Kalen Schlatter Appeals Guilty Murder Verdict Claiming Unlawfully Obtained Evidence

Written on Behalf of Affleck & Barrison LLP

In March 2020, Kalen Schlatter (“Schlatter”) was convicted of first degree murder in the highly publicized death of Tess Richey (“Richey”), and sentenced to 25 years in prison with no parole.

Schlatter was tried before a jury for the first degree murder of Richey in Toronto on November 25, 2017.  Justice Michael Dambrot, in sentencing Schlatter, noted that his “appetite for violent sex” led him to strangle Richey only hours after they met. 

Schlatter has filed a notice of appeal regarding his conviction on the basis that the trial judge made errors in instructing the jurors and admitting evidence at the trial.

WHAT IS AN APPEAL?

In general, an appeal is a request made by a party to a higher court to review a lower court trial or other decision.  In Ontario, the Court of Appeal is the proper forum to review decisions of serious criminal matters.  An appeal from the decision of a trial court judge of the Superior Court of Justice in Ontario is typically heard before a panel of three judges at the Ontario Court of Appeal.

The first step in commencing the appeal process is to file a form called a notice of appeal.  The notice must state what is being appealed, i.e. the conviction, the sentence or both.  The notice must also briefly describe the grounds of the appeal or the mistakes that were allegedly made at the trial.

SCHLATTER’S APPEAL WILL FOCUS ON TRIAL JUDGE’S ERRORS

On appeal, Schlatter will argue that the trial judge gave “unbalanced” instructions to the jurors.  Furthermore, he alleges that the trial judge erred in admitting the evidence of two undercover officers who testified regarding their conversations with Schlatter from adjacent jail cells after his arrest.

In February 2018, Schlatter was arrested and taken to 13 Division where he was booked and placed in one of the cells in the police station.  Two undercover police officers were placed in the cells adjacent to him.  Schlatter had lengthy conversations with both officers over the course of his incarceration. 

At his trial, Schlatter asked the court for a ruling that his right to silence guaranteed under section 7 of the Charter was infringed when he made statements to undercover police officers in adjacent jail cells and that these statements should be excluded from evidence. 

The trial judge heard arguments from counsel for both parties and ultimately ruled that Schlatter’s right to silence was not violated and therefore allowed the statements made to the undercover officers to be entered at the trial.

Justice Dambrot explained the circumstances by which undercover officers can elicit information and how the officers interacted with Schlatter:

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.

Importantly, UCI 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.  … They did not encourage the accused to keep on telling them about his connection to Ms. Richey or his account of what happened.

UNDERCOVER OFFICER TESTIMONY AT TRIAL

At the trial, one of the officers testified from behind a large black screen to preserve his anonymity regarding his conversations with Schlatter (these conversations were not recorded).  

According to the evidence at trial, Schlatter boasted to the undercover officers about  his ability to pick up women.  He told the officers that he “likes a challenge” and that “sometimes you have to push the boundaries with women to see where it goes”. 

The officer testified:

Mr Schlatter said that what he did was something big…  He then asked us if we know a girl named Tess Richey.

Schlatter told the undercover officers that he had met Richey at a nearby nightclub and as the night progressed he ended up on the street with Richey and her friend.  The friend took a streetcar home and left Schlatter alone with Richey.  Schlatter told the undercoverofficer that he was making out with her in an alley.  He wanted to have sex with her, but she told him she couldn’t because she was on her period.  Schlatter said that Richey was falling over drunk and that he had her up against the wall at the bottom of the stairs.  Schlatter told the officers that they stopped kissing and Richey said she wanted to stay at the bottom of the stairwell, so he left on his own. 

We will continue to follow this criminal case as it makes its way to the Court of Appeal and will provide updates in this blog.

In the meantime, if you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.