COURT FILE NO.: CR-18-70000715-0000 DATE: 20200305
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN – and – KALEN SCHLATTER
Counsel: Beverley Richards and Jennifer Stanton, for the Crown Lydia Riva and Jessyca Greenwood, for Kalen Schlatter
HEARD: February 10-12 and 18, 2020
By virtue of s. 648(1) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury hearing this trial retires to consider its verdict.
M. Dambrot J.:
[1] This ruling concerns the admissibility of text messages extracted from the cell phone of the accused.
BACKGROUND
[2] Kalen Schlatter is being tried by me with a jury on an indictment alleging that he committed the first degree murder of Tess Richey in Toronto on November 25, 2017. The Crown’s case includes evidence of a statement made by the accused to two undercover police officers (“UC1” and “UC2”) in police cells after his arrest. The accused challenged the admissibility of this statement in an application heard before the jury was empaneled. His counsel argued that the undercover officers violated his right to silence guaranteed by s. 7 of the Charter. I dismissed his application to exclude the statement, and UC1 and UC2 have both testified before the jury about the circumstances of the taking of the statement and its content.
[3] Although the objective of hearing motions before a jury is empaneled is, in part, to enhance the flow of the trial and to minimize interruptions that require the jury to retire to the jury room, circumstances inevitably arise in every case that require the jury to be absent. This trial has unfortunately been marked by many such interruptions. The jury has been out of the courtroom far too often. This motion is an example.
[4] On February 24, 2020, shortly before lunch, in the course of the Crown’s case, Crown counsel called D.C. Garcia as a witness. D.C. Garcia is a forensic computer examiner in the Technical Crimes Unit of the Toronto Police Service. He was assigned the task of extracting data from the accused’s cell phone that included text messages, and generating reports that organize the data in a manner that makes it possible to read the text messages. Before D.C. Garcia could be sworn as a witness, counsel for the accused asked that the jury retire. Counsel then said that upon reviewing the report “this morning”, counsel observed that there was a lot of discreditable conduct in the texts. Counsel took the position that the text messages were inadmissible on the basis that the messages were entirely irrelevant, and that some of them contained impermissible disposition evidence. They asked to have the afternoon to prepare their submissions.
[5] I was taken by surprise by this request. I was advised that the texts had been disclosed to the defence long before trial, although not in the precise format that the Crown now proposed to employ. Nevertheless, I gave the defence the time they requested, and heard their argument the following morning. At the end of the argument, I admitted the evidence subject to the removal of a few of the texts, with reasons to follow. I would have preferred to have dealt with this matter as a pre-trial motion, and to have had the time to review the texts carefully. But I chose to rely on the characterizations of the texts made by counsel in order to avoid further delay.
ANALYSIS
[6] I begin with the argument that this evidence is irrelevant.
[7] As I have already noted, after the accused was arrested, he was placed in a police cell along with two undercover officers. In the course of their time together, the accused spoke freely to the officers. Much of what he said concerned himself, but some of what he said concerned the events leading up to the death of Tess Richey. While the accused’s statement ultimately is exculpatory, it includes a great many admissions that advance the Crown’s case. The communications between the accused and the undercover officers were not recorded. The accounts of it testified to by the officers come from their recollections, refreshed by their contemporaneous hand-written notes.
[8] A significant feature of the defence in this case has been an attack on the credibility and reliability of the accounts of the conversation in question testified to by the officers. In addition to challenging the ability of the officers to accurately recall the details of the statement, allegations have been made that UC1 in particular was secretly recording the conversation, was actively eliciting a statement about the offence and even was knowingly attributing things actually said by him to the accused.
[9] It is important to note that counsel for the accused took no objection to the admissibility of any part of the accused’s revelations to the undercover officers about himself. That part of his statement included descriptions of: his interest in and prowess at board games; his sexual exploits with women and his high rate of success (for example, he boasted that he had slept with 40 women and he was only 21); his techniques that made him successful with women, including frequenting gay bars and board game cafes where many “hot” women were available; his nude modelling for art students and his sleeping with some of them, contrary to the rules; his comfort with nudity; and his stone carving and his gifting of his work to women to assist with his conquests.
[10] There is nothing unlawful or truly discreditable in the accused’s account of himself, but it would not surprise me if there were jurors who might disapprove of some of Mr. Schlatter’s lifestyle. I would certainly have given serious consideration to a request to edit some of this evidence if asked, but I was not asked. I can only assume that the defence made a tactical decision not to do so. After all, the length of the conversation might support their attack on the unlikelihood that the officers could remember so many details of their conversation with the accused. And the number and nature of the topics discussed is a necessary component to the defence argument that the officers were raising these topics and were doing so as part of their scheme to elicit a statement. These attacks, of course, could only be intended to undermine the credibility and reliability of the officers’ accounts of what the accused said about the hours leading up to the homicide.
[11] In response, the Crown focuses on the many matters in evidence that support the credibility and reliability of the evidence of the undercover officers. It must be remembered that the homicide investigators could have had little knowledge about many of the topics discussed by the accused, and the undercover officers had next to none. Covert Operations handlers, in setting up a cell insertion deployment, ensure that the undercover officers know virtually nothing about the target offence or the target suspect, to help ensure that they do not elicit a statement. That was the case here. UC1 and UC2 knew the name of the accused, the name of the deceased, the fact that this was a homicide investigation, the general area where the deceased’s body was found and the fact that the accused liked board games. As a result, the more that the details of what the accused said about himself and about the events leading up to the death of Tess Richey are accurate, the more the credibility and reliability of the undercover officers’ evidence is enhanced.
[12] In fact, a great deal of what the accused said about the evening of November 24, 2017 is verified by the evidence accumulated by the homicide investigators. The text messages are capable of playing the same role with respect to the accused’s statements about himself. They reveal his interest and purported prowess with board games; his avid pursuit of women; his employment of his techniques for success; his boasts about his high rate of success; his nude modelling; his comfort with nudity – to the extent of sending a woman a nude photograph of himself with his penis erect; his pursuit of art students; his stone carving and gifting of his work; and other details.
[13] Again, some jurors might not find all of this flattering, but it cannot reasonably be argued that it is irrelevant. These details are capable of lending strong support to the credibility and reliability of the evidence of the undercover officers about their conversation with the accused.
[14] With respect to the argument that the evidence under review is impermissible disposition evidence, I say the following. First, that is not its purpose. It is led to support the credibility and reliability of the accused’s assertions about the night of the homicide recounted by the undercover officers and is of great weight in advancing that purpose. Second, it says nothing about a disposition to kill on the part of the accused, or even to engage in non-consensual activity. At the most, it shows an enthusiasm for sex, perhaps a not uncommon attribute of a 21-year-old male. And third, with a few exceptions that I will address momentarily, it raises nothing about the accused’s lifestyle or activities that is not already in evidence. In my view, its probative force strongly outweighs its prejudicial value with one exception.
[15] Despite what I have said, there are three parts of this evidence that should not go to the jury. I say immediately, to the credit of Crown counsel, that they raised no objection to this view, and indeed had already taken that view in relation to some of what I raised. First, some of the texts refer to violent, albeit consensual sex. In a case where the Crown alleges that the accused killed the deceased in the course of sexual activity that included choking, the prejudicial effect of this evidence is too great. It had to be removed. Second, some of the texts include descriptions of the accused masturbating. This is likely not terribly prejudicial, but is irrelevant, and had to be removed on that basis. Third is the nude photograph of the accused that I made reference to. While it is relevant because it confirms the accused’s comfort with nudity, it is unnecessary. The point can be made with a simple description of the photograph.
[16] Finally, I note that there are a great many text messages that are completely irrelevant but are also entirely benign. While they could be excluded, I formed the view that if I admitted the impugned text messages, it would be better for the jury to see that they formed only a small portion of the accused’s texting. His life was not entirely focused on games and sex. When I raised this with counsel for the accused, they agreed. Accordingly, I admitted those texts along with the others.
DISPOSITION
[17] The text messages are admissible, with the three exceptions enumerated in these reasons.
M. DAMBROT J.