Warning: This story contains graphic content.

A jury has begun deliberating whether Kalen Schlatter strangled and sexually assaulted Tess Richey in the early hours of Nov. 25, 2017, in a laneway off Church Street.

The case is the only Toronto jury trial still going after the Superior Court of Justice announced a near-total shutdown amid the COVID-19 pandemic.

The Crown has argued Schlatter killed 22-year-old Richey because she refused to have sex with him. Schlatter’s semen was found on the front left thigh of Richey’s pants and his saliva was found on her bra. The Crown said Richey sustained injuries to her hands, wrists and forehead consistent with a struggle.

“Schlatter sexually assaulted Tess Richey and brutally strangled her to death because she fought back,” prosecutor Bev Richards said in her closing address. “Because she tried to defend herself from a predator.”

Schlatter, now 23, has denied killing Richey and testified that she was alive when he left the laneway at 5 a.m. He said he had been consensually making out and grinding with her when he ejaculated in his pants.

“I said OK, have a good evening, get home safe,” he said he told Richey after she told him he did not need to stay with her.

Security video shows Richey and Schlatter walking into the laneway hand-in-hand at 4:14 a.m. and Schlatter leaving alone at 5 a.m. Richey is never seen leaving the laneway.

The defence has suggested another man had been following Richey that night and that, almost immediately after Schlatter left, the man climbed over a tall gate into the laneway and killed Richey when she rejected his sexual advances.

Richey’s body was found at the bottom of a stairwell in the laneway between two houses on Church Street on Nov. 29, 2017, by her mother and a friend, four days after she was reported missing. Her mother had come from North Bay, where Richey and her three sisters grew up, to search for her daughter. Richey had moved to Toronto and was working towards becoming a flight attendant.

Two Toronto police officers face disciplinary charges for allegedly failing to properly investigate Richey’s disappearance. Her case, along with several others in the Gay Village tied to serial killer Bruce McArthur, prompted the Toronto Police Services Board to order a sweeping review of how such cases are handled, and to launch a missing persons unit.

What the jury didn’t hear

According to a pretrial ruling, the jury did not hear evidence from Schlatter’s cellphone that the Crown sought to introduce, including 15 violent sexual images involving “forced sex or violent choking in the context of forced sex” and searches about “forced sex” and violent pornography.

One search from Feb. 4, 2018, was for a video titled “Teen Forced and Then Thrown Away Like Garbage”, which, according to the ruling, is a dramatization that graphically depicts a violent sexual assault involving manual neck compression in the course of intercourse causing unconsciousness, and perhaps death.

The Crown also sought to call two of Schlatter’s former sexual partners to testify about engaging in consensual sex involving choking.

One woman testified that the choking was pre-negotiated and that Schlatter always stopped when she indicated he should. On one occasion she said he told her he didn’t feel comfortable strangling her, pulling her hair or holding her with force because he had difficulty gauging his own strength and restraining himself. He was afraid of not being able to stop himself, she said according to the ruling.

Justice Michael Dambrot acknowledged the evidence was clearly relevant to the case.

“Evidence that the accused engages in sex that includes choking his sexual partner, albeit consensually, taken together with his obsessive interest in violent pornography that often includes non-consensual ‘choke-out’ sex, tends to show a propensity on his part to engage in violent sex involving choking,” he wrote.

However, he ruled, the prejudicial effect would be greater and could lead to some jurors wishing to punish him for behaviour they might consider morally repugnant.

“The accused’s participation in choking sex and his interest in violent sex may be peculiar, but it is far from distinctive. It certainly cannot be said that it is so highly distinctive or unique as to constitute a signature,” Dambrot wrote.

What happened during the trial

On Friday, the judge gave legal instructions to the jury as Schlatter sat in a chair in the corner of the courtroom. In front of the jury, he was permitted to remove the mask and gloves placed on him because a jail guard at the Toronto South Detention Centre had been tested for COVID-19. Court heard it was unlikely Schlatter and the guard ever came into contact with each other at the jail where Schlatter has been held since his arrest in February 2018.

Over the seven-week trial, the jury heard that Richey had gone out dancing with her high school friend Ryley Simard at a Church Street bar called Crews and Tangos, to forget a recent break-up.

The jury viewed hours of security footage from inside the bar and in the Church-Wellesley area. Richey, Simard and Schlatter can be seen walking on Church Street and on Dundonald Street between about 2 a.m. and 4 a.m. After Simard left, Richey ordered an UberPool at 4:02 a.m. and walked to Church Street.

Security video shows Schlatter followed Richey and sat down with her at the corner of Church and Dundonald streets. Richey never got the UberPool and walked with Schlatter, hand-in-hand into the laneway.

The Crown said in their closing address that we will never know why Richey walked with Schlatter into the laneway. She suggested Schlatter might have offered to walk her to her Uber via a shortcut.

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Schlatter testified that Richey said she wanted to kiss him and, after they kissed, she led him into the laneway.

After police released surveillance photos of Schlatter in December 2017 in an attempt to find the man who was with Richey that night, Schlatter said he called the police and said it was him in the photo. He went to the police station with his lawyer and, while there, he used a water bottle that he threw away. Police used the bottle to obtain a DNA sample to test against the DNA found on Richey’s clothes.

Schlatter was kept under surveillance and arrested after the DNA match came back in early February. A police officer testified Schlatter was arrested for “public safety” reasons since it was a stranger homicide.

Schlatter was arrested after watching the Superbowl with his family at a theatre and taken to a police station.

Two undercover officers were placed in the cells with Schlatter and had a conversation with him, prompted in part by them mentioning the card game “Magic: The Gathering.”

The conversation was not audio-recorded because the police did not obtain a judicial authorization in time, the jury heard.

One undercover officer said Schlatter bragged about his sexual conquests. He said he had made out with Richey in a stairwell in the alley but she didn’t want to have sex because she was on her period which made him “pissed off.” He said she was alive when he left and that police were trying to pin it on him.

Schlatter denied saying he was angered by Richey not wanting to have sex and said he was trying to conceal that he is bisexual to avoid being harmed in jail.

At the end of the Crown’s case, prosecutors made the last-minute decision to call Schlatter’s former cellmate to testify. The man, who cannot be identified due to a publication ban, said Schlatter confessed to getting sexually aroused and “losing control” as he choked and then strangled Richey with a scarf. He said Schlatter told him he ejaculated on Richey and when he untied the scarf she was dead.

In his legal instructions to the jury, Dambrot stressed the danger of relying on the testimony of a jailhouse informant, noting that they have been involved in past wrongful convictions.

He said the evidence of the man, a career criminal and self-professed liar, cheat and “bad guy” with a history of disregard for the court, had to be approached with “the greatest care and caution.”

The Crown has argued there are independent details that can corroborate his evidence. The defence has said it is clearly a fabrication based on information about the police investigation mentioned by Schlatter to his cellmate.

The jury has four possible verdicts: guilty of first-degree murder, guilty of second-degree murder, guilty of manslaughter or not guilty.

Schlatter is charged with first-degree murder because the Crown argues that he murdered Richey during a sexual assault. In order to find him guilty of first-degree murder the jury must also find him guilty of sexual assault.

If the jury finds that Schlatter murdered Richey but did not sexually assault her they would find him guilty of second-degree murder.

Deliberations will happen as usual — except that, in order to allow for social distancing, the jury will be given the use of a large courtroom rather than the smaller jury room.

At the start of his instructions, Dambrot thanked the jury for choosing to continue to hear the case.