As Toronto’s Superior Court of Justice prepared for an almost total shutdown for 11 weeks starting Tuesday, jurors in two near-finished murder trials sat side-by-side in their jury boxes and chose to continue onto a verdict.

One was the jury who will decide, after a six week-trial, whether Kalen Schlatter sexually assaulted and strangled Tess Richey on Nov. 25, 2017. The jury was given the option to start deliberations a day earlier than planned, but chose to continue with the original plan to be sequestered on Friday.

Also Monday, jurors in a sexual assault trial that began Friday indicated they too wanted to continue, but the judge decided instead to postpone. The jurors sat spaced out in the public gallery of the courtroom as the judge ordered that the trial be adjourned until June 1, 2020, in part because people vulnerable to COVID-19 are involved, and over the length of time the trial would take to complete. Eleven of the jurors agreed to return at that time to continue the trial.

The two murder trials are the only Toronto cases excluded from the order to postpone all trials in the Superior Court until June. They were exempted in part because they are in the closing arguments stage and because it may be difficult to reconvene months from now.

“We live in challenging times. With the worldwide spread of the COVID-19 virus a public health crisis is looming on the horizon,” Superior Court Justice Michael Dambrot told the jurors at Schlatter’s trial Monday afternoon as about 30 people — including Richey’s family and friends, Schlatter’s family, media and members of the public — were in the public gallery.

Dambrot noted that public officials have urged everyone to take reasonable steps to slow the spread of the virus.

As safety measures, he told the jurors the courthouse will be almost entirely closed Tuesday, greatly reducing the number of people in the building, adding that they would have the use of a larger courtroom for deliberations, taxis for transport to and from court, and lunch would be ordered in.

“We do not want anyone to feel they are being asked to put their health at risk in order to serve as members of the jury," he said, before giving the jury time to decide whether to proceed. “You are engaged in important work and we not only want you to be safe, we want to you to feel safe.”

As the trial resumed Monday afternoon, Schlatter’s lawyer Lydia Riva told the jury that the evidence showed her client was innocent and that another man killed Richey that night.

“This was a tragic homicide. Do not compound the tragedy by having an innocent 21-year-old convicted of a crime he did not commit,” Riva said.

The Crown will make their closing arguments Tuesday. It has alleged Schlatter, now 23, sexually assaulted and killed 22-year-old Richey after she refused to have sex with him and left her body at the bottom of a stairwell in a laneway off Church Street.

Security cameras show Schlatter and Richey going into the laneway at 4:14 a.m. on Nov. 25, 2017; Schlatter can be seen leaving alone at 5 a.m.

Schlatter left in a “calm and nonchalant” manner Richey was still alive and he had committed no crime, the defence argued Monday. Instead, another man killed her seconds or minutes later, perhaps vaulting over a fence into the backyard of the house next door and over a tall wooden gate into the laneway, she said. That would not have been captured on the motion-sensitive security cameras, she said.

Riva argued the Crown’s motive did not make sense. “Mr. Schlatter did not struggle with rejection. Nor is there is any evidence he would have any difficulty finding a sexual partner if he wanted one,” she said.

She said the DNA evidence, including Schlatter’s semen found on Richey’s pants and his saliva on her bra, suggests Schlatter had a consensual sexual encounter with Richey, during which he ejaculated in his pants. The conversation they had about her not wanting to have sex because she was on her period “is evidence that their encounter was consensual because they talked about it,” Riva said.

Riva said Schlatter’s testimony that Richey asked to kiss him and led him into the laneway where they “fooled around” in a stairwell should be believed. Richey was “ambivalent” about going home, choosing not to get into a taxi and then not getting the Uber home she had ordered, Riva said.

Richey was sad and heartbroken after a breakup, Riva said.

“It is not hard to believe that a young person would have a meaningless sexual encounter after a breakup. This is when a person feels irrational, unloved or unappealing and seeks validation or affection.” she said. “It is understandable.”

Riva told the jury to observe Schlatter’s body language towards Richey as seen on the security videos from the night, which show Richey, her friend Ryley Simard and Schlatter walking on Church Street and Dundonald Street. His appearance is neither “aggressive or inappropriate,” she said.

A woman who ended up speaking to Richey on Dundonald Street for about 20 minutes testified that Schlatter “seemed like a harmless kid.”

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“He seemed that way because that is what he is,” Riva said.

Riva told the jury to reject the testimony of Schlatter’s cellmate in jail, who said Schlatter confessed to choking Richey with a scarf and ejaculating on her.

The man, who cannot be identified due to a publication ban, is a sociopath and “pathological liar” who sees Schlatter as a “get-out-of-jail free card,” Riva said.

Calling him to testify “is an act of desperation on the part of the Crown,” she said.

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She said his account of Schlatter stealing $60 from Richey is based on the police’s initial theory of the case presented to Schlatter in his post-arrest interrogation. In fact, Riva said, more accurate ATM records show Richey took out the $60 before she went to Crews and Tangos with her friend and she would have spent the money there. There is also no evidence that Schlatter or Richey wore a scarf that night, she said.

Riva challenged the credibility and reliability of the undercover officer who testified that Schlatter said he was upset when Richey did not want to have sex.

She questioned why police did not obtain a judicial authorization for an audio-recording of the undercover operation where two officers posed as recently arrested men in police cells with Schlatter, even though he’d been under surveillance for weeks and police carefully chose when to arrest him.

A police officer has testified that Schlatter was arrested for “public safety” reasons and that there was no time to complete the authorization.

Riva also questioned why the two undercover officers chosen to speak to Schlatter, who had to then remember everything he said and make rough notes three hours later, were on their first ever assignment.

“As hard as it might to be to accept, and uncomfortable as it might be and make us feel, the criminal justice system can get it wrong,” she said.

Riva suggested Schlatter was an “easy target” and “easy to fool” for undercover officers as a young man who had never been to jail before. As the last person to be seen with Richey on video he is “easy to blame” by the police but the video doesn’t tell the whole story, Riva argued.

“Kalen Schlatter did not do this,” she said. “He did not kill Tess Richey.”