Her Majesty The Queen – and – Kalen Schlatter
COURT FILE NO.: CR-18-70000715-0000 DATE: 20200221 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: January 16-20, 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By virtue of s. 648(1) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.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 his application for an order: (1) declaring that his right to silence guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms was infringed when he made a statement to Toronto Police Services (“TPS”) undercover police officers who were placed in cells adjacent to his in a police station upon his arrest; and (2) excluding his statement from evidence at this trial pursuant to s. 24(2) of the Charter.
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. 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, walking north. They were now all walking together.
[4] Ms. Richey, Ms. Simard and Mr. Schlatter continued north toward Dundonald Street. They stopped and talked to a woman outside the residence at 50 Dundonald Street. At 4:14 a.m., Ms. Simard went home, leaving Ms. Richey alone with Mr. Schlatter. The accused and the deceased walked back to Church Street and continued north from 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 lead to a side door and an external stairway leading down to a locked basement access into the premises. At 5:00 a.m., Mr. Schlatter walked east along the walkway, and back out to Church Street. This time, he was alone. Ms. Richey was never seen walking away from the building.
[5] Ms. Richey’s 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. The Coroner initially characterized the death as accidental.
The Investigation Leading Up to the Statement in the Cells
[6] The Coroner initially characterized the cause of death as misadventure. An autopsy was conducted on December 1, 2017. The cause of Ms. Ritchie’s death was determined to be “neck compression”, or strangulation. In addition, her arms, the back of her right hand and the back of her left wrist were bruised. This bruising 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.
[7] Once it was determined that Ms. Richey’s death was a homicide, the case was assigned to the homicide squad. Det. Sgt. Gibson was assigned to oversee the investigation. He worked in conjunction with Det. Lioumanis, who was the case manager. The homicide investigators immediately began gathering video surveillance in the area in which Ms. Richey’s body was found, including video surveillance at Crews and Tangos, at the TD Bank, at the hot dog stand, further north on Church and video surveillance recorded by a security camera at 582 Church Street that showed a man leading Ms. Richey by the hand from the sidewalk on the west side of Church Street along a pathway toward an external staircase at the front of the premises at approximately 4:15 a.m., and that same man walking away from the external staircase back toward Church Street alone at 5:00 a.m. At the time, the investigators had no idea who that man was.
[8] On December 10, 2017, at 12:46 p.m., the police released still images of the man seen with Ms. Richey in the video recording at a press conference in an effort to identify him. At 9:00 p.m. that same day the accused called 11 Division and identified himself as the man in the still images, and provided his name, address and date of birth. The police attended at his residence and transported him to 51 Division for investigation. His parents and his counsel attended at 51 Division with him. While he was at the station, Det. Lioumanis met with the accused and his counsel and invited the accused to talk to him. He declined to do so, and in fact, declined to identify himself. He was permitted to leave.
[9] While at the police station, Mr. Schlatter discarded a water bottle that his parents had provided to him into a recycling bin. The police recovered the bottle and provided it to the Centre of Forensic Sciences (“CFS”) where a DNA sample was extracted. Swabs were also taken from the body and clothing of Ms. Richey during the autopsy, and these were also forwarded to CFS for comparison with the DNA sample taken from the accused’s water bottle. The police also obtained a search warrant and executed it at the home of the accused.
[10] On January 9, 2018, homicide investigators met with TPS Covert Operations officers to discuss the viability of utilizing undercover officers as part of the investigation. They had not yet obtained any DNA results in relation to Mr. Schlatter. They did have information that the deceased had the DNA of her boyfriend in her vagina. D.C. Hung of the homicide squad was tasked with writing the material necessary to obtain an authorization to intercept private communications by means of an “electro-magnetic, acoustic, mechanical or other device” with the consent of one of the parties pursuant to s. 184.2 of the Criminal Code.
[11] On February 2, 2018, at about 2:00 p.m., a CFS forensic biologist advised the homicide investigators that it had been determined that DNA from Mr. Schlatter’s semen was identified on the outside of the upper left thigh area of Ms. Richey’s pants. In addition, 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.
[12] Det. Sgt. Gibson testified that from December 10, 2017, to February 3, 2018, the police had reason to believe that Mr. Schlatter might be responsible for this homicide, but they did not believe that they had sufficient grounds to arrest him. They had concerns about public safety during that period of time and kept Mr. Schlatter under surveillance.
[13] On February 3, 2018, the homicide investigators reviewed the evidence they had gathered with respect to the death of Ms. Richey, which now included the DNA evidence. They concluded that they now had sufficient grounds to arrest and charge Mr. Schlatter with murder and consulted their Inspector. In the course of this consultation, they discussed their concerns about public safety. The accused had already been “misplaced” during the course of surveillance on him, and the officers were concerned about the potential for another homicide. The investigators also sought the advice of a Crown Attorney. At about 1:35 p.m., the investigators gave orders to arrest the accused as soon as he was found, potentially that day, because of their public safety concerns.
[14] By this point in time, D.C. Hung had prepared a 44-page information and affidavit in support of an authorization pursuant to s. 184.2 in draft and a draft order. The investigative plan outlined in her information and affidavit included the placing of undercover officers in police cells in close proximity to the cell that the accused would be placed in after his arrest in order to respond to and record any conversation the accused might choose to have with them. It also included the possibility of continued interception when the accused was transported to court in a police transport wagon. However, the material in support of an authorization had not been finalized, and an authorization had not yet been obtained. The homicide investigators decided to change the plan and do only a one-time cell insertion. D.C. Hung was directed to continue working on material in support of a judicial authorization for a one-time insertion.
[15] By 7:30 p.m., Det. Sgt. Gibson realized that, in light of the imminence of the arrest and the narrow window for the operation in view of the limited time period that the accused would be in the police cells, an application for an authorization could not be completed in time. As a result, he decided that the cell insertion would proceed in the 13 Division cells without obtaining an authorization, and without any audio recording device. [1] While the window for a cell insertion could have been extended by executing it in a remand centre after the accused was taken to court, the police did not consider it to be an option. They were quite properly concerned about officer safety. A police station is an environment that they could control. A remand centre is not. A cell insertion in a remand centre was simply not a safe option.
[16] The police did not know the whereabouts of Mr. Schlatter on February 3, 2018 and were unable to locate him that day. On February 4, 2018, surveillance officers conveyed information to the homicide officers that the accused had left his family home with his parents and was attending a movie theatre with them. The police decided that the safest option was to arrest him when the family returned to their residence. The accused was in fact arrested at 11:00 p.m. when he returned home. He was brought to 13 Division just before midnight.
[17] At 1:34 a.m. on February 5, 2018, Det. Lioumanis and D.C. Hung commenced interviewing the accused. In the course of the interview, they conveyed to him the reason for his arrest, and a little about the investigation. In particular, they disclosed to him that they knew that he, the deceased and her friend had been at Crews and Tangos in the evening of November 25, 2017, and that he followed the deceased and her friend up Church Street after they left the club. They showed him photographs of him at a hot dog stand with the deceased and her friend, of the same threesome walking north on Church to Dundonald where they stopped to talk to someone, of him and the deceased walking along an alleyway toward a staircase and of him walking out of the alleyway 45 minutes later. They told him that the deceased’s body was found in the staircase by her mother four days later, that his DNA extracted from sperm was located on her pants and that the cause of her death was neck compression. The accused chose to exercise his right to silence but did tell the officers that he made stone carvings as a hobby and sometimes gave them to friends as gifts. The interview ended at 2:57 a.m.
The Statement in the Cells
[18] The Crown brought an application pursuant to s. 486.31 of the Criminal Code for an order placing certain restrictions on the disclosure of information tending to identify the undercover officers involved in this investigation in order to avoid compromising their ability to continue to perform their undercover work and to avoid any risk of harm to them. Counsel for the accused consented to this application. One term of the order I made was that the officers would be referred to in this trial as UC1 and UC2. I will refer to them in that manner in these reasons.
[19] On Saturday, February 3, 2018, UC1 and UC2 were ordered to report to 13 Division at 5:00 p.m. for an undercover deployment. They were kept isolated from other officers and received no information about their assignment until they were briefed by their handlers at 7:30 p.m. The homicide detectives were not present. The undercover officers were told that the objective of their undercover operation was to interact with a target who would be under arrest and placed in the cells at 13 Division in order to get any information he gave them about a homicide investigation, whether inculpatory or exculpatory. They were told the name of the target, the name of the deceased, the date and location of the finding of the deceased’s body and the fact that the death of the victim had been determined to be a homicide. Neither officer had had any prior contact with Mr. Schlatter. They did not know his age or what he looked like. They were told nothing more about the investigation except that the target enjoyed playing board games. They were also given a photograph of a shelving unit in the accused’s bedroom that had games on it. The photograph had been taken in the course of the execution of a search warrant.
[20] Finally, they were given copies of the leading Supreme Court of Canada cases that set the legal parameters or guidelines for an investigation of this sort and told to review them. The officers were familiar with this case law from the undercover course they had recently taken but reviewed the cases again. They were then required to provide an explanation of the case law to the handlers. UC1 explained that he understood that they were permitted to be more than listening posts but were not permitted to interrogate the accused. They could use subterfuge but could not ask specific questions of him.
[21] Following the briefing, UC1 and UC2 and their handlers developed their back story for the operation. They would be placed in the cells with the accused and pose as two individuals who were stopped in a vehicle together and arrested for possession of stolen property.
[22] At midnight, once it became clear that the accused would not be arrested that night, the two undercover officers were sent home and placed on standby. They were not called back until the following evening. In the interim, UC1 took the opportunity to do a little internet research about games that were popular at the time, including Magic and Cards Against Humanity. His research was guided by the games he saw in the photograph of the accused’s bedroom.
[23] On Sunday, February 4, 2018, sometime prior to 11:00 p.m., the two undercover officers were ordered to return to 13 Division. The essence of what they had been told the day before was told to them again. Once again, they met no one except their handlers.
[24] Cells 1, 2 and 3 at 13 Division are in a line along a corridor with access to the Booking Office through a door on the opposite side of the corridor from the cells. There are bars on the front of each cell, but they are separated from each other by solid walls. A prisoner can see other prisoners when they are in the corridor, but not when they are in another cell. On Monday, February 5, 2018, at 3:03 a.m., UC1 was placed in 13 Division cell 1. At 3:19 a.m., Mr. Schlatter was placed in cell 2. At 3:21 a.m., UC2 was placed in cell 3. UC1 and UC2 were ultimately removed from the cells at 8:35 a.m. Although all three men conversed with each other while they were in the cells, UC1 did far more of the talking than did UC2. This was not by design; it just happened naturally. UC2 said that UC1 developed an excellent rapport with Mr. Schlatter, and he saw no reason to jump in. The officers ultimately made notes of the conversation.
[25] For the purpose of later making notes, each of UC1 and UC2 were instructed to focus on what he himself said to the accused, and what the accused said to either of them, but not particularly what the other undercover officer said. As a result, since UC1 did much more of the speaking to the accused than did UC2, I will focus, primarily, on UC1’s account of the communication and use UC2’s account to supplement the narrative.
[26] When Mr. Schlatter was brought into the corridor to be placed in cell 2, he nodded to UC1. UC1 nodded back. After Mr. Schlatter was placed in the cell, and the booking officer who brought him in had departed and closed the door, Mr. Schlatter initiated a conversation with UC1 by asking him if he had watched the game, meaning the Super Bowl. UC1 said that he had been unable to watch the end of the game because he had been arrested and explained the circumstances of his fictitious arrest to the accused. Mr. Schlatter gave him an account of the end of the game. UC1 did not ask questions of the accused.
[27] They continued discussing the Super Bowl for some time. The conversation flowed freely. Mr. Schlatter explained that he had seen the game with his family in a theatre and volunteered that there were hot girls performing as cheerleaders in the theatre. At this point, UC2 entered cell 3, and UC1 and UC2 began conversing about their predicament. The accused was initially not a party to this conversation. However, when the conversation turned to the Super Bowl, Mr. Schlatter jumped in and took control. He began discussing seeing the game in a theatre and the “hot girls” again. In the context of inquiring into what Mr. Schlatter considered to be “hot”, UC1 asked him if he preferred blondes or brunettes. Soon after the accused replied, the conversation stopped. The accused said he was tired and was going to get some sleep.
[28] At that point, UC1 and UC2 started talking to each other about a gaming place they had planned to go to, to learn the new game of Magic. Mr. Schlatter immediately rejoined the conversation and talked non-stop about Magic. He boasted about his proficiency in the game and began to school UC1 in his strategies and techniques. He also spoke about other games, and the places he went to play them. Then, once again, his conversation turned to hot girls.
[29] He explained that hot girls went to the places where he played games. He boasted that he was only 21 but had slept with over 40 girls. He then explained why he was able to sleep with so many girls and expounded on his secrets. He also went to gay bars with gay friends because hot girls liked going to these bars. He also was a nude model and was able to sleep with the art students, although it was against the rules. He hung out at art galleries for the same reason. He explained that he did stone carving and gave his sculptures to girls who would then sleep with him. He then turned the subject to contacting girls through websites and said that he got bored using Tinder because it is too easy to sleep with the girls that he had contacted. He preferred a challenge. He then spoke about his approach to meeting girls at bars.
[30] At this point, UC1 asked why a great guy like Mr. Schlatter was in jail. UC1 testified that he considered this a natural thing to say and was not trying to steer the conversation. The accused replied that he did something big, twice as bad as what UC1 and UC2 had done. UC2 said that Mr. Schlatter said that he was “arrested for something big.” Mr. Schlatter then asked UC1 if he knew Tess Richey. UC1 said that he did not. The accused told him that the police say he killed her. He said that his lawyer told him not to say anything to anyone and acknowledged that UC1 was a stranger and that it was contrary to his lawyer’s instructions to talk to him, but, he said, they were like brothers and he liked him.
[31] The accused then proceeded to tell UC1 that he had been to a club called Crews and Tangos with friends in the gay village area and that he met Tess Richey in the club. They danced, kissed and “grinded” together. She was there with a friend and the three of them later walked up Church Street together. The friend left, and he wanted privacy so that they could hook up. He took her to a house that was under preservation, went up an alley and down a staircase at the end with her where they made out and grinded. He kissed her, felt her breasts and ejaculated in his pants, leaving a wet stain on his pants that rubbed off on hers. He told UC1 and UC2 that that was where the police found his DNA.
[32] He said that he wanted to have sex with Ms. Richey, but she refused because she was having her period. When he tried to “finger” her, she told him to stop. The autopsy conducted on Ms. Richey’s body confirms that she was in fact menstruating. Mr. Schlatter said that he was upset, because he wanted to have sex. He said that she was falling over and he had to hold her up against the wall. He said that when they stopped kissing, he wanted to leave but Ms. Richey wanted to stay at the bottom of the stairs. He asked her if she wanted him to stay, but she said no. The accused went on to say that he then left Ms. Richey alone in the staircase and suggested that she might have taken her own life.
[33] There is other evidence that confirms the truth of much of this part of his account, although obviously not his assertion that he left the deceased alive, and that, according to the evidence, was not known to the undercover officers, including evidence that: the accused and the deceased were both in Crews and Tangos; that they left Crews and Tangos and walked up Church Street with the deceased’s girlfriend; that the friend left; that the deceased and the accused walked up an alley to an unoccupied house; that the accused came into contact with the deceased’s breasts or at least her bra; that the accused ejaculated; that his semen was on the deceased’s pants; and that the deceased was menstruating.
[34] There is evidence before me that much of the accused’s account is consistent with the evidence acquired by the police. By way of example, it was determined by the pathologist who conducted the autopsy that Ms. Richey was menstruating at the time of her death. Importantly, based on the evidence I have heard, and which I accept, the undercover officers knew virtually none of the information recounted to them by the accused either at the time they were speaking to him in the cells or when they wrote their notes.
[35] The accused also accurately conveyed details of what was said by Det. Lioumanis to him and by him to Det. Lioumanis in the course of an interview prior to his being placed in the cells, including: that the police had footage of him coming into the alley with Ms. Richey and leaving on his own; that the police “screwed up” the search but Ms. Richey’s mother found her body; that Ms. Richey died from neck compression, which meant that she was strangled; that he exercised his right to remain silent and told the detective nothing; that the detective showed him pictures of the deceased, trying to get a reaction from him, and although it did not faze him, he feigned a reaction; that the detective believed that he had taken money from Ms. Richey’s purse; that he will sit down with his lawyer and come up with a story; and that his lawyer is a woman.
[36] A transcript of the interview of Mr. Schlatter conducted by Det. Lioumanis has been led in evidence. It confirms much of Mr. Schlatter’s account of his interaction with the detective. And once again, the only evidence before me, which I accept, is that the undercover officers knew none of the content of that interview either at the time they were speaking to the accused in the cells or when they wrote their notes.
[37] At 6:40 a.m., UC1 was extracted from the cells on a pretext, asked if he was okay, and given an opportunity to write rough notes of his discussion with the accused. He was returned to the cells at 6:55 a.m. When he returned, Mr. Schlatter mentioned to UC1 that their conversation was private and asked him not to repeat it. He also asked UC1 to speak more quietly, although UC1 had not raised his voice. The accused had seen the booking officer enter and leave the cell area and was obviously concerned about being overheard. Soon after, he stopped talking. UC2 was removed from the cells at 7:05 a.m., made his rough notes and was returned to his cell at 7:53 a.m.
[38] UC1 and UC2 were removed from the cells a second and final time at 8:35 a.m. They were given the opportunity to add to their rough notes at that time. UC1 did so. A debriefing followed, and then UC1 and UC2 separately prepared their formal notes in their memo books. They each made use of their rough notes to assist them, but also added details that they were still able to remember. UC1 and UC2 never collaborated on their notes, discussed their notes together or ever saw each other’s notes. Their notes are, for the most part, consistent with each other, but UC2’s notes are briefer than the notes of UC1. Both officers left 13 Division at around 9:30 a.m.
Analysis
[39] Section 7 of the Canadian Charter of Rights and Freedoms guarantees to everyone the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The principles of fundamental justice are found in the basic tenets of our legal system. Amongst these is a detained person’s right to silence.
[40] The right to silence is rooted in two common law concepts: first, the confessions rule, which makes a confession improperly obtained by the authorities from a detained person inadmissible in evidence; and second, the privilege against self-incrimination, which precludes a person from being required to testify against himself at trial. In essence, these two concepts are united by the idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent. As a result, if a detained suspect chooses not to make a statement, the state is not entitled to use its superior power to override the suspect’s will and override his choice. Of particular importance here, the state cannot trick the suspect into making a statement after the suspect has conferred with counsel and declined to make a statement (see R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-181).
[41] I note, however, that this reference to not tricking a suspect into making a statement is not a concern about subterfuge per se. Rather, the concern is with subterfuge that, in actively eliciting information, violates the accused’s right to silence by depriving her of her choice whether to speak to the police (see R. v. Liew, [1999] 3 S.C.R. 227, at para. 41). As a result, the Supreme Court of Canada has stated:
Hebert expressly allows for situations where, though speaking to an undercover officer, the detainee’s speech is voluntary, in the sense that she must be taken to have freely accepted the risk of her own actions.
[42] The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. Here, the essential question is: did the police conduct effectively and unfairly deprive the suspect of the right to choose whether to speak to the authorities or not (Hebert, at p. 182)?
[43] An undercover police officer may be placed in the police cells with a detained suspect and make observations. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police. But the undercover officer may not actively elicit information in violation of the suspect’s choice to remain silent (Hebert, at p. 185).
[44] The meaning of “elicit” in this context was developed in R. v. Broyles, [1991] 3 S.C.R. 595, at pp. 611-12. Iacobucci J., for the court, explained that a precise definition could not be given, but rather one should look at two sets of factors in order to answer the question whether, considering all of the circumstances of the exchange, there is a causal link between the conduct of the state agent and the making of the statement by the accused. The list of factors is not exhaustive, and the answer to any one question is not determinative. He described the two sets of factors as follows:
The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?
[45] With respect to the first set of factors relating to the nature of the conversation, Iacobucci J. also asked the question, at p. 613, whether the undercover agent allowed the conversation to flow naturally or directed the conversation to those areas where he knew the police needed information.
[46] Iacobucci J. went on to say that in considering whether the statement in question was elicited, instructions given to the state agent for the conduct of the conversation may be important. Evidence that the agent was instructed not to initiate the conversation nor to ask leading questions will tend to refute the allegation that the resulting statement was obtained in violation of s. 7.
[47] In Liew, the Supreme Court of Canada added to our understanding of the meaning of the term “elicit”. At para. 45, the court stated:
In following the authority of Hebert and Broyles, we find nothing in the facts of this appeal to support the proposition that the exchange between the appellant and the undercover officer was the functional equivalent of an interrogation. It is of no consequence that the police officer was engaged in a subterfuge, permitted himself to be misidentified, or lied, so long as the responses by the appellant were not actively elicited or the result of interrogation. In a more perfect world, police officers may not have to resort to subterfuge, but equally, in that more perfect world, there would be no crime. For the moment, in this space and time, the police can, within the limits imposed by law, engage in limited acts of subterfuge. In our opinion, that is the case in this appeal.
[48] Of note, in Liew, at paras. 47-48, Major J., for the majority of the court, held that the question “What happened?”, meaning “How did we get arrested?”, asked by an undercover police officer posing as a confederate in the crime charged who was “arrested” with the accused, could not be seen as a form of elicitation where it picked up the flow and content of the conversation. Of note, he said, “It is difficult to imagine a less intrusive response on the part of the officer”.
[49] Major J. further stated, at para. 58:
In affirming a detainee’s right to silence, Hebert and Broyles preserve and define an area of police investigation where undercover operations, including cell block interviews, are perfectly legitimate. The undercover officer’s interventions in the exchange at issue in this appeal are so innocuous that to conclude that the appellant’s statements are inadmissible is effectively to abolish, contrary to Hebert and Broyles, that legitimate area of police investigation. It would be tantamount to adopting either a “listening post” standard or an “absolute right to silence” standard, both of which were unambiguously rejected by this Court in those cases.
[50] Before applying these principles to the facts of this case, I will address an additional issue raised by counsel for the accused. To quote from their factum, relying on the decision of the Court of Appeal for Ontario in R. v. Moore-McFarlane (2001), 56 O.R. (3d) 737, 160 C.C.C. (3d) 493 (C.A.), they say:
The Crown bears the onus of establishing a sufficient record of the interaction between the Applicant and the police. In this case, there is an insufficient record upon which to assess the accuracy of any statements purportedly made by the Applicant to undercover officers.
[51] Without a doubt, I would be better able to assess the conduct of the undercover officers if an audio recording had been made of their interaction with the accused. But the accused’s reliance on Moore-McFarlane is misplaced. Importantly, Moore-McFarlane concerns an inquiry into the voluntariness of a statement made by the accused, an issue upon which the Crown bears the burden of proof on a beyond a reasonable doubt standard. The decision in Moore-McFarlane is informed by that context.
[52] For example, at para. 65, Charron J.A., as she then was, stated for the court:
However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.
[53] In addition, she ended para. 67 with these words:
Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.
[54] Here, the onus is on the accused to establish, on a balance of probabilities, that his right to silence was violated. I cannot jump from the absence of an audio recording to a finding, on a balance of probabilities, that it was. I must do my best from the record before me to determine whether or not the accused has met his onus.
[55] Moreover, to the extent that Moore-McFarlane stands for a principle that an unrecorded statement is suspect, it bears remembering the circumstances when that will be so. I return to the words of para. 65, quoted above. Charron J.A. said:
Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect.
[56] She was not speaking of a situation where, as here, the communications between the police officers and the accused would be recorded surreptitiously. There is no legal impediment to a police officer who is interviewing a detainee to openly record a post-arrest interview. The detainee will know he or she is being recorded and will have the choice whether to speak or not. Here, we are concerned with the possibility of a surreptitious one-party consent interception of a private communication. It would violate s. 8 of the Charter for the police to do so without judicial authorization (see R. v. Duarte, [1990] 1 S.C.R. 30). The police did not have judicial authorization, and as a result they were prohibited from surreptitiously recording the interaction in question.
[57] What is more, this is very far from the circumstances that concerned the court in Moore-McFarlane. This is not a case where the police gave no thought to recording the communications in issue. On the contrary, they were diligently preparing to seek judicial authorization. As I have noted, D.C. Hung had prepared a 44-page information and affidavit in support of an authorization pursuant to s. 184.2 in draft and a draft order. They proceeded to arrest the accused before an authorization could be obtained when they acquired reasonable grounds to do so, out of concerns for public safety. In my view, this was an entirely appropriate decision. I have had occasion in the past to characterize a decision by the police not to arrest a person they considered dangerous where they had the grounds to do so for investigative purposes as “a dangerous balancing act” (see R. v. Riley (2008), 234 C.C.C. (3d) 181 (Ont. S.C.)).
[58] In the end, I do approach the accounts of UC1 and UC2 of the words spoken by them and the accused in the cells with some caution. There is no doubt that more was said than what they recorded in their notes. No doubt UC1 in particular was overconfident that his recollection of the odd word or phrase was precisely correct. No doubt the exact words spoken differed from some of the words recorded by UC1 and UC2, and that at times the exact words might have shed a slightly different light on the texture of the conversation. And clearly there are some small differences between the accounts of UC1 and UC2. But in the end, I find that they were honest witnesses who have reliably captured the essence of the interaction, have recalled all of the important details of what was said, and have accurately described the way the conversation unfolded, who was leading it, how the different topics came to be discussed and most importantly, their roles in the unfolding of the narrative. The significant confirmation of their account of what was said to them by the accused from the evidence gathered in the investigation and from the recording of the interview of the accused conducted by Det. Lioumanis, confirms me in my conclusions about the credibility and reliability of the evidence of UC1 and UC2.
[59] I turn then to the core question: was this statement elicited by the undercover officers? Without a doubt, the undercover officers stimulated the accused’s discussion about board and card games, not by addressing him about the topic, but by discussing games with each other, knowing that he was a games aficionado. No doubt, they encouraged him to keep talking about his success with girls by feigning being impressed by him and perhaps by asking him a few follow-up questions. But I consider none of this to be the least bit offensive. It does not remotely resemble the functional equivalent of an interrogation. Indeed, a real interrogation was next to impossible, given how little information the police had.
[60] While it is true that, unlike the discussion of games, the discussion about the accused’s sexual success has a relationship to the alleged offence, it is inoffensive. Even though UC1 and UC2 undoubtedly encouraged the accused to keep boasting about his success with women by feigning to be impressed, this was a naturally flowing conversation, and very far from an interrogation. Since the officers had no idea that there was a sexual component to the alleged crime, they clearly could not have been steering the conversation in a sexual direction in order to elicit a statement about it, nor was that the effect of what they said.
[61] It is also true that the question that preceded that accused’s account of his connection to the alleged offence was the question why a great guy like Mr. Schlatter was in police custody. No doubt this question nudged the accused in the “right” direction. But again, it was an innocuous question that flowed naturally from what preceded it. Importantly, UC1 did not ask the accused what he had done, but only why he was in police custody. The natural answer would have been to say that the police thought he had murdered someone, not to give an account of his involvement. Importantly, not only did the undercover officers know nothing about the information the accused recounted, but they asked no follow-up questions. They did not encourage the accused to keep on telling them about his connection to Ms. Richey or his account of what happened.
Conclusion
[62] Having regard to all the circumstances, I conclude that the accused has not met the onus of establishing that the police elicited his statement, or that they violated his right to silence protected by s. 7 of the Charter. Accordingly, I need not consider s. 24(2), but if I did, having considered the factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I would still not exclude the statement. If there was a violation of s. 7, it was just barely over the line, and was done in good faith, in a carefully crafted operation designed to remain well within the dictates of the jurisprudence.
M. DAMBROT J. RELEASED: February 21, 2020
COURT FILE NO.: CR-18-70000715-0000 DATE: 20200221 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N : HER MAJESTY THE QUEEN – and – KALEN SCHLATTER REASONS FOR DECISION DAMBROT J. RELEASED: February 21, 2020
[1] An agent of the state may not surreptitiously record a private communication without judicial authorization even if the person intended by the originator to receive it has consented to the interception (see R. v. Duarte, [1990] 1 S.C.R. 30). Such an authorization is available pursuant to s. 184.2 of the Criminal Code. However, no authorization is required when such communication is monitored, but not recorded, for the purpose of preventing bodily harm to the person who consented, by virtue of s. 184.1 of the Criminal Code.