Publication Ban Warning

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(3.1) An order made under this section does not apply in respect of the disclosure of information by the victim, witness or justice system participant when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim, or witness or justice system participant.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(5.1) If the prosecutor makes an application for an order under subsection (1) or (2), the judge or justice shall

(a) if the victim, witness or justice system participant is present, inquire of them if they wish to be the subject of the order;

(b) if the victim, witness or justice system participant is not present, inquire of the prosecutor if, before the application was made, they determined whether the victim, witness or justice system participant wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (8.2).

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(8.1) If an order is made, the judge or justice shall, as soon as feasible, inform the victims, witnesses and justice system participants who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(8.2) If the prosecutor makes the application, they shall, as soon as feasible after the judge or justice makes the order, inform the judge or justice that they have

(a) informed the victims, witnesses and justice system participants who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(c) informed them of their right to apply to revoke or vary the order.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

Date: 2024-01-24 Docket: C68354

Before: Doherty, MacPherson and Gillese JJ.A.

Between: His Majesty the King, Respondent and Kalen Schlatter, Appellant

Counsel: Jeffery Couse and Jessica Zita, for the appellant Tracy Kozlowski, for the respondent

Heard: January 9, 2024

On appeal from the conviction for first-degree murder entered on March 23, 2020 by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was charged with first-degree murder. The Crown alleged that he sexually assaulted and strangled Ms. Tess Richey at the bottom of a stairwell in an alleyway on Church Street in Toronto on November 24, 2017. The jury convicted and the trial judge imposed the mandatory minimum sentence of life imprisonment without parole for 25 years. The appellant appealed his conviction.

[2] At the end of oral argument, the court dismissed the appeal with reasons to follow. These are the reasons.

[3] The Crown put forward a strong case at trial. The uncontested evidence placed the appellant, Ms. Richey and a friend of Ms. Richey’s walking about on Church Street in the early morning hours of November 25, 2017. The friend left to go home at about 4:00 a.m. At 4:16 a.m., motion detection cameras show the appellant and Ms. Richey walking hand in hand into the alley leading to the stairwell where her body was eventually found. Ms. Richey was not seen alive again.

[4] Forty-four minutes after the appellant and Ms. Richey entered the alleyway, the appellant reappeared on the laneway alone. The motion activated cameras did not detect anyone other than the appellant and Ms. Richey on the laneway after 4:00 a.m. There was evidence that the stairwell could be accessed without triggering the cameras, although that access involved climbing at least one high fence.

[5] In addition to the evidence of nearly exclusive opportunity, the appellant’s semen was found on Ms. Richey’s pant leg and his DNA was found on her clothing.

[6] Two undercover police officers, who posed as prisoners in the cells next to the appellant, testified that he told them he had been arrested “for something big”, and was not sure if he had killed the victim. In addition to the evidence from the undercover officers, the Crown called evidence from an informant who had been the appellant’s cellmate. The informant testified that the appellant told him he had strangled Ms. Richey after she refused to have sex with him. He had then masturbated on her dead body.

[7] The appellant testified. He claimed that he met Ms. Richey and a friend of hers on Church Street after closing time at the bars. They walked around for some time, and eventually her friend left. According to the appellant, he and Ms. Richey walked together up the alleyway, toward the stairwell where her body was eventually found. They engaged in consensual sexual activity. At around 5:00 a.m., he left Ms. Richey alone on the stairwell at her request and went home. The appellant denied strangling Ms. Richey and testified that she was fine when he left her.

[8] In addition to the evidence from the appellant, the defence advanced a “third party suspect” defence, pointing to a man named James Gardener as the potential killer. Mr. Gardener was walking in the same area around Church Street as the appellant, Ms. Richey and a friend of Ms. Richey’s during the early morning of November 24, 2019. He was “looking for sex.”

[9] The video evidence suggested that Mr. Gardener was following Ms. Richey as she, the appellant and Ms. Richey’s friend walked about. Ms. Richey spoke to Mr. Gardener at least once. The defence contended that Mr. Gardener took this as some indication that Ms. Richey had a sexual interest in him.

[10] Cameras captured Mr. Gardener walking in the area of Church Street at different times in the early morning of November 24, 2019. He was last seen at 3:38 a.m., shortly before, on the appellant’s evidence, the appellant and Ms. Richey went into the stairwell where her body was found. Mr. Gardener testified that he went home at 3:38 a.m. He denied assaulting or killing Ms. Richey.

The Grounds of Appeal

(i) Did the trial judge unduly limit the defence questioning of the witness, Gardener?

[11] James Gardener was put forward by the defence as an alternate suspect. The Crown conceded there was an air of reality to the claim, rendering evidence pointing to Mr. Gardener as the killer admissible. Mr. Gardener had testified at the preliminary inquiry.

[12] The Crown chose to not call Mr. Gardener at trial. The defence asked the trial judge to call Mr. Gardener and allow both sides to cross-examine. The trial judge declined to do so. The defence called Mr. Gardener as a witness.

[13] At the outset of Mr. Gardener’s evidence, the defence brought a motion to cross-examine Mr. Gardener at large, submitting that as the defence alleged that he was the killer, Mr. Gardener was clearly contrary in interest to the defence.

[14] The trial judge ruled that the defence application was premature. He held that there was no evidence that Mr. Gardener was hostile to the defence in the sense that he would not give his evidence fairly and truthfully: R. v. Figliola, 2011 ONCA 457, at para. 50. The trial judge decided that the defence questioning of Mr. Gardener should proceed in the normal fashion. The trial judge would determine the nature of questions the defence could ask, and whether Mr. Gardener could be cross-examined, based on the evidence as it actually developed during Mr. Gardener’s testimony.

[15] The trial judge was alive to the various powers he had to control the questioning of a witness, including those available under s. 9 of the Canada Evidence Act, R.S.C. 1985, c. C-5. He told counsel that he did not anticipate he would be “overly rigorous” before permitting cross-examination of Mr. Gardener should it develop that Mr. Gardener had made prior statements that were inconsistent with his testimony.

[16] The defence proceeded to question Mr. Gardener at some length. Counsel then made a second application to cross-examine Mr. Gardener, this time on various specified areas. The trial judge allowed counsel to cross-examine Gardener on some, but not all of the areas identified by counsel.

[17] After defence counsel had finished questioning Mr. Gardener, the Crown cross-examined Mr. Gardener. It is fair to describe Mr. Gardener as a compliant witness for the Crown during cross-examination. In re-examination, the defence sought to “expand the scope of re-examination and allow cross-examination.” The defence also sought leave to cross-examine in certain specific areas.

[18] The trial judge took the same approach he had followed during Mr. Gardener’s examination-in-chief. He ruled against cross-examination at large, but indicated that he would allow cross-examination in specific identified areas. The trial judge also held that some of counsel’s proposed questions were improper re-examination and would not be allowed on that basis.

[19] We see no error in the manner in which the trial judge controlled the questioning of Mr. Gardener. There was no basis to allow cross-examination at large, other than the defence allegation that Mr. Gardener was the killer. The allegation alone says nothing about whether the witness would not respond truthfully.

[20] By adopting a situation-specific approach to the scope of counsel’s questioning of Mr. Gardener, the trial judge ensured that the defence would have an ample opportunity to challenge Mr. Gardener’s evidence and elicit evidence from Mr. Gardener. When pressed during argument in this court, counsel could not refer to any specific area in which the trial judge’s rulings deprived the appellant of a fair opportunity to elicit potentially favourable evidence from Mr. Gardener.

[21] The trial judge was correct to make his rulings with respect to the manner in which Mr. Gardener could be questioned, as the evidence developed and the need arose for those rulings. By following this approach, the trial judge was able to walk the line between adherence to the generally applicable rules governing the questioning of witnesses, and the need to adapt those rules in specific circumstances to ensure that an accused could make full answer and defence and would receive a fair trial.

(ii) The jury instruction on the “third party” suspect

[22] The appellant submits that the trial judge did not deal fairly in his closing instruction with his instructions on the “third party suspect” defence. As we understand this submission, counsel contends that the trial judge, by putting the defence to the jury through a series of rhetorical questions, belittled the defence and suggested it had no merit. In making this argument, counsel relied on R. v. Baltovich, [2004] O.J. No. 488, where this court held that the rhetorical questions used by the trial judge in instructing the jury in that case had ridiculed the defence and skewed the fairness of the trial.

[23] The third party suspect instructions given in this case was legally correct, balanced and detailed, extending over some 20 pages of transcript. The rhetorical questions posed by the trial judge to the jury arose out of the evidence, were even-handed and potentially helpful to the jury in their assessment of the relevant evidence. The defence was fully and fairly put to the jury.

(iii) The Vetrovec warning

[24] The jailhouse informant who testified for the Crown was the epitome of a Vetrovec witness. The trial judge gave a strong and fully deserved Vetrovec warning with respect to his evidence. The trial judge instructed the jury that there was a danger in relying on the informant’s evidence and told them to look for independent evidence that confirmed the informant’s evidence. The trial judge provided two examples of independent potentially confirmatory evidence. In our view, the trial judge was correct in describing that evidence as independent and potentially confirmatory.

[25] The trial judge also referred the jury to certain evidence which was inconsistent with the evidence given by the Vetrovec witness. He reminded the jury that jailhouse informants, like the witness, have ways of giving their evidence false credibility by accessing information that it would appear only the perpetrator of the crime would know. The trial judge also cautioned the jury that false testimony from witnesses like the informant had led to wrongful convictions in the past.

[26] Some of the submissions in counsel’s factum suggest that the trial judge should not have allowed the informant to testify. That argument was not made at trial and was not pressed in oral argument in this court. We are unaware of any authority that would allow a trial judge to prevent an informant from testifying, based on the trial judge’s concerns about the informant’s credibility.

[27] The Vetrovec warning was sufficient.

(iv) The charge on after-the-fact conduct

[28] The trial judge referred to two pieces of after-the-fact conduct as relevant to whether the Crown had proved the appellant killed Ms. Richey. It is not necessary to detail that evidence here. The evidence left with the jury was relevant to whether the Crown had proved the appellant killed Ms. Richey. The trial judge did not suggest the evidence was relevant to any other element of the offence charged.

[29] The trial judge did not specifically tell the jury that the after-the-fact conduct was not relevant to the mens rea required for murder, or to whether the murder was caused during a sexual assault. In a perfect world, the trial judge would have specifically limited the after-the-fact conduct to the issue of whether the Crown had proved the appellant killed Ms. Richey.

[30] We are satisfied that the trial judge’s omission could not possibly have caused any harm to the appellant in this case. The real, if not the only, factual dispute at trial was whether the appellant had killed Ms. Richey. If he did, the case for murder was very strong, and the case for first-degree murder under s. 231(5)(b) of the Criminal Code at least equally as strong.

[31] In the circumstances of this case, the instruction on the after-the-fact conduct was adequate.

(v) The admissibility of the testimony of the undercover agents

[32] The appellant spoke with two undercover officers while he was being held in a jail cell after his arrest. The officers, posing as prisoners, were in the two adjacent cells. The appellant could not physically access the undercover officers.

[33] The conversations were live monitored by officers other than the undercover officers. The conversations were not recorded and no notes were made of the conversations. The officers testified that the conversations were live monitored to protect the undercover officers.

[34] The police did not obtain an authorization under Part VI of the Criminal Code permitting the interception of the appellant’s communications with the undercover officers. Normally, an authorization to intercept those conversations would be required: Criminal Code, s. 184.2(1). The police relied on s. 184.1(1), which creates an exception to the authorization requirement if, among other things, the police believe, on reasonable grounds, that there is a risk of bodily harm to the undercover officers who are engaged in the communication.

[35] At trial, the defence argued there was no risk of bodily harm to the undercover officers. The appellant and the two officers were each in different cells and the appellant could not possibly gain access to either of the officers. He posed no risk to them. The defence submitted that as the interceptions could not be justified under the terms of s. 184.1(1), an authorization for the interceptions was required. In the absence of any authorization, the interceptions and live monitoring of the conversations were unlawful and a breach of the appellant’s s. 8 rights.

[36] The trial judge disagreed: R. v. Schlatter, 2020 ONSC 402. In the trial judge’s view, a broad interpretation of the bodily harm requirement was warranted. He said, at para. 59:

I see no reason to interpret the words “risk of bodily harm” narrowly reaching only physical harm caused by a target. Applying the modern approach to statutory construction, I am firmly of the view that they are broad enough to encompass all risks of bodily harm, including psychological harm, that might arise in an undercover operation.

[37] The trial judge went on to hold that, in any event, the undercover officers’ evidence could not be excluded under s. 24(2) of the Charter. He noted that the interceptions made pursuant to s. 184.1(1) were inadmissible under s. 184.2(1). He also noted that the officers testified only about their recollection of the conversations with the appellant. The Crown did not seek to tender any recording of the conversations. Relying on R. v. Fliss, 2002 SCC 16, per Binnie J., at paras. 43-45, the trial judge concluded, that regardless of the legality of the interception of the conversations, the officers were entitled to testify based on their own recollection of the conversations.

[38] While we agree with the trial judge that the phrase “risk of bodily harm” should be given a broad interpretation in s. 184.1(1), we find it unnecessary to decide whether that criterion was met on the evidence adduced in this case.

[39] We agree with the trial judge that there was no basis to exclude the evidence of the officers’ recollection of the conversations under s. 24(2) of the Charter, even if the live monitoring of the conversations could be said to have resulted in a breach of s. 8. The appellant had no reasonable expectation that the persons in the adjoining cell would hold whatever he told them in confidence: see R. v. Lambert, 2023 ONCA 689, at para. 58. The officers’ testimony as to their recollection of the conversations did not breach the appellant’s privacy rights under s. 8 of the Charter.

Conclusion

[40] As indicated at the end of oral argument, the appeal is dismissed.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”