



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Keene, 2020 ONCA 635

DATE: 20201008

DOCKET: C61966

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.

Strathy C.J.O.:



[1]

The 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.

[2]

For the reasons that follow, I would dismiss both the conviction
appeal and the sentence appeal.

A.

Background

[3]

Alexandra 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 victims
DNA were detected in his hockey bag, he was not charged.

[4]

There 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
.

[5]

While 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.

[6]

The 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 appellants wife and the officers
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.

[7]

The 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.

[8]

The appellant ultimately disclosed the details of Ms. Flanagans
murder by one of the methods described in
Hart
,
at para. 60. Mr. Big offered to solve the appellants problems with the police
by getting an associate, already serving a life sentence for murder, to confess
to Ms. Flanagans murder. Mr. Big told the appellant that he needed sufficient
details of the crime to make the associates confession credible. The appellant
identified a previously unknown location where he had disposed of part of the
victims remains. His arrest and charges followed.

[9]

It is unnecessary for the purpose of this appeal to describe all
the events leading up to this finale. However, four particular events ground
the appellants 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 Ill give you my life.

(1)

The troublesome woman

[10]

In 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.

[11]

The 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.

[12]

In early October 2011, the undercover officer
appeared at the appellants 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

[13]

On 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.

[14]

This led to a discussion between the appellant and the undercover
officer in the latters 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.

[15]

The 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

[16]

The appellant was also rattled by the encounter
with the detective. He responded to the undercover officers 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. Bigs knowledge about the police
interest in the appellant.

(4)

If you can make this [problem] go away Ill
give you my life

[17]

About 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 appellants problem, but said
that it was also his (Mr. Bigs) 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.

[18]

Mr. 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 appellants problems go away. Mr.
Big noted that he had to make the appellants problem go away in a big hurry
because it was a liability and the appellant was too close to him.

[19]

The appellant repeatedly denied that he had
killed Ms. Flanagan. However, the appellant was worried that he would fry for
somethin I didnt 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.

[20]

At 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. Flanagans
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.
Bigs resources and contacts gave him access to confidential Barrie police
information.

[21]

The 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 Ill give you my life I guarantee therell 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 youre not an
undercover officer? The Mr. Big character replied with words to the effect of,
[d]ont ever question me. The appellant apologized, they shook hands, and
returned to the hotel room.

[22]

Mr. Big and the appellant continued to discuss
how Mr. Big would make the appellants 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 youre 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. Bigs questions, but since he
struggled to remember the details, the conversation ended shortly thereafter.

[23]

The 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 victims body. The appellant said that Ms. Flanagans 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. Flanagans torso.

[24]

The 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 youre a liability an [you] thinks theyre gonna
kill you, youll tell them anything.

B.

THE
Hart
Framework

[25]

Mr. Keenes 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.

[26]

In
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 accuseds participation in the fictitious criminal
organization; and

·

the potential for police misconduct in the
pursuit of a confession.

[27]

Hart
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

[28]

Hart
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] 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.

[29]

Moldaver 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.

[30]

Moldaver 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

[31]

If 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.

[32]

When 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.

[33]

The 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 accuseds 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 judges ruling on the crown application

[34]

The 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.

[35]

In the trial judges 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 detectives 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.

[36]

The meeting between Mr. Big and the appellant
occurred six days after the latters 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.

[37]

The trial judge found that the appellants 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 Services continuing interest in him, rather than the
organization potentially using violence against him. According to the trial
judge, it was the appellants acceptance of Mr. Bigs 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.

[38]

The 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.

[39]

The 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. Flanagans death.

[40]

The trial judge found that there was a risk of
moral prejudice and ultimately reasoning prejudice arising from the appellants
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 Crowns 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 appellants
participation in discussions concerning the disposal of the troublesome
woman.

D.

PARTIES Submissions

[41]

The 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. Bigs 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.

[42]

The Crown, citing
Hart
, responded to
the appellants 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.

[43]

The 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 judges 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

[44]

The appellant makes no complaint about the trial
judges 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 appellants confession.

[45]

The 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.

[46]

The 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 judges
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

[47]

The 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.

[48]

However, 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 appellants
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

[49]

The 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. Flanagans 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 Ill
give you my life

[50]

After 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.

[51]

Mr. Big affirmed that the police interest in the
appellant was a problem for the organization. However, Mr. Big asked about the appellants
involvement in Ms. Flanagans 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 appellants
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 Ill give you my life.

(b)

The trial judge did not err in his analysis of
abuse of process

[52]

During the
voir dire
into the
admissibility of the appellants 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.

[53]

The trial judge found that none of the scenarios
in the operation, including the ones outlined above, were coercive and led to the
appellants will being overborne.

[54]

After 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.

[55]

When 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
organizations 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.

[56]

The 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.

[57]

The 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.

[58]

The trial judges 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.

[59]

Ultimately, the appellant was carrying a
terrible burden and felt the police closing in on him. He willingly and
gratefully accepted Mr. Bigs 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. Bigs 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 Ill 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.

[60]

For these reasons, I would dismiss the
conviction appeal.

(2)

The sentence appeal

[61]

At 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.

[62]

Section 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.

[63]

The trial judge carefully looked at the mitigating
circumstances that favoured the appellants 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.

[64]

However, 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 victims visit to him; and

·

the appellant had no insight into the horror
that he has vested upon Alexandra Flanagans family.

[65]

The 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] 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.

[66]

The 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 judges
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 appellants home was
not itself aggravating. There was no evidence that he lured her there. Nor was
there any evidence of planning. The appellants 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.

[67]

It 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.

[68]

This 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.

[69]

Since 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.

[70]

The 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 appellants
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.

[71]

The evidence in relation to the dismemberment of
Ms. Flanagans 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 appellants 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 appellants actions.

[72]

Even acknowledging the issues identified by the
appellant with respect to the trial judges 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. Flanagans murder and the events after it warrant
a period of parole ineligibility at the upper end of the range.

[73]

I 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

[74]

For 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.


