fight between Alexandra Flanagan and Andrew Keene. Further, the Crown submits that there is little prejudice in photographs that put a human face on the victim of this crime.

[3] The defence acknowledges that the prejudice from these particular photographs is low, but argues that they provide no probative value and may lead the jury to have sympathy for the victim, distracting their task. Defence agrees that her size and stature is conceded as a relevant issue, but it is an issue that is better addressed in other ways. The defence has offered to sign an Agreed Statement of Facts with respect to the victim’s size and stature, or will otherwise provide an undertaking not to challenge such evidence if introduced by the Crown.

Analysis

[4] Crown and defence pointed to a number of cases where the principles with respect to photographs being introduced to a jury have been reviewed. As Justice Fuerst noted in R. v. Wills, [2007] O.J. No. 52 at paras. 19-20, and 22:

Photographic images of the deceased can be relevant to the issues in a murder trial in any number of ways.

Whether the images are admissible, however, turns on a balancing of probative value and prejudicial effect.

The onus is on the defence to demonstrate that the prejudicial effect of the evidence outweighs its probative value. [Citations omitted.]

[5] In R. v. R.(P.) (1990), 58 C.C.C. (3d) 334 at 347, Doherty J. set out a three-step process that an applications judge should consider: first determine the probative value, then determine the prejudicial effect, and lastly, consider the following approach:

The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.

[6] In R. v. Araya, an unreported decision dated October 6, 2007, Justice McMahon dealt with a photograph taken about a year before the deceased’s death. As he noted, “The photograph simply depicts this young man smiling, and the photo is from the shoulder up. There is nothing special about the photograph other than it depicts who [the deceased] was.” After considering the probative value and the prejudicial effect, McMahon J. stated, “I find that the risk of prejudice to Mr. Araya in these circumstances is minimal. Any possible prejudice will be dealt with both in my opening instructions to this jury and my final charge.”

[7] In R. v. Willimott, [2000] O.J. No. 6056, Dambrot J. dealt with a photograph of the deceased taken sometime before his death at a birthday party. As Dambrot J. noted at paras. 30-31:

Balanced against this less than overwhelming show of relevance, I confess that I see absolutely no prejudice in the jury seeing the rather ordinary face of the deceased in life shortly before the killing. … There is nothing disturbing or unpleasant about the photograph. … I see no need to sanitize a criminal trial, even a murder case, to the extent that it is robbed of all traces of humanity and resembles nothing more than a logical puzzle for the jury to solve.

Conclusion

[8] I am satisfied that the Crown can show one photograph –marked as page 2 of 5 in the Crown’s application—to the jury. This photograph simply shows Alexandra Flanagan standing between two women in formal dress at a wedding or similar social occasion. It clearly depicts her small stature, at least with respect to the people that she is standing beside. It may provide some probative value relevance and it certainly puts a human face on the victim. I am satisfied that this may provide some assistance to the jury. These are not post-mortem photographs of the kind reviewed by Justice Fuerst in R. v. Wills. In my view, the prejudicial effect is low and any concern that the jury would have undue sympathy can be overcome by an instruction to the jury panel at the beginning, and again in the Charge at the end of the trial.

[9] In most other crimes of violence, including aggravated assaults and attempted murders, the jury sees the human face of the victim or complainant in the courtroom. In a homicide trial such as this, I see no reason why the jury should not see a photograph of the victim in otherwise innocent social situations.

[10] The Crown’s application is granted in part with respect to one of the photographs, shown as page 2 of 5.

MULLIGAN J.

Released: December 8, 2014