Court File and Parties

COURT FILE NO.: CR-18-70000715-0000 DATE: 2020-02-03 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 the Accused

HEARD: January 13-15, 2020

By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.

M. Dambrot J.:

[1] 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. This ruling concerns an application by the Crown for an order admitting evidence of Mr. Schlatter’s prior discreditable conduct. It was brought in response to notice being given by counsel for the accused of their intention to assert that James Gardiner was an alternate suspect.

Background

The Crown’s Case

[2] The pertinent allegations can be briefly stated. On Saturday November 24, 2017, shortly before midnight, the deceased, Tess Richey, attended the Crews and Tangos bar, located at 508 Church Street in Toronto, where she met her friend Ryley Simard by pre-arrangement. The accused was also present at the bar that evening. He and the deceased were strangers and did not interact in the bar.

[3] The deceased and Ms. Simard left the bar at about 2:30 a.m. and walked north on Church Street. The accused followed them at a distance. At 2:45 a.m. Ms. Richey walked by a TD Bank located at 65 Wellesley Street, at the south-west corner of Church and Wellesley. The bank had an external ATM. At 2:46 a.m., Ms. Richey and Ms. Simard continued west on Wellesley, followed by the accused. At 2:47 a.m., a man named James Gardiner conducted a transaction at the bank ATM, in the vicinity of Ms. Richey, Ms. Simard and Mr. Schlatter.

[4] At 3:00 a.m. Ms. Richey, Ms. Simard and Mr. Schlatter were at a hot dog stand near the bank where they purchased hot dogs. Mr. Schlatter paid for them. At 3:12 a.m., the same three people were at 576 Church Street, still walking north. Mr. Gardiner was in the vicinity, standing across the street.

[5] Ms. Richey, Ms. Simard and Mr. Schlatter then continued north past Dundonald Street. At 4:14 a.m., Ms. Simard left Ms. Richey with Mr. Schlatter and went home in an Uber. The accused and the deceased continued north past Dundonald. They turned west on a walkway toward a Victorian house that was under construction and unoccupied at 582 Church, just north of Dundonald. The driveway led to a side door and an external stairway leading down to a basement access into the premises. Mr. Schlatter was recorded on a security camera on site leading Ms. Richey by the hand toward the premises, and out of sight of the camera.

[6] At 5:00 a.m., Mr. Schlatter re-entered the view of the camera walking alone away from the area of the external staircase back out to Church Street. He then walked north on Church.

[7] Ms. Richey was never seen walking away from the building. Her sister reported her missing on November 25, 2017. On November 29, 2017, Ms. Richie’s dead body was found by her mother at the bottom of the external staircase.

[8] An autopsy was conducted on December 1, 2017. The cause of Ms. Ritchie’s death was determined to be “neck compression.” In addition, her arms, the back of her right hand and the back of her left wrist were bruised. These may have occurred during a struggle, with the possible element of restraint. There was also a scrape on the ring finger of her left hand, an injury to her left forehead and scalp hemorrhaging. It was also determined that she was menstruating.

[9] DNA from Mr. Schlatter’s semen was located on the outside left thigh area of the deceased’s pants. A mixture of three contributors of DNA was found on the right cup and the right strap of her bra and the front left shoulder of her sweater. The contributors were Ms. Richey, Mr. Schlatter and an unknown person.

The Alternate Suspect

[10] The defence has given notice of their intention to advance James Gardiner as an alternate suspect. Mr. Gardiner was interviewed by the police and testified as a defence witness at Mr. Schlatter’s preliminary inquiry. He lives a couple of blocks south of Church and Wellesley. He described himself as awkward, a bit paranoid, a different person with a large imagination. He said that he has been diagnosed as being on the autism spectrum and is schizophrenic. He also said that he had social anxiety that prevents him from interacting with people, and at times he goes days without communicating with another person.

[11] Counsel are also in possession of information that Mr. Gardiner has been the subject of a form issued under the Mental Health Act in relation to a concern about self-harm, and a suggestion, and I put it no higher than that, that he may have had specific homicidal ideations entirely unrelated to this case.

[12] Mr. Gardiner also said that he consumes MDMA and marihuana regularly. He uses MDMA maybe three times per month, and always takes it while alone. According to Mr. Gardiner, MDMA relaxes him, gives him energy and makes him “horny” for about two hours. While on MDMA he would have sex on his mind, and would pay someone to have sex with him, although this rarely happened. Usually he would search websites, and nothing would happen. He also said that he does not usually partake in intercourse; he just “looks.”

[13] Sometime during the evening of November 24, 2017, Mr. Gardiner said that he consumed a capsule of MDMA. He left his residence, according to him, at 3:00 a.m. on November 25, went to an ATM to get some money and have it ready “just in case” and then walked around to see if anyone would say hello to him or look his way. He observed Ms. Richey, Ms. Simard and Mr. Schlatter at the hot dog stand. He said that he saw a commotion, and shortly after observed Mr. Schlatter dragging Ms. Richey north on Church, while Ms. Simard was pulling her the other way. Ms. Richey appeared to be resisting.

[14] Mr. Gardiner also said that he believed that Ms. Richey took notice of him while at the hot dog stand and was interested in speaking with him. He walked west on Wellesley to Yonge, north on Yonge to Dundonald, and east on Dundonald believing that he would encounter Ms. Richey, Ms. Simard and Mr. Schlatter walking north on Church. He met up with them at 580 Church. He felt that Ms. Richey took notice of him again and was sexually interested in him. As he passed by, she called out to him and said that she wanted to speak to him. He was too shy to respond. Meanwhile Mr. Schlatter was “holding her back.” Mr. Schlatter told Ms. Richey not to go over there, and not to see “that guy.”

[15] Mr. Gardiner denied killing Ms. Richey or ever being close to her. He said he was too shy to even talk to her.

[16] No DNA that matched Mr. Gardiner was found on Ms. Ritchie’s body or clothing.

The Discreditable Conduct Evidence

[17] Crown counsel ask that I permit them to adduce evidence of certain discreditable conduct on the part of the accused. Specifically they ask to be permitted to lead evidence of keyword searches relating to violent and coercive sex extracted from the accused’s cell phone, evidence of videos and images depicting coercive or “choke out” sex extracted from the accused’s cell phone and viva voce evidence from two of the accused’s previous sexual partners concerning the accused engaging in sex involving choking.

[18] Whether or not all of this evidence is properly labelled “discreditable” is debatable, but I will analyze it under that rubric. The following is a summary of the evidence the Crown asks to be permitted to lead.

[19] Following the arrest of the accused, his cell phone was examined by a certified computer forensic technician pursuant to a warrant. The information extracted from the cell phone includes a wide variety of violent sexual images, search terms related to violent sexual acts, conversations on dating apps and text messages relating to aggressive sexual acts, links to pornographic websites featuring violent, non-consensual sexual acts and images depicting specific examples of forced sex that includes choking.

[20] The Crown seeks only to have admitted a small portion of this material. Specifically, the Crown seeks to have admitted:

1. Internet “key word searches” on Google extracted from the accused’s cell phone, including the terms: forced, gay forced anal, forced anal, teen forced anal, teen forced, blonde teen forced anal, forced sex and passed out anal;
2. A URL accessed on February 4, 2018, which was a video entitled “Teen Forced and Then Thrown Away Like Garbage”, which is a dramatization that graphically depicts a violent sexual assault involving manual neck compression in the course of intercourse causing unconsciousness, and perhaps death; and
3. Fifteen separate images of what appears to be forced sex or violent choking in the context of forced sex.

[21] In addition, the Crown seeks to introduce the viva voce evidence from two of the accused’s previous sexual partners, AB and CD, concerning the accused engaging in sex involving choking. Both witnesses testified on a voir dire.

[22] AB testified that she met the accused on a dating website in June of 2017. They later met in person through a mutual friend in a group in a bar. The group consisted of AB, her friend CD, CD’s roommate, the mutual friend and the accused. After drinking at the bar, the group went to CD’s condo, where the drinking continued, and individuals told their life stories. When it got late, everyone agreed to stay in the condo overnight.

[23] The following morning, AB and CD discussed the accused, and decided to offer sexual intercourse to him in threesome. He agreed, and they engaged in sexual activity in CD’s bed. The accused engaged in foreplay with both AB and CD, penetrative sex with CD and oral sex with both AB and CD.

[24] Throughout the summer the group had numerous social contacts. If they went drinking or to a club, the accused, AB and CD would engage in sex the following morning, usually as a threesome. On some of these occasions, AB said that the accused had choked her. Before he did, they pre-negotiated the choking. They also discussed how AB could tell Mr. Schlatter to stop. He told her that if it wasn’t working for her or she was at her limit, she should tap the side of the bed and he would let go of her. When he choked her, she became slightly woozy, but didn’t pass out. When she tapped the side of the bed or his leg, he stopped immediately. When he did it, it seemed to make him more sexually stimulated, and more ready to engage in further sexual activity.

[25] On August 20, 2017, which was AB’s birthday, Mr. Schlatter and AB engaged in sex without CD. This was the only time they engaged in sex without CD, and it was the last time they had sexual relations.

[26] On that occasion, the accused was intending to penetrate AB anally, but was having difficulty achieving an erection. To assist, AB offered him the opportunity to engage in rougher sex, such as pulling her hair or choking her. She made this offer because she knew he was interested in these activities, as well as bondage, based on previous discussions and their sharing of porn, and thought that it would arouse him. He specifically said that he was interested in choking, and had shown her staged photography, professionally done, of fetish-based sexual acts.

[27] Shortly after the offer, Mr. Schlatter achieved an erection, but he then asked that they stop and have a discussion. He told her that he didn’t feel comfortable strangling her, pulling her hair or holding her with force because he had difficulty gauging his own strength and restraining himself. He was afraid of not being able to stop himself.

[28] CD testified that in addition to sleeping with Mr. Schlatter together with AB, she slept with him alone four or five times. After the first time, the three of them had fetish-based sex, including the use of handcuffs. On one occasion when CD had sex with the accused but without AB, she asked him to choke her. She was curious to try it because she had seen him do it with AB several times.

[29] CD was on her back, and he was on top of her. He used one hand to hold himself up and put all five fingers of his other hand around her neck. The pressure was on the light side, and her breathing was only slightly obstructed if at all. It lasted for a few seconds. She did not become dizzy or lose consciousness.

[30] CD said that when he choked AB, it was much harder choking. She was next to them and sometimes even engaged in sexual acts with them when it happened. She would get red and her expression changed. She would struggle for air. He stopped when she indicated he should stop by her body language. She said that it seemed like he applied a lot of pressure based on AB’s facial expression, the redness of her face, her mouth being open, the struggling sound of her breathing and her eyes looking into the distance. The choking lasted for ten to fifteen seconds.

Analysis

Admissibility of the Discreditable Conduct Evidence

[31] Crown counsel argued that the discreditable conduct evidence is admissible in general, and that if it is not, it has been made admissible by the notice given by the accused that he will raise an alternate suspect defence and an inadequate police investigation or tunnel vision defence. I will approach these two possibilities individually.

[32] I bear in mind that a ruling on the admissibility of the discreditable conduct evidence on the basis of his notice that certain defences will be raised must be a preliminary one, for two reasons. First, I am hearing this motion as a pre-trial motion. It is always possible that the evidence may unfold in a manner that is different than counsel anticipate, which could in turn affect my ultimate decision concerning admissibility. Second, and more importantly, although the accused has given notice of an intention to raise certain defences, he is not obliged to do so. The outcome of this motion will no doubt be a consideration in his strategic decisions about the conduct of the defence. Until he actually embarks on one or both defences in question, the Crown cannot adduce the discreditable conduct evidence in response to them.

Admissibility of the Discreditable Conduct Evidence Regardless of Any Defence Raised

[33] As a general rule, evidence of the bad character of an accused, whether in the form of evidence of propensity, disposition, a character trait, or extrinsic discreditable conduct beyond what is alleged against the accused in an indictment is not admissible as circumstantial proof of the conduct charged due to the danger that, even if it is relevant, the trier of fact might either put undue weight on it (“reasoning prejudice”) and/or might convict an accused because the accused is of bad character (“moral prejudice”). The potential for prejudice is very great and will almost always outweigh its probative value (see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-40).

[34] Despite the general rule, an issue may arise at the trial of an offence to which evidence of the bad character of the accused, in whatever form, may be so highly relevant to an issue in the case and so cogent that its probative value in the search for truth outweighs any potential for misuse (Handy, at paras. 41-48). Such evidence may be relevant in narrow circumstances to the proof of an issue such as design or identity, or to rebut an innocent explanation or a defence that might otherwise be open to an accused. But the issue in every case is whether the probative value of the evidence outweighs its prejudicial effect (Handy, at paras. 49-55).

[35] A weighing of probative value against prejudicial effect can only be undertaken after first identifying the issue in question. In this case, the issue can only be identity.

[36] The probative value of the evidence is apparent. Evidence that the accused engages in sex that includes choking his sexual partner, albeit consensually, taken together with his obsessive interest in violent pornography that often includes non-consensual “choke-out” sex, tends to show a propensity on his part to engage in violent sex involving choking. The inference that he possesses such a propensity is significantly enhanced by the evidence of AB that the accused told her that he had difficulty gauging his own strength and restraining himself when he engaged in acts such as the consensual strangling of a sexual partner during sex and was afraid of not being able to stop himself.

[37] Since Ms. Richey died in circumstances involving both sex and violence in the form of choking, and since the accused obviously had some form of sexual interaction with her, since his semen was on her pants, the propensity evidence increases the likelihood that the accused was responsible for the violence as well, and that he killed Ms. Richey.

[38] On the other hand, the evidence carries with it a potential for significant prejudicial effect, particularly in the form of moral prejudice. While in 2020, many people would not view the accused as immoral because he engaged in a sexual threesome, even with persons he had just met, or participated in consensual choking in the course of his sexual activities, others would. More significantly, many people would find Mr. Schlatter’s apparent obsession with violent pornography depicting non-consensual choke-out sex as morally repugnant and might be prepared to punish him for it.

[39] In the end, I am of the view that the probative value of this evidence is outweighed by the prejudicial effect. The accused’s participation in choking sex and his interest in violent sex may be peculiar, but it is far from distinctive. It certainly cannot be said that it is so highly distinctive or unique as to constitute a signature.

[40] As noted in R. v. Morin, [1988] 2 S.C.R. 345, at p. 367,

In similar fact cases it is not sufficient to establish that the accused is a member of an abnormal group with the same propensities as the perpetrator. There must be some further distinguishing feature. Accordingly, if the crime was committed by someone with homosexual tendencies, it is not sufficient to establish that the accused is a practising homosexual or indeed has engaged in numerous homosexual acts. The tendered evidence must tend to show that there was some striking similarity between the manner in which the perpetrator committed the criminal act and such evidence. ...

[41] Although this comment was made in reference to similar fact evidence, it applies equally to disposition cases. Morin itself was not a similar fact case, nor was R. v. Glynn (1971), [1972] 1 O.R. 403 (C.A.), leave to appeal to S.C.C. refused, [1975] 1 S.C.R. xi, a decision of the Court of Appeal for Ontario that was specifically overruled by Morin. In Glynn, the court had determined that evidence of previous homosexual acts on the part of the accused were properly admitted on the issue of identity in a case where a murder had apparently been committed by a person with homosexual tendencies. In this case, as in Morin, the manner in which the crime was committed and the evidence under consideration are not sufficiently similar for the probative value of the evidence to outweigh its prejudicial effect.

[42] However, this does not bring my analysis to an end. The accused has given notice that he intends to raise an alternate suspect “defence”, and possibly an inadequate investigation or tunnel vision “defence”. If those defences are raised, as will be seen, the outcome of this motion must be different.

Admissibility of the Discreditable Conduct Evidence if an Alternate Suspect or Inadequate Investigation Defence is Raised

[43] I begin with the alternate suspect “defence.” It is beyond dispute that an accused charged with murder is entitled, by way of defence, to rely on evidence that a third party committed the murder, provided that there is sufficient connection between the third party and the crime (see R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at paras. 119-121). The Crown concedes that there is a sufficient connection between Mr. Gardiner and the murder in this case.

[44] The Crown is correct to make this concession. The “sufficient connection” flows from the video evidence that shows that Mr. Gardiner was in the vicinity of Ms. Richey, Ms. Simard and Mr. Schlatter as they progressed north on Church Street in the early hours of November 25, 2017, not far from the location of the murder, and from Mr. Gardiner’s evidence that he observed Ms. Richey, Ms. Simard and Mr. Schlatter at the hot dog stand, that he believed that Ms. Richey took notice of him and was interested in speaking with him, that he walked around the block believing that he would encounter Ms. Richey, Ms. Simard and Mr. Schlatter walking north on Church, that he met up with them at 580 Church, that he felt that Ms. Richey took notice of him again and was sexually interested in him, and that as he passed by, she called out to him and said that she wanted to speak to him.

[45] Of course, where third-party authorship is in play, it is open to the Crown to introduce evidence that rebuts the claim that the third party committed the crime. The rebuttal evidence may take various forms and may originate in different sources (Spackman, at para. 122).

[46] The seminal case on this issue is the judgment of Martin J.A. in R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.). In McMillan, the accused was charged with the murder of his infant child. The trial judge permitted the defence to call evidence tending to show that the accused’s wife committed the murder. Specifically, he permitted the defence to call a psychiatrist who testified that the accused’s wife had a psychopathic personality disturbance with brain damage, that she was immature, impulsive, had poor appreciation of the difference between right and wrong and that she was quick to anger. He also permitted the defence to call evidence of friends and relatives that she was capable of hurting the infant, that she did not take good care of it, and that she had not wanted the baby. However, the trial judge would not permit the Crown to cross-examine the psychiatrist to show that the accused was also a psychopath or to call reply evidence on that issue.

[47] The Court of Appeal allowed the appeal and ordered a new trial. Martin J.A., for the court, expressed the view that the trial judge erred in refusing to allow the Crown to cross-examine the defence psychiatrist on the issue of whether the accused was also a psychopath or to call psychiatric evidence in reply with respect to that issue. Since there were only two people with an opportunity to commit the crime, the accused, by asserting that his wife was a psychopath, by implication asserted that he was of normal mental make-up. Accordingly, he lost his protection against having his own mental make-up revealed to the jury and it was open to the Crown to show that both persons with opportunity were in fact psychopaths. Otherwise, the accused would be permitted to give the jury an entirely distorted picture. An appeal to the Supreme Court of Canada was dismissed (, [1977] 2 S.C.R. 824). The Supreme Court agreed with the reasons of Martin J.A.

[48] R. v. Parsons (1993), 15 O.R. (3d) 1 (C.A.) is to the same effect. There, the accused was convicted of an armed robbery of a bank. A man named Miller, who resembled the accused, was present at the location where the accused was arrested and where garments and guns similar to those used in the robbery were located. At his trial the accused asked the judge to permit him to tender into evidence a Collins Bay Penitentiary I.D. card, a certificate stating that at the time of his arrest Miller had been released on mandatory supervision from Collins Bay as evidence that Miller had a criminal record, and to call a police officer to testify that Miller was charged with three other robberies, for the purpose of demonstrating a propensity to commit robberies. Crown counsel argued that if this evidence was led, the Crown wished to call in reply evidence that the appellant was also found with a Collins Bay Penitentiary I.D. card and a certificate of release on mandatory supervision, also had a criminal record and, at the time of his bank robbery trial, was facing at least one additional robbery charge. Counsel for the accused made it clear that he would not lead the evidence with respect to Miller if it meant that the appellant’s propensity to commit robberies would become an issue.

[49] The trial judge refused to permit the evidence about Miller to be adduced because of the position taken by the defence. He ruled that to admit this type of evidence with respect to Miller and yet deny the Crown the right to admit similar evidence with respect to the appellant would be misleading to the jury.

[50] The Court of Appeal concluded that the trial judge’s ruling was consistent with McMillan and dismissed the accused’s appeal. Finlayson J.A. stated, for the court, at pp. 12-13:

In my opinion, Mercier J. was correct in ruling that if the evidence relating to Miller’s propensity to commit robberies was introduced into evidence, fairness dictated that the very similar evidence that the Crown possessed relating to the appellant could also be introduced. I would go further and suggest that if the appellant chose to throw sticks at Miller, the Crown should be able to counter this evidence with any similar evidence relating to the propensity to commit robbery, not only of the appellant, but of the other suspects arrested with the appellant, Lesperance and Crowe. To rule otherwise would leave the jury with the highly misleading impression that Miller alone of those arrested had a propensity to commit robberies, whereas in truth he was part of a gang that committed robberies and the appellant was part of that gang. [Emphasis added.]

[51] In R. v. Mullins-Johnson (1996), 31 O.R. (3d) 660 (C.A.), the accused was charged with the first degree murder of his four-year-old niece. The defence blamed the child’s father for the killing. It was alleged that he had the opportunity to commit the offence and had a propensity for violence. In response, the Crown cross-examined the accused with respect to prior psychiatric problems and his anger management counselling. The majority in the Court of Appeal concluded that in light of the defence strategy, the Crown was entitled to adduce evidence respecting the accused’s make-up. I note that the evidence adduced by the Crown was of quite a different character than the evidence adduced by the defence. An appeal to the Supreme Court of Canada was dismissed (, [1998] 1 S.C.R. 977).

[52] In R. v. Dhillon (2002), 166 C.C.C. (3d) 262 (Ont. C.A.), albeit in obiter on this point, Laskin and Goudge JJ.A. stated, at para. 44:

Ordinarily, evidence of the kind led by the Crown — bad character evidence of the accused’s antecedents — is inadmissible in a criminal trial. But this general principle admits of exceptions when the defence seeks to point the finger at other suspects. For example, if an accused leads evidence that a third person had the disposition to commit the crime alleged, the Crown may be entitled to lead evidence to show that the accused also had the disposition to commit the crime. To preclude the Crown from doing so would keep from the jury relevant evidence and would thus give them a distorted picture. ...

[53] Based on these cases and others, I conclude that where the defence leads evidence of a third party’s bad character to support an inference that the third party is more likely to have committed the offence charged than is the accused, the Crown is entitled to adduce evidence of the bad character of the accused that tends to support an inference that he has a specific propensity to commit the offence in order to prevent the jury from having a distorted picture. I see no logical reason why the evidence supporting the bad character of the accused has to be of the same nature as the evidence supporting the bad character of the third party, and the cases I have cited, and other cases as well, do not support this proposition.

[54] In this case, the accused proposes leading evidence that a third party who was in the general area of the crime and showed a sexual interest in the deceased: had mental health issues including autism, schizophrenia and social anxiety, and is sexually aroused and seeks out sexual contact when using MDMA, which he had used the evening of the homicide. In my view, in response, to avoid giving the jury a distorted picture, and recalling that the deceased was choked to death and had the accused’s semen on her pants, and had been with him late at night in a remote staircase outside an unoccupied building where she died, the Crown can lead evidence that: the accused engages in consensual choking sex, has an obsession with or at least a strong interest in pornography depicting violent non-consensual choke-out sex and told a sexual partner that he has difficulty gauging his own strength and restraining himself when he engaged in acts such as the consensual strangling of a sexual partner during sex and was afraid of not being able to stop himself.

[55] I turn to the proposed “defence” of inadequate investigation and tunnel vision. In Spackman, Watt J.A. had this to say at para. 123:

The “defence” of inadequate investigation may be related to but can be discrete from a claim of third party authorship. The decision by an accused to attack the integrity of the police investigation of the offence charged is a permitted, but risky strategy. The risk involved is that, by invoking the strategy, the accused will make relevant, material, and admissible, evidence that would never have seen the light of day if tendered by the Crown as part of its case in-chief: R. v. Dhillon (2002), 166 C.C.C. (3d) 262 (Ont. C.A.), at para. 51; and R. v. Mallory, 2007 ONCA 46, (2007), 217 C.C.C. (3d) 266, at para. 87. Included among the evidence that may be made admissible is investigative hearsay, albeit subject to instructions about its limited use: Dhillon, at para. 51; Mallory, at para. 92; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 184; and R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 33. To deny the Crown the right to adduce evidence to rebut a claim of inadequate investigation, as with the “defence” of third party authorship, would be to leave an entirely distorted and incomplete picture with the jury.

[56] I am of the view that the bad character evidence of the accused will be made relevant, material and admissible if the defence chooses to attack the integrity of the police investigation, or argue that the police exhibited tunnel vision in focusing on the accused as the murderer. Admissible or not, this evidence is highly significant in explaining and informing the investigative decisions made by the police in this case.

[57] Having said all of this, I recognize that there are some aspects of evidence of the bad character of the accused that are so prejudicial that they will have to be excised, or presented in an altered manner, should the accused open the door to their admission. The most obvious example is the video entitled “Teen Forced and Then Thrown Away Like Garbage” that I have referred to earlier. My brief discussion of it does not begin to do justice to its deeply disturbing nature. The Crown freely acknowledges that it cannot be played for the jury.

Disposition

[58] I conclude that evidence of the bad character of the accused, whether in the form of evidence of propensity, disposition, a character trait, or extrinsic discreditable conduct beyond what is alleged against the accused in the indictment will not be admissible at the instance of the Crown unless and until the accused adduces evidence of the bad character of James Gardiner, the alternate suspect, raises a defence of inadequate or tunnel vision investigation, or otherwise puts the accused’s character in issue. For greater certainty, evidence of the bad character of Mr. Gardiner includes: evidence about his mental health or about his drug consumption insofar as it relates to his sexual conduct.

M. DAMBROT J.

RELEASED: February 3, 2020