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By virtue of s. 648(1) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury hearing this trial retires to consider its verdict.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] 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 included evidence of a statement made by the accused to two undercover police officers (“UC1” and “UC2”) in police cells after his arrest. The Crown opened to the jury and began calling witnesses on January 30, 2020. In the course of the Crown’s case, counsel for the accused brought an application in writing for a mistrial and certain other or alternative relief. The application was returnable on February 10, 2020. By that date, the testimony of UC1 had been completed. These are my reasons for dismissing the application for a mistrial, and my disposition of the other aspects of the application.
BACKGROUND
[2] When Mr. Schlatter was arrested, he was taken to 13 Division of the Toronto Police Service (“TPS”) where he was booked and placed in one of the cells in the station. Two undercover police officers were placed in the cells adjacent to his. Over the course of several hours, the accused spoke at length to the police officers. Crown counsel sought to adduce the things said by Mr. Schlatter in evidence at this trial. The accused made an 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 statements to the TPS undercover police officers; and (2) excluding his statements from evidence at this trial pursuant to s. 24(2) of the Charter.
[3] I dismissed that application with reasons to follow. I released those reasons on February 21, 2020.
[4] In the accused’s present application, he seeks:
• An order for certain additional disclosure
• An order reopening the Crown’s application asserting investigative privilege
• An order permitting the accused to bring an application to exclude evidence pursuant to s. 8 and s. 24(2) of the Charter
• An order permitting the accused to reopen the s. 7 application
• A declaration of a mistrial to permit the accused an opportunity to receive and review disclosure, to reopen and relitigate the s. 7 application and to bring a s. 8 application.
[5] Central to all these prayers for relief is a dispute between Crown and defence about the audio and video monitoring of the accused and the undercover officers in the 13 Division cells, and the disclosure of that monitoring. Although the video monitoring of the accused while in the police cells at 13 Division was disclosed to the defence long before trial, Crown counsel did not know, and as a result did not tell counsel for the accused until after this trial had commenced and evidence had been led before the jury that there was also audio monitoring of the discussions involving the accused and the two undercover officers in the cells. In light of the late disclosure of the fact that the communication was audio monitored, I permitted the defence to call evidence in support of this application to supplement the evidentiary foundation for the motion that was already before me.
[6] With this background in mind, I propose to consider the five heads of relief in the order that I have listed them. I will consider the issues concerning disclosure and privilege together.
DISCLOSURE AND PRIVILEGE
[7] In its notice of motion, counsel for the accused listed thirteen items they wanted the Crown to disclose. They added a fourteenth item at the opening of their oral argument. All of these items related to the recording or monitoring of the communications involving the accused and the undercover officers in the cells.
[8] The Crown took the position that six of these items didn’t exist, five had been disclosed, one was irrelevant and two were privileged. By the time that counsel for the accused made her closing argument on the application, she sought only two of these items: unredacted copies of the cell insertion videos of the undercover officers, and the operational plan developed by Covert Operations for the deployment of the undercover officers.[^1] Crown counsel says that no operational plan developed by Covert Operations for the deployment of the undercover officers exists, and the evidence supports their position. I accept that position and will make no order respecting such an operational plan. As Sopinka J. stated for the court in R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727:
Once the Crown alleges that it has fulfilled its obligation to produce it cannot be required to justify the non-disclosure of material the existence of which it is unaware or denies. Before anything further is required of the Crown, therefore, the defence must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant.
[9] Before I deal with the other item that the accused seeks, it may be helpful for me to review the history of disclosure relating to the cell insertion videos. While the story is a long one, it informs the analysis of all of the heads of relief advanced by the accused on this application.
The History of the Disclosure of Video Recordings of the Accused and the Undercover Police Officers in the Police Cells
[10] Crown counsel has made extensive disclosure to the defence in this case before trial and on an ongoing basis during the trial. Det. Lioumanis, the case manager of this homicide investigation, knew that, for the purpose of prisoner safety, the cells in all police stations are monitored by the station booking officer when the cells are occupied. However, he did not know until after the preliminary inquiry in this matter, which was held in December 2018, that the 13 Division cameras actually recorded the video. This information was then disclosed to the defence.
[11] At some unspecified time, counsel for the accused asked Crown counsel for a copy of the video recording in the cells in this case. The request was reduced to writing in a letter to Crown counsel from Ms. Greenwood dated March 7, 2019. In that letter, she specifically asked for “Cell Insertion Video Surveillance, February 5, 2018.”
[12] The cell insertion video surveillance sought by the defence consists of three parts – a separate recording of each of the accused and the two undercover officers while they were in the cells. It is unsurprising that there are three parts to the video, since each of the three individuals was placed in a separate cell.
[13] Although Det. Lioumanis was able to provide the part of the video that recorded Mr. Schlatter in the cells to Crown counsel within a couple of weeks, he had to wait for some time before he could provide the parts that recorded the undercover officers to them. This took time because Covert Operations, a component of the Intelligence Services of TPS, considered itself obliged to redact the faces of the undercover officers, who were still in the field, as well as the safety equipment used by them in the operation.
[14] There presumably were intervening communications amongst counsel on this issue that were not provided to me, but on May 6, 2019, Ms. Richards wrote to Ms. Greenwood and Ms. Riva, and stated:
You will recall that the cell insertion video regarding your client required redaction before it could be viewed as discussed at the Judicial Pre-Trial before McMahon J. The video is now ready for viewing. Are you available for such arrangement to be made for Wednesday afternoon, May 8, 2019 at the Crown’s Office, 393 University Avenue?
[15] Counsel for the accused assert to me that they did not know until much later that there were video recordings of the undercover officers. In support of this position they referred me to the wording of Ms. Richards’ note, which makes reference to “the cell insertion video pertaining to your client.” They say that this is an obvious reference to a single video – a video of the accused alone.
[16] I do not doubt that counsel now believe that they did not know that there were video recordings of the undercover officers in the cells until much later, but I am quite satisfied that they are wrong. Their reliance on a few words in Ms. Richards’ letter does not settle the issue for me. I say this first of all because of the reminder in Crown counsel’s note of the need for redaction of the video prior to release to the defence. It is plain from this that counsel had already been informed of the need for redaction; and counsel for the accused surely knew that there was no reason for any redaction of the video of Mr. Schlatter. In fact, Mr. Schlatter’s video has never been redacted at all. On the other hand, as is commonly the case, there was a need to obscure, or redact, the faces of the two undercover officers in their videos for their personal safety, in light of their involvement in ongoing undercover work. If this was not understood by counsel for the accused, then I am hard pressed to understand their failure to ask any questions about the reference to redaction.
[17] There is additional support for the view that counsel must have been aware of the existence of videos of the undercover officers in the evidence given by Det. Lioumanis on this application. He testified that it was the intention of the Crown to permit counsel to view all three recordings at the May meeting. He stated that at that meeting, which apparently actually took place on May 9, counsel were advised that there were no audio recordings accompanying the video. As a result, Det. Lioumanis testified, counsel chose to watch the video of the accused in the cells but not the video of undercover officers and did not do so.
[18] Det. Lioumanis’ account of the May 9 meeting stands uncontradicted. I am satisfied that his account is accurate. In particular, I am satisfied that counsel for the defence were aware that there existed a video recording of the undercover officers in the cells. It is hardly surprising that they chose not to watch it. There was no reason at that time for them to invest several hours in watching soundless videos of two officers doing virtually nothing of consequence in police cells.
[19] However, by August 13, 2019, counsel for the accused had obviously decided that they did wish to review the video of the undercover officers in their cells. In a letter bearing that date, amidst a number of other disclosure requests, counsel asked for “A copy of the cell videos of Undercover 1 and Undercover 2 at 13 Division on Feburary 4th, 2018”. In response, on August 25, 2019, Crown counsel wrote, “These videos have been disclosed to you for some time”. By this she obviously meant that they had been made available for viewing by the defence upon request. In any event, counsel for the accused were obviously satisfied by this response. They made no further request for the video recording of the undercover officers until after the commencement of the trial, specifically during the evidence of Det. Lioumanis when he testified on the accused’s application for a declaration that his right to silence was infringed.
[20] In the course of the evidence of Det. Lioumanis on the s. 7 application, the defence renewed its disclosure request for the video of the undercover officers in the cells. Of course, since the identity of the undercover officers was now known to the accused, and their faces had been seen by the accused when the undercover officers testified on the voir dire, the video no longer needed to be redacted to obscure their faces. However, Crown counsel explained that before the video could be disclosed editing had to be done to permit the viewing of their faces, but also to redact “investigative techniques” that would otherwise be disclosed. We now know that the reference to “investigative techniques” was a reference to the use of a device in the possession of UC1 known as an Officer Protection Kit (“OPK”). Crown counsel had in mind the need to create a third version of the video, one with the officers’ faces unredacted, but the device still redacted.
[21] Counsel for the accused did not take issue with the Crown’s proposal and were content to proceed with the s. 7 application without disclosure of the video but wanted it to be disclosed prior to the end of the pre-trial motions. I proposed that we complete the s. 7 application, but that I would reserve my decision, and hear any additional submissions counsel advised me they wished to make after reviewing the video and before ruling on the application. Counsel accepted this proposal. On January 22, 2020, in light of the fact that the date scheduled for the selection of a jury from a special panel called for this case was fast approaching, I advised counsel that I was prepared to give them a “bottom line” ruling on the outstanding pre-trial motions, including the s. 7 application. Counsel for the accused took no issue with me doing so and did not suggest that they had any further submissions to make, and I proceeded to dismiss their s. 7 application, with reasons to follow.
[22] The jury selection process commenced on January 24, 2020 and was completed on January 28. Crown counsel opened to the jury on January 30, 2020 and called their first witness that day. In the evening of February 5, 2020, counsel for the accused received the third version of the video of the undercover officers in the cells. To be clear, the first version was unredacted. In the second version the faces of the undercover officers and the communication device were redacted. In this third version, the faces were not redacted, but the communication device was.
[23] On February 5 and 6, 2020, UC1 testified in chief before the jury. On February 7, 2020, counsel for the accused began their cross-examination. Very early in the cross-examination, counsel asked UC1 if his communication with the accused was monitored. Crown counsel did not object to this question but reiterated that the Crown objected to disclosure of the equipment used by UC1 that enabled monitoring on the basis that it was a privileged investigative technique. I permitted counsel for the accused to ask the officer if monitoring was done, but not to ask specific questions about how it was done. More specifically, I permitted counsel to ask if UC1 went into the cell with a device, which he acknowledged, but not specifically whether he spoke into it or not. I indicated that I would hear argument and rule on that issue later, and that any additional questions that I permitted could also be asked later.
[24] In the morning of February 6, 2020, at a point in time when the examination-in-chief of UC1 was almost completed, counsel for the accused indicated that from watching the third version of the video, it was apparent that UC1 had a device with him in the cells, handled the device while he spoke to the accused and moved it from place to place. Counsel for the accused assumed that he did this to optimize the likelihood that that the accused’s voice was being picked up by the device. In my view, it is more likely that he was attempting to optimize the likelihood that the voice of UC2, who was in the cell on the other side of the accused and did not have a device, was being picked up. But, in any event, counsel for the accused became convinced from this observation that the device was a recording device, not simply a monitoring device, and that the police were surreptitiously recording the communications involving the accused and the undercover officers. As a result, they indicated that they wanted additional disclosure about the matter, that they wanted to challenge the Crown’s claim for privilege and that they wanted to ask for a mistrial if there was in fact police misconduct.
[25] I ruled that the remaining examination-in-chief and the cross-examination of UC1 before the jury would proceed that day, and that if the accused wanted to pursue the matters raised by them, they would be required to bring a written application supported by material, that the Crown would have an opportunity to respond to, and that the matter would proceed to argument when it was ripe. I further indicated that the defence would be at liberty to ask that UC1 be recalled for further cross-examination on any matter that arose out of the motion if I determined that it was appropriate. I reiterated this point at the beginning of the day on February 10, 2020, and again during argument on February 18, 2020. In fact, on February 18, I indicated I would permit further cross-examination of UC1 on this matter if asked.
[26] Following my February 6 ruling, counsel asked that they not be required to cross-examine UC1 until the following day, and I relented. The examination and cross-examination of UC1 before the jury was completed on February 7, 2020. Crown and defence filed their motion material in the morning of Monday, February 10, 2020, and the hearing of this motion began that day.
[27] Counsel for the accused and the Crown led evidence on the voir dire on February 11 and 18, 2020. Counsel for the accused called the two handlers of the undercover officers, as well as Inspector Pogue and Det. Lioumanis. One of the handlers did almost all the monitoring of the cell communications. The second handler covered for the first handler briefly when he took breaks, and Inspector Pogue also covered for him briefly when the second handler had to leave to attend to a family matter. The Crown led the evidence of one witness on the voir dire, a manager of Covert Operations with the Toronto Police Service. This officer has been an undercover officer and handler for 18 years. He has participated in over 1,500 operations in Canada and internationally and has done everything from cell insertions to long-term undercover operations. He has taught undercover courses and is a member of the National Board of the Advisory Committee of Canada for Undercover Operations. He is involved in the selection of OPKs for the TPS.
[28] In the course of the voir dire, the Crown narrowed the scope of its claim of public interest privilege for the investigative technique used in this case. Crown counsel sought only to protect the specifics of the piece of equipment used, that is: its model number, manufacturer, appearance, and its functions other than with respect to monitoring and recording. In the end, they took no objection to questions about the placement of the equipment by UC1, or his reasons for it. Counsel for the accused were clear that they did not want to know the specifics of the piece of equipment but insisted that they still wanted to see it being used. In other words, they still wanted an unredacted copy of the video of UC1 using the equipment. I will resolve the issue of privilege next.
The Claim for Public Interest Privilege
[29] Disclosure of police investigative techniques is subject to qualified privilege. Where the claim is made, the judge must first decide whether the information sought is relevant to an issue in the proceedings. If it is, then evidence of the investigative technique used will not be disclosed if the public interest in effective police investigation and the protection of those involved in it outweigh the legitimate interests of the accused in disclosure of the techniques (see R. v. Richards (1997), 1997 CanLII 3364 (ON CA), 34 O.R. (3d) 244 (C.A.)).
[30] The approach that a judge must take when the issue arises was summarized by Strathy J., as he then was, in R. v. Barnes, 2012 ONSC 7185, at para. 23. He stated:
To sum up these authorities, a trial judge must ask:
▪ Is the evidence relevant? If it is not relevant, the issue of admissibility does not arise.
▪ Could the information sought to be disclosed reasonably affect the outcome of the trial? If not, then the need for disclosure will be reduced and the claim for privilege can safely be upheld.
▪ If the evidence is relevant and could reasonably affect the outcome of the trial, would upholding the claim for privilege have the effect of preventing the accused from making full answer and defence? If not, then there is presumably less concern about upholding the claim for privilege.
▪ If the claim for privilege could prevent the accused from making full answer and defence, and the Crown is not prepared to either stay the proceedings or withdraw the claim for privilege, the trial judge must engage in a balancing process, weighing the interests of the accused on the one hand and the interests of society in protecting investigation techniques and the security of third parties on the other hand. If necessary to strike a fair balance, the court may impose appropriate safeguards before permitting the introduction of the evidence.
[31] I will follow this approach.
[32] I begin with relevance. In this case, the evidence is said to be relevant to support a claim that the police were using the device to record the communications of the undercover officers with the accused, rather than simply monitoring the communication. If the police were recording the communications, there would be a substantial argument that they would be violating s. 8 of the Charter, since they had no judicial authorization to do so. Secondarily, whether or not s. 8 was violated, counsel for the accused say that if the police were recording, it would undermine the credibility of the undercover officers.
[33] In my view, disclosure of the video is entirely irrelevant. The video would not tend to prove that the police were recording communications in the cells. There is absolutely no evidence that the OPK used by UC1 was even capable of recording, far less being used to record. This allegation has been manufactured by counsel out of whole cloth. What is more, at the request of the accused, I have reviewed some of the unredacted video of UC1. There is absolutely nothing in the image of the device that could conceivably advance the defence claim.
[34] In any event, even if I am wrong and the video is marginally relevant, for the reasons I have stated it could not reasonably affect the outcome of a s. 8 application or of the trial. I will have more to say about s. 8 later in these reasons. Furthermore, upholding the privilege could not prevent the accused from making full answer and device. His counsel have had a full opportunity to explore the issue of recording, and have been unable to make any headway at all. The video could not change the outcome. In addition, I have indicated that I will permit the accused to cross-examine UC1 about his reasons for removing the device from his person and placing it where he placed it in the cell. Seeing the video could add nothing to this.
[35] Finally, if I am required to weigh the interests of the accused against the interests of society in protecting investigative techniques and the safety of those who employ them, a fair balance leads me to the same outcome. The Crown has, in the end, narrowed its claim of privilege to the very minimum. Effectively, all I am asked to protect against is the possibility that a person suspected of crime might know what to look for if that person suspects he or she is dealing with an undercover officer. The public interest in doing so clearly outweighs the trivial possibility that the accused may gain a benefit from seeing the video.
[36] Accordingly, I sustain the Crown’s claim of privilege, and decline to order disclosure of the fully unredacted video.
Conclusion about Disclosure
[37] I make no order for additional disclosure. However, UC1 will be recalled for the purpose of further cross-examination by counsel for the accused limited to the subject of his handling of the OPK in the cells.
SECTION 8 OF THE CHARTER
How I Will Proceed
[38] Counsel for the accused argued that I should declare a mistrial, in part, to permit them to bring an application to exclude the evidence of the undercover officers which the jury has already heard as a remedy for an alleged breach of s. 8 of the Charter, which they became aware of only during the trial, specifically the unlawful recording or monitoring of the communications of the accused with the undercover officers.
[39] The logic of granting a mistrial for this purpose escapes me. The declaration of a mistrial should be granted only as a last resort, in the clearest of cases, and where no remedy short of a mistrial will adequately redress the actual harm occasioned (see R. v. Toutissani, 2007 ONCA 773, at para. 9). The interests of the accused must be balanced against the interests of “public justice” (see R. v. D. (T.C.) (1987), 1987 CanLII 6777 (ON CA), 38 C.C.C. (3d) 434 (Ont. C.A.)). Here the balance is simple to identify. I can consider the s. 8 application now. If I exclude the evidence of the undercover officers, then I must inevitably grant a mistrial. If I dismiss the application, then I must inevitably dismiss the application for a mistrial.
[40] In addition, the s. 8 application will require no additional expenditure of court resources. I have heard all of the evidence that could conceivably be needed to dispose of this application, and I have heard full argument. As a result, I will proceed to resolve the matter.
[41] As I have indicated, the accused asserts a violation of the right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter on two alternative bases: first, on the basis of recording a private communication without judicial authorization; and second, in the alternative, on the basis of monitoring a private communication without authority. I will consider each of these in turn.
Unauthorized Recording
[42] The onus is on the Crown to rebut the presumption of unreasonableness where a search has taken place without a warrant (see Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145). But it falls to the accused to first establish that a warrantless search took place (see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265). Here, as I have stated, the accused has failed to establish that the search in issue, that is, an alleged recording of Mr. Schlatter’s private communication with the undercover officers, took place, either by way of a permanent recording, or even by means of the handlers taking of notes. The handler who monitored most of the communication denied that there was any recording made. He described the OPK as a one-way transmitter. It cannot be used by a handler to give instructions to an undercover officer, and to his knowledge, it has no capacity to record unless the manufacturer sets it up to record. In twenty years of involvement with covert operations, he had never tried to record with an OPK because, in the form provided to the TPS, it is not a recording device.
[43] The other two handlers who filled in for the primary handler when he took breaks also denied using the OPK as a recording device. The evidence is uncontradicted that the OPK was not capable of recording without modification or at least some form of initializing, which was beyond the capability of the TPS officers involved in covert operations.
[44] If more were needed, the highly experienced manager of Covert Operations called as a witness by the Crown was particularly persuasive. As I noted, he is part of the team that selects and purchases OPKs for the Covert Operations unit within Intelligence Services of the TPS. He described an OPK as a safety device that enables the monitoring of private communications. The kits used by Covert Operations have no recording capacity whatsoever. The manufacturer offers the capability of recording, but his team has chosen to never have it enabled in any of the kits they purchase. The manufacturer could enable recording in these kits, but no one in Covert Operations is trained to do so, and none of their trainers or handlers has the knowledge or ability to do so. He went on to say that, in his experience, undercover work is never done without monitoring for safety purposes. In such cases, no notes are made of what is heard. Where the interception for evidence purposes is judicially authorized, it is done in a different way, with a separate, second device.
[45] I accept this evidence without hesitation. The accused has completely failed to establish that the police recorded the private communications of the accused. In fact, I am satisfied beyond all doubt that his private communications were not recorded. As a result, this aspect of the s. 8 application fails.
Monitoring without Authority
[46] I will begin by examining the law relating to monitoring.
[47] Section 184(1) of the Criminal Code makes it an indictable offence for any person to knowingly intercept a private communication by means of an electro-magnetic, acoustic or other device. By virtue of s. 183 of the Code, intercepting a private communication by means of an electro-magnetic, acoustic or other device includes listening to, recording or acquiring a private communication by means of such device. However, s. 184(2)(a) provides that s. 184(1) does not apply to a person who has the express or implied consent of the originator of or the person intended to receive a private communication, often referred to as one-party consent intercepting, or participant surveillance.
[48] As a result, a police officer who monitors or records a private communication with a device who has the consent of a party to the communication commits no offence.
[49] However, in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 47, the Supreme Court of Canada concluded that:
where persons have reasonable grounds to believe their communications are private communications in the sense defined above, the unauthorized surreptitious electronic recording of those communications cannot fail to be perceived as an intrusion on a reasonable expectation of privacy. [Underlining in original; italics added.]
[50] I have emphasized the word recording in the above passage because the word is used repeatedly in the judgment. Clearly the making of a permanent recording of private communications was the concern of the court, and the issue on the appeal.
[51] On p. 38 of the judgment, the court was clear that the principle issue in the appeal was:
whether the commonly styled “consent” or “participant” surveillance — i.e., electronic surveillance in which one of the parties to a conversation, usually an undercover police officer or a police informer, surreptitiously records it — infringes the right under s. 8 of the Charter to be secure against unreasonable search and seizure. [Emphasis added.]
[52] In my view, Duarte does not suggest that one-party consent monitoring of private communications by an agent of the state for safety reasons rather than evidence-gathering reasons infringes s. 8 of the Charter. Parliament obviously shared this view. In response to Duarte, it enacted s. 184.1 of the Code, which permits an agent of the state, without judicial authorization, to intercept private communications by means of an electro-magnetic, acoustic or other device if the prerequisites in s. 184.1(1) are met:
(a) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception;
(b) the agent of the state believes on reasonable grounds that there is a risk of bodily harm to the person who consented to the interception; and
(c) the purpose of the interception is to prevent the bodily harm.
[53] To prevent misuse of this provision as a ruse for evidence-gathering without judicial authorization, s. 184.1(2) makes the content of any private communication intercepted pursuant to s. 184.1(1) inadmissible in evidence for most purposes, and s. 184.1(3) requires the agent of the state who intercepts a private communication under s. 184.1(1) to destroy, as soon as practicable, any recording, transcript or notes made of the communication in most cases.
[54] Although it is neither unlawful, nor contrary to what was said in Duarte for an agent of the state, without judicial authorization, to intercept private communications by means of an electro-magnetic, acoustic or other device for safety reasons, it is implicit in s. 184.1 that an agent of the state is authorized to do so only if the officer has the grounds mentioned in s. 184.1(1)(b) and the purpose mentioned in s. 184.1(1)(c).
[55] Undercover police work is inherently dangerous. One would expect, just as the manager of Covert Operations testified, that undercover work would never be done without monitoring for safety purposes. Surely we owe this to the police officers who undertake this work on our behalf. But in the unusual circumstances of this case, counsel for the accused argues that the prerequisites to monitoring were not met.
[56] Counsel’s argument turns on the fact that each of the two undercover officers as well as the accused were placed in a cell with bars on the front but with a solid wall dividing each cell from the next. As a result, the police did not have reasonable grounds to believe that there was a risk of bodily harm to the undercover officers caused by the target of interception.
[57] This argument is superficially attractive. No doubt the likelihood that the accused could do harm to either undercover officer given the separating walls, while not impossible in light of the open bars, was relatively remote. But in my view the argument fails upon closer scrutiny.
[58] In response to this argument, the police handlers assert, and the Crown argues, that the term “risk of bodily harm” is broader than simply risk to safety from third parties and includes risks that exist even in a separated police station cell. The handlers and the Covert Operations manager testified to a variety of circumstances where monitoring of an undercover officer in a separated police station cell has averted bodily harm. These include a case where a police officer who was served food in the cells had an anaphylactic reaction; a situation where an officer became sick as a result of a reaction to medication taken earlier in the day; a situation where an officer became lethargic and his speech became slurred as a result of a need for insulin; and a situation where an officer experienced an anxiety attack as a result of being locked in a cell. In each of these cases, the problem was quickly identified, and the officer was extracted.
[59] Needless to say, all of these problems could befall a police officer anytime, and in the course of any police duty. However, in each case the risk of bodily harm was increased by the circumstance of being engaged in undercover work, such as being placed in confinement or the need to avoid exposing the officer’s cover despite the problem. Given the less serious nature of the intrusion into privacy occasioned by monitoring limited to a safety purpose, and the importance of the purpose of the provision – protecting those engaged in undercover work – 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.
[60] Counsel for the accused also argued that even if a wider view of risk of harm is taken, the police lacked reasonable grounds because they also had access to and used video surveillance. I would not give effect to this argument. First, it is clear that in some of the circumstances described by the handlers and the Covert Operations manager, the fact that an officer was in distress was not observed on the video, or the distress was observed earlier by the audio monitor. Further, I was told that the video feed is less reliable than the audio monitoring, and sometimes fails, and as well that there is usually a time delay in the video feed. But these concerns aside, I do not see why the effectiveness of video monitoring precludes audio monitoring. Section 184.1 is not a power that may only be used as a last resort, and there is no reason why it should be.
[61] In this case, the requisite reasonable grounds existed objectively and subjectively, and the monitoring was done for the authorized purpose. There was no violation of s. 8 of the Charter.
[62] Even if I am wrong, and the agents of the state did not believe on reasonable grounds that there was a risk of bodily harm to the undercover officers, I would not exclude their evidence. The breach was minor and technical, the intrusion into privacy was minimal, no recording was made of the accused’s private communication, and the undercover officers made no use of the monitoring in any way for the purpose of assisting them to give their account of the private communication – in other words, there was no nexus between the breach and the evidence sought to be excluded. The accused fails each branch of the test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[63] I am comforted in this conclusion by the decision in R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535. In that case, the accused confessed to an undercover police officer that he had killed a woman and provided many details during a conversation surreptitiously recorded pursuant to a prior judicial authorization. The next day, the officer reviewed the transcript and made corrections based on listening to the tape supplemented with his recollection of parts of those conversations. The trial judge, having concluded that the authorization ought to have been refused because there was an insufficient evidentiary basis to issue it, declared that the tape and transcript were inadmissible but admitted the officer’s viva voce evidence of the conversation, which was basically a recitation of the corrected transcript. This decision was ultimately upheld by the Supreme Court of Canada.
[64] The majority of the court held that there was no doubt that the jury was entitled to hear from the undercover police officer about his conversation with the appellant, since he had, at the time he testified, a present recollection of the “gist” of all of the important elements of the conversation. The court went on to say that there was also no doubt that the officer was entitled to refresh his memory by any means that would rekindle his recollection, whether or not the stimulus itself constituted admissible evidence. This is because it is his recollection, not the stimulus, that becomes evidence. Finally, while the court noted that a significant portion of the officer’s testimony could not be considered to be his recollection, but rather a recitation of the unconstitutionally obtained transcript, they said that the officer’s evidence should not be excluded pursuant to s. 24(2) of the Charter.
[65] In this case, there was no unlawfully created recording or transcript of the accused’s private communication, and so no use whatsoever by the officer in giving his evidence. In these circumstances, the rationale for refusing to exclude the evidence is even stronger. I recognize that Fliss was decided prior to Grant. But applying the Grant approach to s. 24(2) by assessing and balancing the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits, the outcome would unquestionably be the same here as it was in Fliss.
[66] For these reasons, this aspect of the s. 8 application also fails.
Conclusion about Section 8
[67] The application for an order permitting the accused to bring an application to exclude evidence pursuant to s. 8 and s. 24(2) of the Charter is granted, but the application to exclude evidence is dismissed. There was no violation of s. 8 of the Charter, and in any case, if there was a violation, the testimony of the undercover officers should not be excluded from evidence.
REOPENING THE SECTION 7 APPLICATION
[68] Counsel for the accused argue that the late disclosure that the police were monitoring the communication in the cells with UC1 and UC2 justifies the reopening of the s. 7 application. I see no merit to this argument. Having regard to my s. 8 ruling, the undercover officers were engaged in no misconduct. Even if the grounds for monitoring fell short, that was not the decision of the undercover officers. These were two young officers who had freshly graduated from an undercover course who were participating in their first cell insertion. They made no decisions about how the operation would be conducted. They simply did what they were told. Cross-examining them on monitoring will simply not advance an argument that the accused’s statement was elicited.
[69] Counsel suggests that they still should be able to cross-examine the officers about monitoring because such cross-examination may bear on their credibility. I cannot see how this could be so. UC1 and UC2 did not deny that the communications were being monitored. There is no credibility issue to explore.
[70] The application to reopen the s. 7 application is denied.
THE MISTRIAL APPLICATION
[71] Having regard to my dismissing the s. 8 application, my refusal to reopen the s. 7 application and my order permitting limited additional cross-examination of UC1 about his handling of the monitoring device, there is no basis for a mistrial. The application is dismissed.
DISPOSITION
[72] I have disposed of the relief sought by the accused in this application as follows:
• The Crown’s limited assertion of investigative privilege is granted and the application for certain additional disclosure is refused.
• UC1 will be recalled for the purpose of further cross-examination by counsel for the accused limited to the subject of his handling of the OPK in the cells.
• The application for an order permitting the accused to bring an application to exclude evidence pursuant to s. 8 and s. 24(2) of the Charter is granted, but the application to exclude evidence is dismissed.
• The application for an order permitting the accused to reopen the s. 7 application is refused.
• The application for a declaration of a mistrial to permit the accused an opportunity to receive and review disclosure, to reopen and relitigate the s. 7 application and to bring a s. 8 application is dismissed.
M. DAMBROT J.
RELEASED: March 5, 2020
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
REASONS FOR DECISION
DAMBROT J.
RELEASED: March 5, 2020
[^1]: The accused initially sought a third item as well: more detail about the Officer Protection Kit used by UC1. However, they abandoned this request when Crown counsel advised that they would be calling a witness who would be in a position to tell them more about the device.