In March of 2020 the trial of Kalen Schlatter, charged with first degree murder of Tess Richey, ended with a conviction of guilty. Portions of the Crown’s case focused on evidence that was obtained by an undercover officer inserted into the same cell as Schlatter in an effort to obtain information about or a confession in regards to the crime for which he was brought into custody. Richey’s murder became highly publicized after her mother was the person to find her body in stairwell not far from where she was last seen and despite an ongoing police investigation into her disappearance. The media attention garnered by the gruesome case likely led the authorities to employ as many investigatory tactics as possible in order to strengthen the case against Schlatter. However, public interest in the successful prosecution of an alleged offence does not warrant the undue violation or subversion of the rights of an accused individual under the Charter of Rights and Freedoms (Charter). And such trickery on the part of the authorities can run the risk of having the opposite effect; it can actually dilute society’s faith in the criminal justice system.
The Supreme Court of Canada (SCC) in the 1990 case of R. v. Hebert (Hebert) explored the concept of this type of questioning where an undercover officer is inserted into “custody” to extract information from the accused. The focus of the SCC’s review of the “interrogation” in the Hebert case focused on whether such an investigatory tactic violated the accused’s right under s 7 of the Charter. Under the Charter, each person is afforded the right under section 7 to life, liberty, and security of the person. The SCC has long held that the enumerated rights under section 7 encompass the right to remain silent. Specifically, the right to remain silent is triggered during any communication between the state and an accused party.
In finding that the police tactics in Hebert were unlawful, the court found that when in custody and coerced into conversation he did not waive his right under section 7 and that the subversion of his right was not justifiable as a reasonable limitation as it was not prescribed by law. In the nearly 30 years since the SCC released its decision in Hebert the case remains seminal to the Canadian jurisprudence on the issue. Once the accused had informed the police that he did not wish to provide a statement, there was no lawful authority to justify the police “tricking” him into one. The emphasis of the court in reaching their decision was placed on how the undercover agent elicited information from the accused once he was placed in the cell. Not only was the right to silence ignored by the authorities, it was actively thwarted.
The police, as part of their duty to investigate a crime, can question individuals. They also can detain them for investigatory purposes. There are no constitutional rights, in Canada, that enable an accused person to stop an investigation from being commenced against them. A sort of trade off is formed by section 7 and the right to silence. The accused cannot stop the police from completing their duties and in exchange the accused cannot be compelled to cooperate.
In the investigation against Kalen Schlatter it appears as if the police “trickery” went as far as to have the undercover officers elicit information from the accused, as opposed to merely providing the accused with the ability to confide in an undercover agent of the state who happened to be placed in his cell.
The officer, who testified under anonymity (from behind a large black screen), insisted that he spoke with Schlatter for hours after he was placed into custody. Two officers were assigned by the Toronto Police Service to adduce evidence from Schlatter. In the early hours of the morning, following his arrest the night before, an undercover officer was placed on either side of Schlatter’s holding cell. Per their own testimony, they lied to Schlatter, insisting that they were in custody after having been found in possession of stolen property.
The jurisprudence in Canada would find that this “interrogation” would be an unsavable violation of an individual’s s7 rights if that individual was enticed to provide information by the officers and was not merely freely divulging sensitive information. Yet the court allowed the evidence, and the jury subsequently returned a verdict of guilty.
The police asking Mr. Schlatter why he was brought into custody, which is confirmed through the officer’s testimony to have occurred, could be seen as either innocent banter between inmates or an attempt to elicit information in a clandestine forum. However, the available reports emanating from the court do not provide sufficient clarity as to the nuances of the conversation that occurred in the cells.
Since the conviction, Mr. Schlatter has given notice of his intent to appeal the verdict. One of the grounds of his appeal is a claim that the court erred in deeming the evidence given by the undercover officers as admissible. Since lower courts are bound by the decisions made by higher courts, it falls to the Court of Appeal to find if the decision by the SCC in Hebert applies to Mr. Schlatter’s case, or if the facts are different enough to allow for a variation. Until the Court of Appeal hears Mr. Schlatter’s case, he stands convicted of first degree murder, which comes with a mandatory sentence of life in prison with the possibility of parole at 25 years. This severe sentence is based on a potentially Charter violating investigation, and the upcoming Court of Appeal case is certainly one to be mindful of.