R. v. Somerton, 2019 NLSC 226

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Somerton , 2019 NLSC 226 Date : December 16, 2019 Docket : 201901G0555 Her Majesty The Queen v. Nathaniel Somerton Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: November 28-29, 2019 December 9, 2019

Summary : The Accused alleges breaches of sections 8 , 9 and 10(

b) of the Canadian Charter of Rights and Freedoms and applies for the remedy of the exclusion of evidence pursuant to

section 24 thereof. The Crown concedes that the Accused’s

section 10 (

b) rights were breached. The Accused’s

section 9 right not to be arbitrarily detained was also breached. After weighing all the factors, the evidence, including computers, forensic examinations, utterances and statements were excluded under section 24(2) of the Charter since to admit them would bring the administration of justice into disrepute. Appearances:

Jennifer M. Colford Appearing on behalf of the Crown Mark J. Gruchy Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Suberu, 2009 SCC 33; R. v. Borden, (SCC), [1994] 3 S.C.R. 145; R. v. Prosper, (SCC), [1994] 3 S.C.R. 236; R. v. MacKenzie, 2013 SCC 50; R. v. Pino, 2016 ONCA 389; R. v. Grant, 2009 SCC 32; R. v.Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233; R. v. Fliss, 2002SCC 16; R. v. Taylor, 2014 SCC 50 STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] In September, 2015 the Royal Canadian Mounted Police (“RCMP”) detected the download of four videos of various lengthsthat met the definition of child pornography. They obtained a Production Order to determine whether the Internet Protocol (“IP”)address of the suspect computer was located within the jurisdiction of Newfoundland and Labrador. Upon having satisfied themselvesthat the IP address was, in fact, located in St. John’s, the RCMP conducted further inquiries to determine who lived at the suspectaddress.

On October 17, 2015 a search warrant was obtained to enter the house where the child pornography had been downloaded. [2] On January 10, 2016 seven police officers comprised of a joint task force of RCMP and the Royal NewfoundlandConstabulary (“RNC”), attended at the residence of the Accused. The interaction at the house, from the moment that the door wasknocked upon, was audio recorded and the entire recording was played in Court. [3] The door to the residence was unlocked. Some of the officers entered through the unlocked front door.

Other officers were letin through a side door that was opened by officers from the inside after they had gained entry. [4] The Accused and his uncle, Bob Somerton, were home at the time that the warrant was executed. They were both upstairs inbed. The Accused was wearing only his underwear, but was given the opportunity to put on a dressing gown and his eye glasses. Bothgentlemen were escorted to the living room of the house, on the main floor, where they were advised that they were detained but werenot under arrest. [5] At 8:52 a.m.

Corporal Ann Noel read to the Somertons the rights to counsel verbatim from the yellow card provided to her bythe RCMP. Both gentlemen were asked if they wished to contact a lawyer. Bob Somerton replied that he wanted to contact a lawyer, butwanted to know what this was all about. The Accused also said that he wanted to contact a lawyer later. [6] At 8:54 a.m. the police caution was read to both of the Somertons.

They both indicated that they understood the policecaution. [7] Corporal Noel then read the entire search warrant to both gentlemen. [8] Subsequent to the reading of the search warrant, or during the course of it, the Accused made some inculpatory utterances. Immediately after reading the search warrant, and before rights to counsel could be exercised, Corporal Noel asked the Accused aboutthe computers located in the dwelling and whose computers they were.

She also asked him about passwords for the computers. [9] The Accused was then transported in a police car by a uniformed officer to the RNC headquarters because, Corporal Noeltestified, rights to counsel could not be afforded to the Accused in private at his residence. Police cars would appear to have beenavailable at the scene. They were not used for the purpose of affording the Accused his rights to counsel. [10] At 9:32 a.m. the Accused was removed from the police vehicle and taken inside the RNC building. He was taken to aninterview room. At 9:36 a.m.

Corporal Noel read to the Accused a secondary rights to counsel and police caution because he had been inthe presence of other officers after leaving his house and up to his arrival at the RNC headquarters. He said that he understood the rightsto counsel and secondary police caution. At 9:37 a.m. the Accused was then taken to a private room where he spoke with duty counselfrom the Newfoundland Legal Aid Commission.

[ 11 ] The Accused had a nine minute telephone call with his lawyer. It ended at 9:46 a.m. He was then taken to an interview room, where an interview began to be conducted. Up until this point the Accused remained in investigative detention. [ 12 ] At 10:06 a.m. Corporal Noel received a call from the civilian member who was conducting a forensic investigation of the Accused’s computer. As a result of the advice that she received, she placed the Accused under arrest for transmitting child pornography. She again read the Accused his rights to counsel.

He indicated that he understood his rights and wished to speak with counsel again. [ 13 ] Constable Follett then asked the Accused a series of questions going to the voluntariness of any statements that he had made – dealing with promises by police of favour or compulsion. [ 14 ] At 10:09 a.m. he was transported back to the private room. At 10:12 a.m. it was discovered that counsel was not available. At 10:20 a.m. the Accused’s counsel called back.

He conferred with the Accused for seven minutes and, at 10:28 a.m. the Accused was transported back to the interview room. [ 15 ] The interview concluded at 11:04 a.m. – at which time the Accused was transported to cells and, then, to Provincial Court for his first appearance. issues [ 16 ] Counsel for the Accused framed the issues as follows: 1. Were the Accused’s

section 10 (

b) rights of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ( Charter ) violated? a. By the failure to provide him with access to counsel immediately upon his request upon being told of his right to counsel on detention? b. By continuing to elicit evidence from him through questioning subsequent to his request to speak to counsel? c. By comments made by Corporal Noel and Constable Follett respecting his contact with his lawyer? 2. Were the Accused’s

section 9 rights violated when he was taken to the police station for questioning in a state of detention but not a state of arrest? 3. Were the Accused’s

section 8 rights violated by the breaches of his

section 10 (

b) and

section 9 rights coupled with Constable Follett’s declaration that he would “tear the room apart” if information about the location of cannabis was not forthcoming? 4. Whether, because of these alleged breaches and pursuant to section 24(2), the evidence obtained from the Accused should be excluded? analysis [ 17 ] The sections of the Charter relevant to the Accused’s application are as follows: Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure. Detention or imprisonment 9. Everyone has the right not to be arbitrarily detained or imprisoned. Arrest or detention 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 1. Were the accused’s

section 10 (

b) rights of the charter violated? a. By The Failure To Provide Him With Access To Counsel Immediately Upon His Request Upon Being Told Of His Right To Counsel On Detention? [ 18 ] The Accused argues that he should have been afforded his rights to contact counsel immediately upon having been advised of his rights to same. He says that Corporal Noel should not have requested his permission to read the search warrant. She said:

Well, I’m going to read the warrant to you as well. These are your rights you need to be aware of. [19] It is important to note that until the search warrant was read to the Somertons, there had been no opportunity to discuss withthem why the police were in their home. Under

section 10(

a) of the Charter, every person has the right on arrest or detention to beinformed promptly of the reasons therefor. [20] Corporal Noel chose not to use an abbreviated means of telling the Somertons why they had intruded into their home. Shechose, instead, to read to them the contents of the search warrant verbatim. [21] In doing so, I find that she was fulfilling her obligation to inform the Somertons the reasons for their detainment. However, sheought to have told the Somertons the reason for their detention before embarking upon the rights to counsel and police caution.

And sheshould probably have done it in common, everyday language that both of them could understand. However, I find no legal fault with themanner in which she discharged her obligation to inform the Accused and his uncle. [22] In R. v. Suberu, 2009 SCC 33 the Supreme Court of Canada instructed what “without delay” means in the context of s. 10(

b) ofthe Charter. The Court said at paragraphs 40 and 42: 40. As with “detention”, any

interpretation of the phrase “without delay” must be consistent with a purposive understanding of theCharter provision in which it occurs. As this Court noted in R. v. Therens, (SCC), [1985] 1 S.C.R. 613 (S.C.C.) at pp.641-42, and in R. v. Bartle, [1994] 3 S.C.R. 1`73, the purpose of s. 10(

b) is to ensure that individuals know of their right to counsel, andhave access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable tothe exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain theirliberty, and guard against the risk of involuntary self-incrimination. 42. … In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b).

Subject to concerns for officer or publicsafety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of hisor her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. (Emphasis added). [23] The Supreme Court of Canada, in R. v. Borden, (SCC), [1994] 3 S.C.R. 145, instructed that the rights ofsections 10(

a) and 10(

b) are linked. A detainee must be informed of the reasons for the detention so that he may make an informedchoice whether to exercise the right to counsel and, if so, to obtain sound advice based on an understanding of the extent of his jeopardy. [24] The information contained in the search warrant is, in fact, part of the “rights” referred to by Corporal Noel – the search warrantcontains the information that is the subject matter of the right to know what one is accused of under

section 10(a). [25] Counsel objected, in his written submissions, to Constable Dobbin asking the Accused questions about other residents of thehouse prior to the Accused speaking to counsel. [26] One must understand that the execution of a search warrant is difficult not only for the occupants of the house being searched,but also for the police. It is quite legitimate for a police officer to try and determine who may, or may not, be in the house while it isbeing searched. It is a police and occupant safety issue.

The questioning is not aimed at obtaining inculpatory evidence from theAccused – it is sought to ensure that both officers and occupants are safe while the warrant is being executed. I do not find any faultwith Constable Dobbin attempting to determine the identities and whereabouts of other occupants of the home. The situation might havebeen different if the Accused was the home’s only occupant.

But that was not the case. [27] Counsel for the Accused argued, in his written submissions, that while reading the search warrant Bob Somerton becamevisibly upset, and that the police used this to further their investigation. The actual transcript of what transpired is instructive: Cpl. Noel: We’re a joint team, okay, of police officers, when we do investigations of this sort. My office physically sits inGander and that’s why it states the, ah, town of Gander. Okay, but we are here in St. John’s obviously.

There are reasonable groundsfor believing that an offence contrary to the act of Parliament has commit, has been committed, to wit: On or between the 6th day of July,2016 and the 23rd day of July, 2016 at or near St. John’s, in the Province of Newfoundland and Labrador, a person or persons unknowndid transmit child pornography contrary to

section B. Somerton: What? Cpl. Noel: 163 what. B. Somerton: What child pornography? Cpl. Noel: Child pornography. B. Somerton: Oh man. Cpl. Noel: Okay, just a second Bob, okay. You’re indicating to me, and remember I read to you that anything you say, okay,and you’re indicating to me that you’re surprised. B. Somerton: Jesus Christ. God forgive me. Cpl. Noel: Okay. B. Somerton: [Unintelligible]. Cpl. Noel: Alright.

N. Somerton: I know what, I where it come from. B. Somerton: What? N. Somerton: I used Torr sites. B. Somerton: What? N. Somerton: I used Cpl. Noel: You used Torr sites you said to me? Alright now lets N. Somerton: I didn’t say that to you. Cpl. Noel: Well my recording and my, my ears. Alright, we’re, I’m gonna continue with my warrant. Bob you still okay sir? [ 28 ] It is clear from the recording, and the transcript, that Bob Somerton, the Accused’s 70-year old uncle, became upset when he discovered that the police had invaded his home because of an allegation concerning child pornography.

It is also clear from the recording and the transcript that the Accused was moved by his uncle’s distress to make utterances that might well constitute admissions against interest. [ 29 ] However, I do not ascribe any motive on the part of Corporal Noel to elicit further information or advance her investigation. Her response, initially, was to remind Bob Somerton of her earlier warning that anything he said could be used against him.

She then remarked, for the record it would seem, that he was indicating surprise. [ 30 ] Immediately thereafter we have utterances – from the Accused directed to his uncle – telling him he knew where the child pornography had come from and that he had used Torr sites (presumably to obtain it). [ 31 ] When Corporal Noel asked the Accused to confirm that he had said he used Torr sites, his response was, “I didn’t say that to you”. [ 32 ] At the point that the utterances are made by the Accused he knows his jeopardy. He knows that the police are investigating the downloading of child pornography.

He has been given his rights to counsel and he has been given the police warning. The officer is in the process of explaining the reasons for the detention. It is during the explanation that the Accused makes his utterances. His utterances are directed at his uncle, but within earshot of the police officer. [ 33 ] Immediately afterwards Corporal Noel says to the Accused: Cpl. Noel: And if at some point you and I want to have a conver, you want to have a conversation with me, we can go and have that conversation. N. Somerton: Let’s do it. Cpl.

Noel: Okay, I’m gonna continue to read the warrant though, sir, alright? You alright Bob? [ 34 ] Corporal Noel starts to read the warrant again, and finishes. Bob Somerton remarks that he doesn’t know where that (the child pornography) came from. The Accused says, “I know where it came from”. The following exchange then occurs: Cpl. Noel: You’re you’re indicating that you have no knowledge of this but Nathaniel B. Somerton: Oh my God. Cpl. Noel: You’re indicating that you do have some knowledge? N. Somerton: I’ll speak with you. Cpl. Noel: You want to speak with me? N. Somerton: Yeah. Cpl. Noel: Okay.

Ah, can I get you just to sit for a second? Can we get you some clothing? We’re gonna go off the premises if you don’t mind. N. Somerton: Yep, so I’m basically gonna be done for the day am I? So, I’m supposed to work at one. I need to make a call. [ 35 ] Immediately after the rights to counsel, police warning and the search warrant were read to the Accused, in furtherance of sections 10(

a) and 10(

b) of the Charter , the Accused indicated to Cpl. Noel that he wished to speak with her. He did so on two separate occasions as detailed above. Did this constitute a waiver of the Accused’s rights to counsel? b. By Continuing To Elicit Evidence From Him Through Questioning Subsequent To His Request To Speak To Counsel? [ 36 ] As noted above, the Accused indicated to Corporal Noel on two occasions that he wished to speak with her. It was after he had done so that she began to ask him about the computer equipment located in the house. He first identifies the family computer in the living room. He then volunteers:

N. Somerton: That is the family’s. The ones you’re gonna be lookin’ for are up in my room, One Cpl. Noel: In your room N. Somerton: There’s one up in my room. [37] In R. v. Prosper, (SCC), [1994] 3 S.C.R. 236, the Supreme Court of Canada held that the burden of establishingunequivocal waiver is on the Crown. The waiver must be free and voluntary. It must not be the product of either direct or indirectcompulsion. A person who waives a right must know what is being given up for the waiver to be valid.

The standard required for aneffective waiver of the right to counsel is very high. [38] The Supreme Court of Canada instructed, in Prosper, that where a detainee who has previously asserted his or her

section 10(b)rights indicates a change of mind and no longer wants legal advice, an additional information obligation must be met. The police mustadvise the detainee of: a. The right to a reasonable opportunity to contact counsel; and b. The obligation of the police to hold off from trying to elicit incriminating evidence from the detainee during the period. [39] The additional informational obligation was not met by Corporal Noel before she began eliciting information from the Accusedconcerning the ownership of the computers in the household.

The ownership of those computers was vital to her investigation. [40] I find, therefore, that the requirements for a valid waiver were not present in this case and that the continued questioning of theAccused was, therefore, in breach of his

section 10(

b) rights. [41] After the accused was arrested for distributing child pornography, but before he had an opportunity to speak to counselincidental upon his changed circumstances, Constable Follett asked him a number of questions about whether any officers had threatenedhim in any fashion or held out inducements to him. I surmise that this was done with a view to ascertaining whether the statements thatthe Accused made would be admissible. It is furthering the police investigation because the answers are germane to the issue of theadmissibility of the Accused’s inculpatory statements.

Since they were asked after the Accused’s jeopardy had changed, but before hehad the ability to consult counsel, they are in breach of his s. 10(

b) Charter rights. c. By Comments Made By Corporal Noel and Constable Follett Respecting His Contact With His Lawyer? [42] Defence counsel took exception to remarks made by Corporal Noel and Constable Follett regarding counsel. [43] Corporal Noel, at the police station, said the following to the Accused: And, basically, what that’s tellin’ you is that if the lawyer told you to make sure you tell them everything, and tell them this or tell themthese lies or or don’t say this, that’s fine.

But it’s up to you to decide what you’re going to say okay? [44] Constable Follett said this: And I get that, and I respect the process 100% ah, but Tim O’Brien or any other lawyer that you spoke to today or in the future. They’renot the ones, we’re not at their house right? Do you know what I mean? [45] Corporal Noel should have said that whether the Accused chose to speak to the police was his choice, and that he was free tomake that choice.

The references to what advice the lawyer might have given, including the unfortunate reference to the lawyer advisingthe Accused to lie to the police, could reasonably be expected to have had the effect of undermining the Accused’s relationship with hiscounsel. It implies that the Accused should disregard counsel’s (bad) advice and go ahead and tell the police the truth. [46] I take Constable Follett’s statement to mean that the Accused is free to choose to speak to the police – regardless of whateveradvice he may have been given by counsel. I do not find Constable Follet’s statement as problematic.

Police have the right to continueto question suspects after they have conferred with counsel. However, police should be careful in attempting to distance the Accusedfrom his counsel on the basis that counsel is not here now and, presumably, was not there then. I do not believe that Cst.

Follett’sstatement went that far, but it could have easily gone over the edge had he suggested that the lawyer didn’t know all the facts, or thatlawyer’s always give their clients advice not to say anything or other comments of that nature. [47] I find that the undermining of counsel by Corporal Noel is a breach of the Accused’s rights under

section 10(

b) of the Charter. 2. Were the accused’s

section 9 rights violated when he was taken to the police station for questioning in a state of detention but not astate of arrest? [48] The testimony given at the hearing satisfied me that it was not possible to afford rights to counsel to the Accused in his home. There were too many officers in the small house executing the warrant, and privacy could not be guaranteed. [49] Police entered the Accused’s house pursuant to the search warrant at 8:50 a.m. He was transported to the RNC headquarters at9:30 a.m. and spoke with counsel at 9:37 a.m. [50] According to the Supreme Court of Canada in R. v.

MacKenzie, 2013 SCC 50, police are allowed to make an investigativedetention when they have reasonable grounds to suspect that an individual is connected to a particular criminal activity and suchdetention is reasonably necessary in the circumstances. [51] Here the police had reasonable grounds to suspect that child pornography was being accessed from the Accused’s dwelling. His detention was necessary while he was in the house while the police were executing their search warrant. Was it reasonable for the

police to transport the Accused to the police station for the purposes of contacting counsel since privacy could not be guaranteed at the Accused’s house? [ 52 ] There were police vehicles available outside the house for transporting the Accused. They were not used for the purpose of affording the Accused the ability to consult with a lawyer. There was no evidence given as to why this was not a possibility. But

section 10(

b) of the Charter requires the authorities to provide the means that enable a person who has been detained the right to contact his counsel without delay . [ 53 ] Inasmuch as the Accused was, at this stage, detained, the police should have taken all steps to ensure that he understood his jeopardy. The only means of ensuring this is to facilitate contact with counsel. The passage of some 40 minutes from the time that the house was entered to the time that he was taken into a room to consult with his counsel is inordinate for an investigatory detention.

The more so because counsel could have been easily contacted from one of the police cars – a roadside practice that is commonly undertaken in driving offences. The onus, in this regard, is on the Crown to show why earlier access to counsel was not provided. [ 54 ] I find that the Accused was properly cautioned in his residence and, but for the

section 10(

b) breaches I have outlined earlier, his utterances would be admissible in evidence. [ 55 ] The Accused was being transported to the RNC headquarters for two purposes: to provide him his opportunity to speak to counsel in private and, secondly, to have a conversation with Corporal Noel in accordance with his stated wishes.

In the Accused’s own words: Yeah I’d like to come down and speak with counsel, be proactive in the matter and, ah, speak with yourself about certain things as well. [ 56 ] However, the Accused’s stated wishes were expressed without having had the benefit of any legal advice. [ 57 ] I find that the Accused’s detention became arbitrary by the passage of time when the police, after providing rights to counsel, the police caution and the reasons for the detention embarked, instead, upon an investigation of the ownership of computers, their location, their passwords and so on. His

section 9 Charter rights were breached because the continued detention of the Accused for an invalid purpose (investigation in breach of rights to counsel) transformed his detention into an arbitrary detention not sanctioned by law. 3. Were the accused’s

section 8 rights violated by the breaches of his

section 10(

b) and

section 9 rights coupled with Constable Follett’s declaration that he would “tear the room apart” if information about the location of cannabis was not forthcoming? [ 58 ] Incidental to their search the officers smelled the aroma of marijuana emanating from one of the upstairs bedrooms. This was the bedroom occupied by Bob Somerton. [ 59 ] Bob Somerton had been given his rights to counsel and the police caution. He had indicated that he wished to speak with a lawyer. Before giving him an opportunity to do so, Constable Follett invited Bob Somerton to tell him where the marijuana was located.

Corporal Noel then asked Bob Somerton whether he used marijuana, following which Constable Follett said the following: Look, come on, we’re gonna tear the room apart, just you know what I mean, it it’s up there, you can smell it a mile away, you got papers and stuff in the room right? [ 60 ] Bob Somerton said, “I prefer to say nothing now at the moment”. [ 61 ] For the same reasons that Corporal Noel should have refrained from questioning the Accused, Constable Follett should not have been asking Bob Somerton to incriminate himself when he had not been afforded his rights to counsel. [ 62 ] Bob Somerton’s rights were breached.

However, that has little or no relevance to the charges against the Accused. 4. Whether, because of these alleged breaches and pursuant to section 24(2), the evidence obtained from the the Accused should be excluded? [ 63 ] Counsel for the Accused has requested that all of the evidence gathered be excluded under section 24(2) of the Charter . [ 64 ] Crown counsel takes the position that only the statements made in response to Corporal Noel’s questioning before counsel was contacted should be excluded. [ 65 ] I was referred to the Ontario Court of Appeal’s decision in R. v. Pino , 2016 ONCA 389 .

In that case, the court said, at paragraph 74: The connection between the evidence and the breaches is both temporal and contextual, and is neither too tenuous nor too remote. The connection is temporal because the three breaches are relatively close in time and are part of a continuum straddling Ms. Pino’s arrest. The connection is also “contextual”. I take “contextual” – a word often used by lawyers and judges – to mean pertaining to the surroundings or situation in which something happens. In this case, the something that happened is Ms. Pino’s arrest. And the two s. 10(

b) breaches and the s. 8 breach surrounded her arrest or arose out of it. Indeed, the trial judge found that the s. 10(

b) breaches form “part of the context” in which the s. 8 breach occurred. [ 66 ] The Court of Appeal went on to say that it didn’t matter whether the

section 10(

b) breaches occurred before or after the discovery of the evidence. It was the Court’s opinion that the administration of justice could be brought into disrepute if the court condoned serious Charter violations. [ 67 ] In this case, the violations of the Accused’s rights are also serious. He was detained for a much longer time than would appear to be reasonable in the circumstances before he was afforded his rights to counsel. And he was interrogated, improperly, before he had an opportunity to speak to his counsel. His

section 9 and

section 10(

b) Charter rights were breached.

[68] The breaches occurred within a short period of time, and are part of the continuum straddling the Accused’s detention and hisarrest. The connection between the breaches and the evidence is both temporal and contextual. While the evidence in the case, thecomputer and its contents, are both real and reliable, and the Accused’s utterances and statements could be characterized as inculpatory, Imust nevertheless determine whether their admission is appropriate in all the circumstances. [69] There are three preconditions to the remedy of exclusion under section 24(2): a.

The applicant's rights or freedoms as guaranteed by the Charter must have been unjustifiably limited or denied; b. The evidence must have been obtained in a manner that unjustifiably limited or denied a guaranteed right or freedom; and c. Having regard to all the circumstances, the admission of the evidence in the proceedings must be capable of bringing theadministration of justice into disrepute (R. v. Grant, 2009 SCC 32; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v.Manninen, (SCC), [1987] 1 S.C.R. 1233; R. v. Fliss, 2002 SCC 16). [70] There is no question that the Accused’s rights to counsel were denied.

Crown counsel candidly admitted that the continuedquestioning of the Accused by Corporal Noel amounted to the continuance of an investigation in a manner that breached his rights. Ihave found that the Accused’s

section 9 rights were also breached – both as a result of the time taken by the continued questioning inbreach of the timely exercise of rights to counsel and as a result of the overall time it took before the Accused could be brought to RNCHeadquarters and put in touch with counsel. [71] In R. v. Taylor, 2014 SCC 50, the Supreme Court of Canada stated, at paragraph 28: But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(

b) doesnot create a “right” to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right tocounsel at the first reasonable opportunity. [72] On both these counts, I find that serious mistakes were made in the investigation of this case. [73] There were six individuals resident in the house. In the absence of the direct questioning of the Accused it might have beenproblematic for the police to prove which of those residents had distributed the child pornography that was the subject matter of thecharge.

The improper questioning of the Accused, therefore, is temporally and contextually linked to the pieces of computer hardwareand the information that is contained within them. [74] Much more could have been done to facilitate contact with counsel. There was no need to transport the Accused to the RNC’sheadquarters for that purpose – and particularly so since he was not, at the time, under arrest.

He was merely being detained. [75] After balancing the three Grant factors, I find that it would bring the administration of justice into disrepute if I were to allowany of the evidence gathered by the police to be admitted into evidence. [76] The execution of a search warrant on a person’s home is one of the most intrusive actions that the State can take against itscitizens. The exercise of that extraordinary power must, of necessity, be tempered by the requirement that due process be followed. TheCharter is the supreme law of the land.

A search warrant allowing the police to enter the Accused’s home, roust him out of bed andsearch his residence and his computer equipment is as intrusive a state action as can be imagined, short of searching his person. Itbehooves the authorities, when using this power, to do it properly and in strict compliance with the law. [77] I have no alternative but to order that the Accused’s utterances, statements, the computer hardware and any forensic evidenceobtained from the computer hardware be excluded under section 24(2) of the Charter. _____________________________ Vikas Khaladkar Justice