THURSDAY, JULY 2ND, 2015

R E A S O N S F O R S E N T E N C E

MULLIGAN J. (Orally):

Andrew Keene was convicted by a jury of second degree murder in the killing of Alexandra Flanagan. The jury also convicted him of performing an indignity to a human body by dismembering her remains. I am now called upon to impose sentence on both counts and to consider the period of parole ineligibility. Andrew Keene is hereby sentenced to prison for life, the mandatory minimum sentence for second degree murder. The issue of whether or not he will ever be eligible for parole will ultimately be up to the National Parole Board at some time in time in the future.

Under Section 745(4) of the Criminal Code a trial judge can increase the period of parole ineligibility from the statutory minimum of ten years, but the following factors are to be taken into consideration: any recommendations made by the jury, the nature of the offence, the circumstances surrounding the commission of the offence and the character of the offender.

The position of Crown counsel and defence on

parole ineligibility can be simply stated. The Crown submits that the period of parole ineligibility should be 20 years. The defence acknowledges that the period of parole ineligibility ought to be in the range of 12 to 13 years, or perhaps, at most, 15 years.

I’ll have more to say about their respective positions later in these reasons.

Before embarking on the analysis, I want to make it clear to the family and friends of Alexandra Flanagan that nothing I do here will ever alleviate the pain and grief that they have suffered for the loss Alexandra.

Recommendations of the Jury

In this case, the jury almost unanimously recommended that the period of ineligibility for parole not be commenced until 25 years have been served. One juror made no recommendation, one juror recommended 15 years and one juror recommended 20 years. But, I pause to note the jurors’ recommendations are just that. As Laskin J.A. noted in R. v. Olsen 1999 1541 (ON CA), [1999] O.J. No. 218 at paragraph 57,

“Jurors, of course, are not given any guidance on the principles of underlying s. 745(4) of the Code, but are simply asked the question prescribed in s. 745.2. It is the trial judge, not the jury, who must impose a fit period of parole ineligibility, a period that does not bring the criminal justice system into disrepute.”

The Character of the Offender

Mr. Keene is now 32 years of age. This offence happened in 2007. He has no previous record. At the time of the offence, he had developed a common-law relationship with Sylvie Desjardins. They continued to reside together and have a child. They are now separated. Mr. Keene has a high school education and a welding certificate. Although it is acknowledged that he had a drug problem he was able to maintain successful employment with a series of employers over the years. His parents divorced when he was young. He has three sisters. Many family members were in court throughout this trial. The evidence indicates that he shared his drug problems with others, often attending weekend drug parties where there was an abundance of drugs available, including cocaine, ecstasy, ketamine and mushrooms. For a while, he shared a friendship with Alexandra Flanagan and they would see each other at these parties, even while he was in a relationship with Sylvie Desjardins. As well as a child by way of his relationship with Sylvie Desjardins, he has a ten-year-old son by way of a previous relationship, whom he has no contact with. He has medical issues requiring prescription medication. He has been incarcerated since his arrest on October 20, 2011.

Circumstances of the Offence

On July 7, 2007, Mr. Keene and Sylvie Desjardins were residing together in an apartment on Rose Street in Barrie. Sylvie went north to visit with her family for a week. Mr. Keene had a week’s vacation from his employment. He bought a Texas Mickey. The cell phone records indicating communications back and forth between Mr. Keene and Ms. Flanagan were numerous in that time period. The full content of the text messages was not available to the authorities, but it is clear that Mr. Keene invited her over to his apartment. It is clear that she accepted that invitation. The location of her blood in his hockey bag and various admissions to undercover officers make that clear. He told the undercover officer that he strangled her, he may have hit her on the head, and dismembered her. After dismembering her, he disposed of her body parts in various locations around the community. How he dismembered her was made graphically clear in the evidence of Dr. Gruspier, forensic anthropologist. I need not repeat that here. After disposing of the body parts during the night, Mr. Keene obviously went to great lengths to remove all traces of blood within the premises, In the days that followed, he made two trips to a laundromat. When Sylvie returned, the apartment was found to be clean. A subsequent search warrant several months later showed no traces of blood within the apartment other than within the seized hockey bag.

Alexandra Flanagan was reported missing. Police conducted extensive searches. Other people were interviewed as possible suspects. Mr. Keene was also interviewed and he lied by saying he had not seen her since the previous New Year’s.

Members of the community, passers-by, found body parts at two distinct locations in the months that followed. DNA evidence established that these were part of the human remains of Alexandra Flanagan. The third body part, the torso, was not discovered until Mr. Keene made admissions to the undercover officer. He thought when making these admissions and providing facts attention would be diverted from him as a suspect and that an individual presently in prison would report sufficient details and confess to the crime to take an elephant off his back, as he stated to the officer playing Mr. Big.

Victim Impact Statement

For several months, Alexandra Flanagan’s family had no knowledge about her whereabouts. It started out as a missing person’s case. It was only later that the horrible reality hit home. Her body parts were found by complete strangers, scattered at different locations within the community.

Victim Impact Statements were provided by Ms. Flanagan’s sisters, her aunt, and her parents. Her sister, Noelle, stated:

When we lost Alex, we lost a daughter, a sister, an aunt, a cousin, a friend, and someone who made the world a better place, simply by being herself. The murder of Alex has changed me, has changed our whole family. We have lost so much because of her horrific death.

But nothing sums up the loss better than the words of her mother who stated, “Nothing in this world can be more tragic, more painful, more devastating, or life-changing than to have your child murdered.”

Mitigating and Aggravating Circumstances

In any consideration of increasing parole ineligibility, it is important to review the mitigating and aggravating circumstances surrounding an offender. In mitigation, Mr. Keene has no criminal record. He had a good work history and was in a stable domestic relationship. There was no history of any domestic violence with his partner at the time.

Although he did not plead guilty, I do not consider that an aggravating factor. But, he loses the benefit that otherwise might flow from a plea of guilty and any expression of remorse.

On the other hand, there are a number of aggravating factors in this case:

(i) Mr. Keene invited Alexandra Flanagan to his home on the basis of their friendship. She had no reason to fear for her safety. She was a vulnerable young woman.

(ii) The murder occurred while Ms. Flanagan was in the safety of his home. The dismemberment of her body was methodical, cold, cruel and calculated.

(iii) In order to deceive the authorities, and perhaps her family members, he distributed her body parts in various locations around the community where it was likely that some, if not all of the parts, would be discovered by unsuspecting passers-by, perhaps even by children at play.

(iv) His deception continued by lying to authorities. He told them at one of his first interviews that he had not seen her since New Year’s.

(v) Although Mr. Keene did not have a criminal record, he clearly had a drug problem. Access to drugs in his possession may have been a reason for Ms. Flanagan’s visit to him.

(vi) There is nothing in the record before me that shows Mr. Keene has shown any insight into the horror that he has vested upon Alexandra Flanagan’s family.

Analysis

Both Crown and defence filed numerous cases providing guidance as to decisions of trial judges, and the Court of Appeal, with respect to increased periods of ineligibility on the facts before them. Both defence and Crown counsel acknowledge the fundamental principles as established by the Supreme Court of Canada in R. v. Shropshire 1995 47 (SCC), [1995] 4 S.C.R. 227. As Iacobucci J. stated for the Court as paragraph 27,

“In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner: as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be "unusual", although it may well be that, in the median number of cases, a period of 10 years might still be awarded.”

Many of the cases relied upon by defence and Crown counsel are domestic relationships whereby an accused murdered a spouse and was convicted of second degree murder. The defence relied on a number of decisions, including R. v. Teske 2005 31847 (ON CA), [2005] O.J. No. 3759. The Court of Appeal reduced the trial judge’s finding of a parole ineligibility of 16 years to one of 13 years. The offender did not have a criminal record but there was a history of domestic violence. The court made reference to R. v. McKnight (1999) 1999 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont.C.A.), which established a range of 12 to 15 years for parole ineligibility in cases of domestic violence. The Court of Appeal noted that the trial judge had not explained why it was necessary to go above this range in imposing 16 years. Absent a clear reason from the trial judge for departing from the range, the Court of Appeal imposed a 13-year period of ineligibility.

Defence also relies on R. v. Chalmers [2009] O.J. No. 1254. The Court of Appeal did not interfere with the trial judge’s imposition of a 14-year period of parole ineligibility for second degree murder of a spouse. In the circumstances of that case, most of the jury recommended the minimum ten-year period of ineligibility.

It would appear that the Court of Appeal has now established that in a domestic violence case, the range of parole ineligibility would be 12 to 17 years. The jurisprudence was reviewed recently by Glass J. in R. v. Borbely [2013] ONSC 3355. In imposing a period of ineligibility of 17 years, His Honour referred to the Court of Appeal decision in R. v. Czibulka 2011 ONCA 82, [2011] O.J. No. 372. As Laskin J.A. noted in Czibulka at paragraph 69,

“In the case before us, the trial judge took Wristen to reflect the upper end of the range, and I do not see how he can be faulted for doing so. At trial, both Crown and defence accepted a range of 12 to 17 years.”

Although this case before me is not a domestic violence case in the traditional sense, it is more akin to that situation than a gangland shooting of rivals or a bar room brawl amongst combatants.

In R. v. Arashvand 2012 ONSC 5852, [2012] O.J. No. 5255, Fuerst J. imposed a 15-year period of ineligibility for an offender who stabbed a man and then attempted to burn his body. That was not a domestic violence case. The court noted a number of aggravating factors, including his after-the-fact conduct. Lack of a record was a mitigating factor. In imposing a period of 15 years, Her Honour concluded that a period of 20 years sought by the Crown was excessive.

The Crown relied on R. v. Van Osselaer [2004] B.C.C.A. 3, a British Columbia case which was upheld by the British Columbia Court of Appeal after the trial judge imposed an 18-year period of ineligibility. The victim was the accused’s landlady. The accused had a criminal record, was a drug addict, and the circumstances of the offence were said to be horrific.

In R. v. Crane [2007] A.B.C.A. 413, the Alberta Court of Appeal did not interfere with the trial judge’s imposition of a 22-year period of ineligibility. The accused stabbed and killed a taxi driver. The jury’s recommendations were mixed. The accused had a lengthy criminal record with many convictions for assault, including an assault he committed while he was in custody at a correctional facility.

Conclusion

I have considered the offence and the circumstances surrounding its commission, the recommendations of the jury, and the character of Mr. Keene. I have reviewed and considered the case law provided by the Crown and defence counsel, and the authorities that they have submitted. The cases are clearly fact-driven, but governed by the guiding principles established by the Supreme Court of Canada in Shropshire. There are few mitigating circumstances here. On the other hand, there are a number of aggravating circumstances, including Mr. Keene’s after-the-fact conduct in dismembering Alexandra Flanagan’s human remains and secretly disposing of them in locations in the community. In my view, all the circumstances when looked at globally, take the minimum period of parole ineligibility to a much higher level than the minimum established in the Criminal Code.

Mr. Keene, please stand. I sentence you for the

second degree murder of Alexandra Flanagan to life imprisonment without parole eligibility for 17 years. You are therefore not eligible for parole until October 20, 2028. However, after serving at least 15 years of the sentence, you may apply under s. 745.6 of the Criminal Code for a reduction in the number of years of imprisonment without eligibility for parole. If the jury hearing the application reduces the period of parole eligibility, you may make an application for parole under the Corrections and Conditional Release Act at the end of that reduced period.

On Count 2, indignity to human remains, I sentence you to the maximum permissible under the Criminal Code, five years. This sentence is concurrent to the life sentence I have just imposed.

Additional Orders

As requested by the Crown, there will be a mandatory lifetime weapons prohibition order and a DNA order.

In addition, there will be a no-contact order with respect to the following individuals:

(i) Gerry and Wendy Flanagan;

(ii) Noelle Carroll;

(iii) Michelle O’Hara; and

(iv) Linda Lehman.

There should also be a no-contact order with respect to Sylvie Desjardins, except through legal counsel or through a valid family court order or through a third party for the purpose of accessing communication with the child of your relationship, that is Aiden Desjardins.

So, a warrant of committal will be endorsed to reflect that Mr. Keene’s life sentence began to run on the date of his arrest, October 20, 2011.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Monica Beattie, certify that this document is a true and accurate transcript of the recording of R. v. Andrew Keene in the Superior Court of Justice held at 75 Mulcaster Street, Barrie, Ontario, on July 2, 2015, taken from Digital Recording No. 3811-04-20150702, which has been certified in Form 1.

July 21, 2015_ ________________________________

Monica Beattie - ACT #4501366590