R. v. Barrett, 2021 NLSC 123

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Barrett , 2021 NLSC 123 Date : October 01, 2021 Docket : 201701G4971 Her Majesty The Queen v. Robin Barrett Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: April 19, 20 & 23, June 2 & 9, 2021

Summary: The Court found that the accused’s

section 10(

b) Charter right to counsel had been breached during the course of the execution of a warrant to search. However, there was no breach of

section 8 of the Charter in respect of the manner in which the police gained entry to the residence of the accused when executing the warrant. The Court also found there had been no breach of

section 10(

b) when a police officer conducted follow up questioning of the accused after he was arrested and had exercised his right to counsel. Further, statements made during that subsequent questioning were held to have been made voluntarily. Appearances: Shawn Patten Appearing on behalf of the Crown

Mark Gruchy Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: Eccles v. Bourque, (SCC), [1975] 2 S.C.R. 739; Semayne’s Case, (1604) 77 ER 194, [1558-1774] All ER KB 62; R v. Penney (2007), (NL PC), 281 Nfld. & P.E.I.R. 127, 863 A.P.R. 127 (N.L. Prov. Ct.); R. v.Robertson, 2016 BCSC 2474; R. v. Truong, 2011 BCSC 1483; R. v. Brown, 2003 BCPC 236; R. v. Cao, 2008 BCSC 139; R. v. Tulk,2015 NLTD(G) 29; R. v. Martin, 2011 NLTD(G) 142; R. v. Cornell, 2010 SCC 31; R. v. Evans, (SCC), [1991] 1 S.C.R.869; R. v. Suberu, 2009 SCC 33; R. v. Grant, 2009 SCC 32; R. v. Soule, 2017 ONCJ 379; R. v.

Sinclair, 2010 SCC 35; R v. Oickle, 2000SCC 38 , [2000] 2 S.C.R. 3; Hobbins v. R. (SCC), [1982] 1 S.C.R. 553; R. v. Rennie, [1982] 1 All ER 385,[1982] 1 WLR 64; R. v. Pepping, 2016 ONCA 809 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part 1 of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] Robin Barrett has been charged with three counts under sections 163.1(3)(a) (as it then was), 163.1(4.1)(

a) and 163.1(4)(

a) ofthe Criminal Code, R.S.C. 1985, c. C-46. These offences relate to the distribution or sale, unlawful accessing of, and unlawfully havingpossession of child pornography. [2] An investigation into these charges began when Cst. Terrence Follett of the Royal Newfoundland Constabulary (“RNC”)received information from the Toronto Child Crimes Unit that Mr. Barrett may be involved in child exploitation offences. [3] Based on this information, the RNC obtained a warrant to search Mr. Barrett’s residence. The warrant was executed on July10, 2015 and multiple materials and devices were seized from Mr.

Barrett’s residence. In the course of that search and seizure, Cst.Follett questioned Mr. Barrett with respect to his involvement in child pornography and Mr. Barrett responded. [4] Mr. Barrett was subsequently arrested and charged with child pornography offences in June, 2016. At that time, he wascautioned and advised of his right to counsel. He exercised his right to remain silent at the time of his arrest. [5] Mr. Barrett was subsequently released from custody. A few months later, Cst. Follett attempted follow-up investigation withMr. Barrett. Mr. Barrett initially agreed to meet with Cst.

Follett but cancelled that meeting as his counsel had advised that he should notprovide a statement. Less than one month later, Cst. Follett made another attempt to do follow up investigation with Mr. Barrett byarriving at his home unannounced. Cst. Follett did not caution Mr. Barrett at the time of this interview and Mr. Barrett answered Cst.Follett’s questions. [6] It is these events that give rise to Mr. Barrett’s application to exclude evidence pursuant to section 24(2) of the CanadianCharter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 onthe basis that his rights under sections 8 and 10(

b) of the Charter were breached. In particular, Mr. Barrett asserts that the manner inwhich the search and seizure was carried out on July 10, 2015, was unreasonable. As well, he alleges that his right to counsel undersection 10(

b) of the Charter was breached on two occasions: firstly, when Cst. Follett questioned him at his home during the search onJuly 10, 2015, and again on September 14, 2016, when Cst. Follett asked him questions at his home. [7] The Crown concedes that Cst. Follett’s questioning of Mr. Barrett during the search and seizure was a violation of Mr.Barrett’s rights under

section 10(

b) of the Charter but denies that the search and seizure itself was unreasonable. The Crown furtherdenies that there was any breach of Mr. Barrett’s

section 10(

b) right to counsel during the questioning on September 14, 2016. [8] The Crown also asserts that Mr. Barrett voluntarily provided statements to Cst. Follett on September 14, 2016, while counselfor Mr. Barrett says the Crown has not proven the voluntariness of the statements beyond a reasonable doubt. [9] These issues relating to the Charter breaches, but not the issue of voluntariness, were the subject of a voir dire in a prior trial inthis matter in 2019.

However, the Newfoundland & Labrador Court of Appeal sent the matter back for a re-trial as counsel were notprovided an opportunity to make submissions on the appropriate remedy under section 24(2) of the Charter. [10] At the start of the voir dire on this re-trial, it was specifically agreed between counsel and the Court that I would provide aruling solely on the issues of whether Mr. Barrett’s rights under sections 8 and 10(

b) of the Charter were breached and whether aSeptember, 2016 statement was made voluntarily. Once this decision is rendered, counsel will be invited to provide submissions withrespect to the appropriate remedy under section 24(2).

issues [ 11 ] Were Mr. Barrett’s rights under

section 8 of the Charter breached as a result of the manner in which the search and seizure of his residence was carried out on July 10, 2015? [ 12 ] Was Mr. Barrett’s right to counsel under

section 10(

b) of the Charter breached when Cst. Follett questioned Mr. Barrett in his home on July 10, 2015? [ 13 ] Was Mr. Barrett’s right to counsel under

section 10(

b) of the Charter breached when Cst. Follett questioned him at his home on September 14, 2016? [ 14 ] Did Mr. Barrett voluntarily make statements to Cst. Follett when he was questioned at his home on September 14, 2016? evidence [ 15 ] Cst. Follett was the lead investigator in this matter as part of the Combined Forces Special Enforcement Unit, Internet Child Exploitation Unit (ICE). Cst. Follett had been with ICE since 2010. As noted above, Cst. Follett’s first involvement in this investigation began when Toronto police advised Cst. Follett they were having online discussions with someone they believed to be Mr.

Barrett. Cst. Follett confirmed for them the residential address for Mr. Barrett. [ 16 ] Toronto police again contacted Cst. Follett in late May and early June 2015 to provide more information on their ongoing investigation. Based on this information, Cst. Follett applied for and obtained a search warrant from a Provincial Court judge authorizing a search of Mr. Barrett’s home at 217 Anchorage Road, Conception Bay South. The warrant authorized a search between the dates of July 6th and July 10th, 2015, and the hours of 7:00 am and 7:00 pm. [ 17 ] Cst.

Follett began to get personnel ready to do this search but, due to scheduling conflicts, he was not able to find enough officers from ICE to assist. He was eventually able to assemble a team, including ICE members and officers from another unit within CFSEU, to execute the warrant on July 10, 2015. [ 18 ] Early on the morning of July 10, 2015, two officers carried out surveillance of Mr. Barrett’s home. They reported back to Cst. Follett that Mr. Barrett had left his residence early in the morning but had not yet returned. [ 19 ] At 8:00 am that morning, Constable Follett assembled the team for a briefing.

The meeting was attended by Sgt. Lisa Harris (RNC, ICE), Cst. Follett, Brenda McGuire (RCMP, CFSEU drug unit), Sgt. Chris Hussey (RNC, CFSEU drug unit), Trina Rideout, (RCMP, ICE), and two civilian forensic members, Dean Boyer and Elizabeth Carew. [ 20 ] The purpose of the briefing was to review the warrant and generally discuss the manner in which it would be executed. Cst. Follett advised the team that Mr. Barrett was the only known occupant of the residence. No one else was expected to be in the home. He also gave an overview of the residence, describing it as an above ground bungalow with a long driveway.

The primary entrance was a side door. [ 21 ] Cst. Follett would have provided the team with copies of the warrant and discussed the type of investigation and generally what they were searching for. He also advised the team of Mr. Barrett’s criminal record for child exploitation offences. Sgt. Harris and Cst. Follett both testified that, from their training, they were aware that a person facing incarceration for a second time may feel a heightened sense of personal jeopardy. [ 22 ] There was also discussion that there were no specific concerns of violence or presence of firearms. However, Sgt. Harris, Cst.

Follett and Dean Boyer all testified that the team discussed a concern that electronic evidence may be fairly easily destroyed or disposed of. As such, it was important for the team to get in quickly. [ 23 ] It was agreed that the plan for entry was to knock at the door, and if the door was not answered or if there was a delay in answering, there would be a forced entry through the use of a battering ram. Sgt. Harris said it was general practice to take a battering ram on such search warrants but it may or may not be used. [ 24 ] After the briefing, all team members proceeded to Mr.

Barrett’s home and parked in the driveway. Cst. Follett, Sgt. Harris and Sgt. Hussey proceeded to the main side door of the residence at approximately 8:47 am. Cst. Follett and Sgt. Hussey were side by side at the door with Sgt. Harris behind and in the center of them. This gave her a view into the home through the half window in the door. [ 25 ] Cst. Follett said he knocked at the door with a hammer fist three to four times and then announced police presence and that they had a search warrant. He said he was speaking loudly, almost yelling.

He waited to see if someone would come to the door and checked the door knob, confirming that the door was locked. He says he knocked again three to four times before instructing Sgt. Hussey to use the battering ram. The battering ram is made of steel and weighs approximately 30-40 pounds. Cst. Follett estimated that approximately 30 seconds to 1 minute lapsed from the time he arrived at the door until Sgt. Hussey used the battering ram. Once Sgt. Hussey used the battering ram, the door opened. [ 26 ] The evidence of Sgt. Harris was that Cst.

Follett knocked loudly seven to eight times when they arrived at the door. She did not recall anyone announcing police presence but that is not something that she would have paid attention to as it is a repetitive step when executing a search warrant. She estimated that between 10 and 15 seconds passed before Cst. Follett looked to Cst. Hussey and indicated he should use the ram. [ 27 ] Meanwhile, Cst. Hussey said that Cst. Follett knocked several times but he could not say if the knocks were in succession. He estimated they waited 1.5 – 2 minutes before Cst. Follett gave him the go ahead to use the ram.

When cross-examined on the time that lapsed before the battering ram was used, Cst. Hussey was adamant that the wait at the door was longer than 30 seconds.

[ 28 ] Sgt. Harris says she was looking through the door opening immediately after the door was breached. The side door led into a kitchen area beyond which there was a dining room area. From her angle, Sgt. Harris said she could see that a french door was open from the dining room to the hallway and she could see part way down the hallway. She saw Mr. Barrett walking from the back hallway towards that french door, wearing only a bath robe and underwear. [ 29 ] Sgt. Harris said that Mr. Barrett had not yet reached the door frame of the french door when the door was breached and he stopped.

She formed the impression that he was proceeding from the end of the hallway rather than making a sharp turn in the hallway from the master bedroom door next to the dining room french door. [ 30 ] Cst. Follett was the first officer to enter the home. He said he saw Mr. Barrett standing in the hallway, to the left of the french door that led into the dining room area. Cst. Follett was questioned about differences in the answers he had given to similar questions during the first trial of this matter. In that trial, Cst. Follett, in response to a question from the original trial judge, had indicated that Mr.

Barrett was standing between a chair in the kitchen close to the dining room entrance and near the french door leading from the dining room into the hallway. Cst. Follett explained that would have referred to the entire combined kitchen/dining area as one open kitchen area. [ 31 ] He had also told the original trial judge that Mr. Barrett was not in the hallway because he would not have been able to see him if he had been there. On cross-examination, he said he had misunderstood the judge's question and what he meant to say was that he was not able to see all the way to the end of the hallway.

However, he was able to see the area of hallway just outside the door frame of the french door. [ 32 ] For his part, Cst. Hussey had backed away from the entrance after using the battering ram and was the last to enter. As such, Cst. Follett was already speaking to Mr. Barrett when Cst. Hussey saw him for the first time. [ 33 ] The accused, Mr. Barrett, testified that he was at the computer in the computer room/spare bedroom at the end of the hallway when he heard a knock on the door. He says he heard no voices other than a knock.

As he was not sure whether the knock was coming from the front door or the side door off the kitchen, he stood up and looked out the window in the computer room. As he could not see a car near the front door, he assumed that the knock came from the side door. [ 34 ] Mr. Barrett said he proceeded from the computer room to answer the side door and was in the dining room when the door was smashed in. While Mr. Barrett acknowledged that the home is very small, approximately 900 square feet at each level, he said it took him between ten and fifteen seconds to get up, look out the window and walk to the dining room.

He said that he froze when the door broke in, describing himself as feeling shocked and overwhelmed. [ 35 ] Cst. Follett then walked directly to Mr. Barrett and brought him into the living room area where they sat down and read over the warrant. At 8:51 am, Cst. Follett said he told Mr. Barrett that he was under investigative detention. He gave him a caution and read him his rights. Cst. Follett said that Mr. Barrett told him he understood his rights and that he wished to contact a lawyer. [ 36 ] As Mr. Barrett was still in a bathrobe, Cst. Follett brought him to the master bedroom to change into clothes. Mr.

Barrett said he felt vulnerable as Cst. Follett stayed at the door while Mr. Barrett got dressed. [ 37 ] Cst. Follett said that Mr. Barrett let out a large sigh and looked defeated as his shoulders dropped. Cst. Follett said that he therefore thought Mr. Barrett wanted to talk. In the heat of the moment, he proceeded to question Mr. Barrett about how long he had been downloading child pornography and where he had served time on prior charges. Mr. Barrett responded to these questions, testifying that he felt overwhelmed and thought he had to answer the questions. Cst.

Follett acknowledged that this questioning was in breach of Mr. Barrett's

section 10 (

b) rights. [ 38 ] After this exchange, Cst. Follett escorted Mr. Barrett to a police car where he was given the opportunity to phone legal aid on a cell phone. After Mr. Barrett finished speaking to a lawyer, Cst. Follett and Mr. Barrett went back into the house. [ 39 ] While Cst. Follett was dealing with Mr. Barrett, the other officers secured the residence and ensured no other persons were present. Cst. Hussey’s notes indicate that five minutes lapsed between the time the police initially arrived and the home was secured. [ 40 ] Once the premises were secured, the civilian technicians entered.

They set up a work station in the kitchen and were responsible for determining whether items identified by the searching officers had forensic value. [ 41 ] One of these civilian technical members was Dean Boyer who was employed as a digital forensic examiner by the Government of Canada, working with the RCMP. As he was involved in executing the search warrant, he testified as a fact witness. I also qualified him as an expert in the areas of forensic methodology, data

interpretation, internet evidence analysis and cell phone seizure analysis. [ 42 ] Mr. Boyer was able to provide expert evidence on how information is stored on computers and on various electronic devices, how that information can be altered or destroyed and how, if at all, that information can be retrieved once it has been altered. He was also able to provide insight into various types of electronic devices typically used in child pornography cases. [ 43 ] He confirmed that he and the other forensic examiner, Ms. Carew, entered the residence at 9:09 am. Ms.

Carew went to the small back bedroom/computer room and took photos. In the meantime, Mr. Boyer and Mitch Keeping, whom he was mentoring from the RNC, set up a table and chair out of the way and got ready to triage the exhibits. [ 44 ] The search team were each assigned search areas within the home but would assist each other if requested. Cst. Hussey testified that he searched the back bedroom/computer room at the end of the hallway. He recalled there was a computer in the room and the images on it appeared to be from a chat site.

There were also were numerous USBs on the shelves as well as floppy disks and a camera with a SD card. There was a silver hard drive on the bed in a box containing child pornography. Another disk was found in a black plastic storage container. Cst. Hussey labelled what he found.

[ 45 ] While Cst. Follett did not take

part in the clearing process or search, he did enter various rooms in the home, including the small bedroom/computer room. He saw what appeared to be evidence of video chatting. There were folders on the computer screen, some of which contained the names of children. He felt this validated there was evidence to support their investigation. [ 46 ] During the search, a number of items were brought to the forensic team for triage. It was Sgt. Harris who acted as exhibit custodian and also took photographs of the interior and exterior of the premises as well as the entry areas. When the search was completed, Sgt.

Harris turned the exhibits over to the technical team. [ 47 ] Mr. Boyer described the initial forensic triage examination on site as consisting of a cursory search of items for specific keywords or information that may indicate whether child sexual exploitation material was present. If so, the exhibit would be seized for later analysis. [ 48 ] Based upon this initial examination, various items were seized from the residence, including electronic equipment such as a laptop, cell phone, desktop computer and digital camera.

As well, electronic storage devices were seized, including USBs, floppy disks, VHS tapes, SD cards, and compact discs. [ 49 ] After the search and triage was complete, the officers left Mr. Barrett in the living room of this home. They did not arrest him at that time. [ 50 ] Cst. Follett did not have much involvement with the investigation until the technical crime unit members completed their investigation. While this process usually takes away from a day to six months, Mr. Boyer said it took 11 months in this case due to the volume of exhibits seized.

He had to take bit for bit images of the items seized and provide them to Cst. Follett on a hard drive. Cst. Follett then went through the photos and videos and categorized them. This categorization process began on January 26, 2016 and was completed by February 8, 2016. [ 51 ] Cst. Follett returned the hard drive and his categorization to the technical crime unit member who completed a report. That report was eventually completed on June 21, 2016, and the Information was sworn 9 days later on June 30, 2016. [ 52 ] Cst. Follett telephoned Mr.

Barrett on June 29, 2016, and asked him to come into RNC Headquarters at 9:00 am the next day. When Mr. Barrett arrived at RNC Headquarters, he was arrested. He was read his rights and caution and was provided with telephone numbers for legal aid. Mr. Barrett said he understood his rights and did not wish to phone a lawyer at that time as he had a meeting with a lawyer scheduled for the following week. [ 53 ] Cst. Follett acknowledged that he attempted to elicit information from Mr. Barrett on June 30, 2016. In particular, he asked him about statements he had made to Cst.

Follett when he was detained on July 10, 2015. Mr. Barrett did not respond other than to indicate that his lawyer had cautioned him not to say anything. Cst. Follett describe this questioning as part of the normal interviewing process. [ 54 ] Cst. Follett's next encounter with Mr. Barrett was when he phoned him on August 19, 2016, to ask Mr. Barrett information about whether he had a roommate. Cst. Follett made this phone call as former Crown counsel asked him to follow up, advising that he had obtained information from counsel for the accused that someone else may have been living at 217 Anchorage Road. Cst.

Follett made arrangements for Mr. Barrett to come in and speak to him the next day. However, Mr. Barrett spoke subsequently left a voicemail message for Cst. Follett advising that, on the advice of counsel, he was not going to speak with him on that matter. [ 55 ] Former Crown counsel followed up with Cst. Follett again some weeks later. He asked Cst. Follett to follow up with Mr. Barrett to determine whether he could provide information on the alleged roommate. The Crown objected to counsel for the accused asking Cst.

Follett questions about his conversations with Crown counsel on the basis that such discussions are privileged. However, after adjourning to file briefs and make submissions on this issue, the RNC instructed the Crown they were waiving any privilege that may have attached to such communications. [ 56 ] When the trial resumed, Cst. Follett testified that he had made some objections to former Crown counsel as Cst. Follett did not see the need to follow up on the presence of a roommate. He felt that Mr. Barrett was the only one involved in the child pornography.

He was also concerned about seeking another interview after Mr. Barrett had said he did not wish to speak with the police. However, former Crown counsel said it was in the interest of the investigation to cover off the potential presence of a roommate in case it became an issue at trial. [ 57 ] Cst. Follett therefore went unannounced to Mr. Barrett’s home on the morning of September 14, 2016. He was in plain clothes and in an unmarked car. As per standard practice, he was carrying a side arm and his badge. He made a regular knock at the door. After Mr.

Barrett answered the door, he came outside on the patio and closed the door behind him to speak to Cst. Follett. [ 58 ] Cst. Follett did not caution Mr. Barrett at this time. Cst. Follett said he had had no discussion with the Crown on this issue but made a decision not to reread Mr. Barrett his rights as Mr. Barrett was not under detention. He was also of the view that Mr. Barrett's jeopardy had not changed as he was only speaking with him about the offences with which he had already been charged. He was merely attempting to determine whether anybody else was involved. [ 59 ] Cst.

Follett says he was approximately 5 feet away from Mr. Barrett while he speaking with him. When Cst. Follett asked Mr. Barrett whether another individual had lived in the home, Mr. Barrett responded to the question. Cst. Follett further asked Mr. Barrett whether there was any other information that could assist in the investigation that might clear Mr. Barrett. Mr. Barrett advised that there was not. [ 60 ] Cst. Follett said that he did not feel that he was any way intimidating towards Mr. Barrett. He said that Mr.

Barrett seemed comfortable speaking with him and was at all times compliant and polite. [ 61 ] On the other hand, Mr. Barrett described himself as feeling frustrated that day as he was being asked to respond to questions that he had previously indicated he would not answer. He said he felt a sense of obligation to answer as Cst. Follett was a police officer

and he assumed he had the authority to question him. [62] Further, while Mr. Barrett could not remember the exact words Cst. Follett used, he was left with the impression from Cst.Follett that answering these questions could help Mr. Barrett's case. However, Cst. Follett said that at no time were any threats orpromises made to Mr. Barrett. [63] After the conversation on the patio, Cst. Follett went to his vehicle and made notes of this conversation. Mr. Barrett thenapproached his vehicle and asked Cst. Follett questions about how he would file a sexual offender registry document.

He furthercommented that he was surprised that his name had been in the media after his bail hearing. law & analysis 1. Unreasonable Search & Seizure – July 10, 2015 [64]

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. Mr. Barrettdoes not allege that the search was unlawfully authorized but rather that it was unreasonably carried out. In particular, he asserts that hisrights were breached as a result of the unreasonable execution of the warrant when the police failed to properly observe the knock andannounce rule and by virtue of Mr. Barrett’s door being rammed in. [65] Mr.

Barrett’s primary submission is that the RNC unreasonably executed the search warrant by violating what is known as the“knock and announce” rule. The requirement for police to make an announcement prior to entering a residence is a long established common law rule, going back to the outdated 16th century England maxim that “a man’s house is his castle”. [66] In the 1974 Supreme Court of Canada decision in Eccles v. Bourque, (SCC), [1975] 2 S.C.R. 739, the courtrelied upon a 1604 English common law decision in Semayne’s Case, (1604) 77 E.R. 194, [1558-1771] All ER KB 62 as authority for theknock and announce rule.

The court noted the compelling considerations for this rule. In particular, it was noted that an unexpectedintrusion upon a person’s property could give rise to violent incidents. [67] As noted at paragraph 9 of Eccles v. Bourque, in the ordinary case police officers, before enforcing entry, should give: (

i) notice of presence by knocking or ringing doorbells; (ii) notice of authority by identifying themselves as law enforcement officers; and (iii) notice of purpose, by stating a lawful reason for entry. Other than in exigent circumstances, there should be a minimal requirement that police request admission and have admission denied. [68] What constitutes exigent circumstances was considered in the Newfoundland and Labrador Provincial Court decision of JudgeKennedy in R v. Penney (2007), (NL PC), 281 Nfld. & P.E.I.R. 127, 863 A.P.R. 127 (N.L. Prov. Ct.).

At paragraph46, the court noted that police may execute a search warrant without knocking and announcing their presence if they are aware of theexistence of facts to support the reasonable conclusion that: 1. the evidence inside the residence may be destroyed or removed; 2. the accused, or someone inside the residence, is known to be a violent person or weapons are suspected to be present; 3. the occupants may attempt to escape; 4. some resident is in immediate danger or an ongoing crime involving harm, is occurring; 5. in spite of the information, the police are not sure of 2. [69] In such an exigent circumstance, police may be entitled to use what is known as a “dynamic entry”.

However, where police donot have grounds for a dynamic entry, the police must allow sufficient time for a resident to come to the door and open it after the knockis made by police. [70] As stated by Judge Kennedy at paragraph 50 of Penney, a wait of only a few seconds before entry after a knock is notreasonable. Occupants must be given sufficient time to realize what is happening and to understand and appreciate the police are at thedoor and intend to enter. Providing insufficient time before forcing entry could be seen as a breach of the accused’s right to be free fromunreasonable search under

Section 8 of the Charter. [71] At paragraph 29 of R. v. Robertson, 2016 BCSC 2474, the court similarly noted that the knock and announce rule requires thatoccupants have enough time to absorb that the police are at the door, take safety actions such as putting down remote controls, and thenanswer the door. The time required will vary depending on the circumstances, including the time of day and the size and configurationof the home.

[ 72 ] Counsel for the accused has provided case law suggesting that it is insufficient to wait only ten to fifteen seconds or even as much as thirty seconds before using a battering ram to enter the premises. On the other hand, the Crown has referred to cases from this jurisdiction in which shorter waits between the knock at the door and forced entry were held to be reasonable in the circumstances. [ 73 ] In Robertson , while recognizing there is no hard and fast rule for the length of time police should wait, the court found that 27 seconds was insufficient.

However, it is notable that in Robertson , the police waited at the garage door rather the door normally used. As such, a longer time would have been needed for an occupant to walk through the house and out into the garage to reach the door where the police were waiting. Further, the forced entry occurred just four seconds after the first time an RCMP officer could be heard shouting "search warrant". [ 74 ] In the British Columbia Supreme Court case of R. v. Truong , 2011 BCSC 1483 , Justice Smith also recognized there is no magic period of time after which forced entry is deemed reasonable.

However, he determined that a wait of at most 45 seconds and possibly less was insufficient to allow the occupants to answer the door to this two-storey home. [ 75 ] In the British Columbia Provincial Court case R. v. Brown , 2003 BCPC 236 , the court found that a wait of 20 seconds between the first knock on the door through to the battering of the door failed to provide the occupants with a reasonable amount of time to open the door voluntarily.

While the decision does not give much detail about the nature of the residence, it also appears to have been a two- story home. [ 76 ] In another case from British Columbia, R. v. Cao , 2008 BCSC 139 , between one and two minutes had elapsed between the time of the knock and announce at the front door and entry through the garage door. In that case, the house was a two-story residence with a basement crawl space. At paragraph 31, Justice Bruce noted that, in most cases, one or two minutes would clearly be sufficient time for an occupant to respond to a demand for entry.

However, the police had knocked at the front door but then accessed the premises by breaching an inside door in the basement leading to the garage. At paragraph 35, Justice Bruce also found that aggravating this violation of

section 8 of the Charter was the fact that police had drawn weapons in the ready position. [ 77 ] As noted above, the Crown has referred me to cases from this jurisdiction in which relatively short wait times have been held to be permissible. One such case is R. v. Tulk , 2015 NLTD(G) 29, in which Justice Paquette was asked to consider forced entries by officers after knocking and announcing at two different residences.

She accepted that the knock and announce rule was not breached in respect of one of the residences but the decision does not identify how long it was between the knock on the door and the use of a battering ram. In respect of the second residence, she noted that the officers waited ten to fifteen seconds after knocking before using the ram to open the door.

While the decision identifies the length of the wait at the door, Justice Paquette did not need to address the issue of whether this was a sufficient period of time to wait as the search was executed when the police officers did not have the warrant in their possession. That fact alone established a breach of

section 8 of the Charter . [ 78 ] Another case from this jurisdiction is R. v. Martin , 2011 NLTD(G) 142, in which two officers were knocking and advising of police presence at the front door while another group of officers were let in the back door of the residence by an occupant. While there is no specific finding regarding the size of the home, a review of the evidence indicates that it appears to have been a two-story home.

In those circumstances, Justice Marshall found that a wait of 15 to 20 seconds from the knock to the breach of the door was an acceptable time frame to knock and announce. [ 79 ] However, it is notable that while Justice Marshall found that relatively short wait to be sufficient, it is evident that she recognized there was some fluidity to the situation.

At paragraph 139, she specifically accepted the evidence of the officer who kicked in the front door that she was concerned for the safety of her fellow officers who were entering from the back door. [ 80 ] It would be impossible to predict how events will unfold when executing a search warrant and officers must be able to adjust their approach on a reasonable time to wait as circumstances unfold. However, if police depart from the knock and announce rule, the onus is on them to explain why they believed it was necessary to do so.

Police cannot simply choose a "middle ground" between the use of the knock and announce rule and dynamic entry. [ 81 ] At paragraph 28 of the British Columbia Supreme Court decision in Robertson , Justice Watchuk quoted from the Supreme Court of Canada decision in R. v. Cornell , 2010 SCC 31 , at paragraph 20 , as follows: If challenged, the Crown must lay an evidentiary framework to support the conclusion that the police had reasonable grounds to be concerned about the possibility of harm to themselves or occupants, or about the destruction of evidence.

The greater the departure from the principles of announced entry, the heavier the onus on the police to justify their approach. The evidence to justify such behaviour must be apparent in the record and available to the police at the time they acted. [ 82 ] At paragraph 34 of Robertson , the court also noted that judges will be influenced by the information the police had and whether they were dealing with a fluid situation. For example, in Robertson , the police were aware there may be weapons in the residence being searched during a drug trafficking investigation.

Nevertheless they made an advance plan to execute the warrant by effecting a knock and announce entry. However, when the police arrived at the door, they did not allow the occupants a reasonable time to answer. No events had occurred after police arrived and during the time they were at the door which would have changed their advance estimation of the amount of force or urgency that would be required for their entry.

As a result, the Crown had not established an evidentiary basis to justify the divergence from the knock and announce rule. [ 83 ] In the circumstances before me, the Crown adduced a fair amount of testimony from Dean Boyer and officers in the ICE unit with respect to the means by which digital child exploitation material can be altered or destroyed, suggesting that the team needs to get quick access to the residence. [ 84 ] In particular, floppy discs and CDs can be broken in half and there may be no way to recover the data. As well, USBs can be physically snapped or smashed.

However, those specializing in circuit board repair can repair the data. [ 85 ] In respect of data on a computer, a user can delete data by sending it to the recycling bin and take the second step of emptying

the recycling bin. However, even in that case, the data may still be accessible if it has not been overwritten by new data. This process of permanently deleting data can take some time. [ 86 ] Mr. Boyer also gave evidence as to eraser software that can be purchased to delete data and overwrite it more easily. However, he acknowledged that, even when overwritten, forensic investigators may still be able to access all or parts of photos or videos.

Overall, it is a challenging task for a user to get rid of data to the point where it cannot be forensically retrieved. [ 87 ] However, what is most notable is that the risk of destruction of digital and electronic evidence was known to and discussed by the team during their morning briefing. At that time, the decision was evidently made that the risk of destruction of evidence did not warrant a departure from the knock and announce rule.

In fact, there was never a suggestion that the team should do a dynamic entry. [ 88 ] As indicated in Robertson , the police will not be able to justify a departure from the knock and announce rule by relying on circumstances or risks that were known to them at the time they made a decision to knock and announce, unless those circumstances have changed.

In this instance, the police had no information when they were at the door that would indicate an increased risk of destruction of evidence than the information they had at the 8:00 am briefing. [ 89 ] As such, the police were obligated to give effect to the knock and announce rule, rather than choose a middle ground.

The questions then to be considered are: what amount of time actually elapsed between the first knock at the door and the use of the battering ram; and, was that a reasonable time to wait in these circumstances? [ 90 ] I have heard differing estimates of time from the three officers who were at the door and from Mr. Barrett who was inside the residence. Sgt. Harris felt that 10 to 15 seconds had passed after the knocking at the door until the direction was given to use the battering ram. However, the evidence of Sgt. Harris was that Cst.

Follett forcefully knocked at the door seven to eight times and would have then announced police presence. In respect of the announcement of police presence, while Sgt. Harris did not specifically recollect that and Mr. Barrett did not either, Sgt. Harris accepted that Cst. Follett would have done so as that is standard practice and the evidence of the other officers supports that. The time to take those actions would need to be added to her estimate. Mr. Barrett's estimate was close to that of Sgt. Harris. [ 91 ] Cst.

Follett’s estimate was between 30 seconds and one minute from the time he arrived and knocked at the door until the ram was used. Cst. Hussey’s estimate was between 1.5 and 2 minutes. He acknowledged on cross-examination it may have been less time but the wait was at least thirty seconds. [ 92 ] It is not unusual in trials, especially when a significant period of time had elapsed, that witnesses will be unable to be precise about time.

In fact, a review of the case law presented by counsel demonstrates how divergent otherwise credible witnesses can be in estimating time in seconds or minutes. [ 93 ] However, as there was no video record of the entry, I must decide which estimate of time is the most credible and reliable based on the evidence before me. In determining this issue, I must consider that it was Cst. Follett who was the lead investigator and the one responsible for carrying out the knock and announce. Further, it was Cst.

Hussey who actually used the battering ram and had many occasions to use it previously as a member of the drug unit. As at July 2015, both of those officers had years of experience in executing knock and announce warrants. While Sgt. Harris had a good recollection of the events, her role was not to effect the knock and announce and she had little, if any, prior experience involving a forced entry with a battering ram. As for Mr.

Barrett, it would be unusual for him to have focused on timing as the police came unannounced. [ 94 ] Where there is some inconsistency in the evidence on the estimates of time, I find the evidence of Constables Follett and Hussey, who were more focused on the manner of the entry, to be more reliable. I therefore find there was a minimum time lapse of thirty seconds from the first knock to the use of the battering ram. [ 95 ] As to whether that was a reasonable amount of time to wait in this case, I must consider all the surrounding circumstances. One of these is the time of day.

The officers arrived just before 9:00 am rather than late at night when police may need to allow more time for an occupant to get out of bed. [ 96 ] I must also consider the size and configuration of the residence. The house was a very small bungalow measuring approximately 900 square feet on the main floor. Further, the officers were knocking at the primary entrance on the floor where the main living areas were located. [ 97 ] With respect to Mr. Barrett’s circumstances, while not a young person, there was no indication that Mr.

Barrett had any physical limitations that would impede his ability to answer the door in a reasonable period of time. [ 98 ] I recognize that there is case law from other jurisdictions in which waits of anywhere between 20 seconds and a minute have been held to be insufficient but these were all decided on their specific circumstances, including the size of the home and the location of the door from which entry was sought. [ 99 ] In the circumstances before me, I find that a lapse of thirty seconds from the first knock to forced entry is a reasonable period of time in which to allow an occupant to realize police are present, take any safety actions and then answer the door. [ 100 ] With respect to the use of a battering ram to gain entry, I was not presented with any cases in which the use of a battering ram, on its own, was found to amount to an unreasonable execution of a warrant to search.

I find that the use of this manner of entry in these circumstances was not unreasonable after the occupant was allowed sufficient time to answer the door. [ 101 ] I therefore find that the accused has failed to establish on a balance of probabilities that Mr. Barrett’s rights under

section 8 of the Charter were violated by the manner in which the warrant was executed on July 10, 2015.

Section 10(b) – July 10, 2015 [102] With respect to the alleged violation of Mr. Barrett’s rights under

section 10(

b) of the Charter, as noted at the outset of thisdecision, the Crown has acknowledged that Mr. Barrett’s rights were violated when Cst. Follett questioned him in his home on July 10,2015. While I am not necessarily bound by this acknowledgement, the evidence lead on this application clearly establishes that breachon a balance of probabilities. [103]

Section 10 (

b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel withoutdelay and to be informed of that right. Mr. Barrett was clearly detained. In fact, Cst. Follett testified that he advised Mr. Barrett he wasunder investigative detention. Cst. Follett then advised Mr. Barrett that he has a right to retain and instruct counsel and Mr. Barrettconfirmed that he wished to exercise that right. [104] However, the Supreme Court of Canada decision in R. v.

Evans, (SCC), [1991] 1 S.C.R. 869 confirms that theduty to inform a detained person of his or her right to counsel also encompasses the duty to refrain from eliciting evidence from thedetainee until the detainee has a reasonable opportunity to retain and instruct counsel. [105] Cst. Follett was therefore obligated to ensure Mr. Barrett had the opportunity to exercise his right to speak to counsel beforeproceeding to question him. While Cst. Follett may have interpreted Mr. Barrett’s gestures as an indication that he wanted to talk, at notime did Mr. Barrett waive his right to speak to counsel.

Section 10(b) – September 14, 2016 [106] There is no dispute that Mr. Barrett was properly cautioned on his right to seek counsel when he was arrested. However, counselfor the accused submits that Mr. Barrett’s

section 10(

b) rights were breached as a result of Cst. Follett failing to re-caution Mr. Barrettwhen he questioned him on September 14, 2016. He says Mr. Barrett ought to have been advised again of his right to counsel becausehe was effectively being detained. [107] The Supreme Court of Canada dealt with the issue of whether questioning of an accused could amount to a detention in R. v.Suberu, 2009 SCC 33. At paragraph 25, McLaughlin, CJ repeats the court's

summary from R. v. Grant, 2009 SCC 32 at paragraph 44, asto when a person may be considered detained under sections 9 and 10 of the Charter: 25 For convenience, we repeat the

summary set out in Grant at para. 44: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significantphysical or psychological restraint. Psychological detention is established either where the individual has a legal obligation tocomply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she hadno choice but to comply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

Todetermine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by thestate of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by theindividual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place wherethe interaction occurred; the presence of others; the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physicalstature; minority status; level of sophistication. [108] Counsel for the accused says that the circumstances of the questioning on September 14, 2016 amounted to a psychologicaldetention. A reasonable person in Mr. Barrett's position would conclude, by reason of Cst. Follett's conduct, that he had no choice but tocomply with Cst.

Follett's request that he provide information regarding the roommate. [109] With respect to the first factor outlined at subparagraph 2 of paragraph 44 of Grant, above, counsel for the accused submits thereis no doubt that a reasonable person in Mr. Barrett's position would conclude that he was being singled out for focused investigation.

Infact, he had already been arrested on child pornography charges less than three months earlier and the questions were in respect of afollow up investigation on those same charges. [110] With respect to the second factor, the nature of the police conduct, counsel for the accused asks this Court to look at the totality ofCst. Follett's conduct from the time of the search and seizure on July 10, 2015 to September 14, 2016, including the following:

(

i) Cst. Follett was the officer who gave instructions to use the battering ram at Mr. Barrett's premises very quickly after knocking at his door; (ii) Cst. Follett was the officer who questioned Mr. Barrett while he was in a half-dressed state and in breach of his

section 10(

b) rights; (iii) Cst. Follett continued to seek a statement from Mr. Barrett when he was arrested, asking him questions about statements he previously made on July 10, 2015, when his Charter rights were breached; (iv) Despite the fact that Mr. Barrett left a message with Cst. Follett in August 2016 advising that he had been advised by counsel not to speak with the police, Cst. Follett relentlessly continued in his attempts to obtain a statement by showing up at Mr. Barrett's home without prior notification; (

v) The request for a statement occurred at the very place where the prior Charter breach had taken place and nobody else was present; and (vi) Even if directed to do so by Crown counsel, Cst. Follett ought to have known to give a caution to Mr. Barrett before asking him questions. [ 111 ] With respect to the third factor, the particular characteristics or circumstances of Mr. Barrett, counsel for the accused acknowledges that Mr. Barrett would not be considered elderly but is somewhat of an advanced age (64 years of age). It was evident from seeing him in Court that Mr. Barrett is of a relatively small stature.

Most notably, it was evident throughout all of Mr. Barrett's dealings' with Cst. Follett that Mr. Barrett was a very compliant individual. [ 112 ] On the other hand, the Crown denies that Mr. Barrett was psychologically detained on September 14, 2016. Mr. Barrett was aware he did not need to speak to Cst. Follett, as evidenced by his voicemail to Cst. Follett a month earlier. His own evidence was that he was annoyed and frustrated that Cst. Follett had appeared at his door unannounced.

He may have been delayed at his door but he was not detained. [ 113 ] Having considered the factors in Grant , in the circumstances before me. I find that the accused has not proven on a balance of probabilities that he was psychologically detained when he was questioned on September 14, 2016. [ 114 ] While Mr. Barrett would clearly conclude that he was being singled out for focused investigation on these child pornography charges, he had already been arrested on those same charges and was released.

More will be said of the potential requirement to recaution later in this decision. [ 115 ] Further, I have considered the totality of the police conduct and the particular circumstances of Mr. Barrett and find that a reasonable person in Mr. Barrett’s circumstances would not conclude that he had been deprived of the liberty of choice. [ 116 ] With respect to the police conduct, the evidence indicates that Cst. Follett spoke in normal tone of voice and was not threatening or otherwise abusive towards Mr. Barrett.

He was several feet away from him during the conversation that took place in the open. [ 117 ] It is true that Cst. Follett is the same officer who had previously questioned Mr. Barrett in breach of his

section 10(

b) rights in his home while he was getting dressed. However, when Mr. Barrett was arrested in June 2016, he was cautioned and availed of his right to remain silent when questioned on that date. The police have a right to ask questions and there is no evidence that the questioning was incessant. Further, the police have the right to continue to investigate after charges are laid and new information is discovered. This right to continue to investigate after an accused has been cautioned encompasses the right to seek further information.

It is up to the accused to exercise their free will and decide if they wish to consult counsel or wish to answer, even if that is against the advice of their counsel. [ 118 ] Mr. Barrett is not an unsophisticated person, having formerly been an Anglican priest. While he is somewhat small in stature, there is not a significant difference in size between him and Cst. Follett. As well, while he could be described as a polite and compliant individual, he was clearly aware from a prior discussion with counsel that he did not need to speak to Cst.

Follett on the issue of the roommate and had been able to communicate that by cancelling a previously scheduled meeting. [ 119 ] Cst. Follett did give evidence that, if Mr. Barrett had proceeded with an interview at the station in August of 2016, Cst. Follett would have re-cautioned Mr. Barrett. However, that does not mean that he was obligated at law to do so. [ 120 ] In the Ontario Superior Court Justice decision in R. v. Soule , 2017 ONCJ 379 the court noted that Charter rights are not grounded in an officer's subjective belief but are triggered by the specific circumstances in any given case.

In particular, at paragraphs 34 and 37, the court noted that police officers do not confer rights and, further, the conduct of a police officer cannot create a right that does not otherwise exist. In that case, the accused objected to the manner in which the officer had advised the accused of his right to counsel. However, as the officer had not been required to caution the accused, there was no Charter violation. There could be no breach of an alleged right which did not exist in the first place. [ 121 ] For its part, the Crown denies there was any obligation on Cst. Follett to re-caution Mr. Barrett.

In the Supreme Court of Canada decision in R. v. Sinclair , 2010 SCC 35 , at paragraph 47 , the court directs that

section 10(

b) should be interpreted in a way that fully respects its purpose, ie., supporting a detainee's

section 7 right to choose whether or not to cooperate with a police investigation. In the normal course, this is achieved by a single consultation at the time of the detention or shortly thereafter. The person detained then has the information needed to make a meaningful choice as to whether to cooperate or decline to do so. [ 122 ] The Crown does concede that developments may occur that require a further consultation. At paragraph 48 of Sinclair , the court notes there may be new or newly revealed circumstances that may make the initial advice no longer adequate.

At paragraph 49, the court noted categories that could indicate a need to re-caution. While the following categories are not closed, additions to them should be

developed only where necessary to ensure the purpose of

section 10(

b) is achieved. (

i) New procedures involving the detainee (e.g. non-routine procedures such as participation in a lineup orsubmitting to a polygraph); (ii) Change in jeopardy (e.g. if the investigation takes a new and more serious turn as events unfold); (iii) If there is reason to question the detainee's understanding of the

section 10(

b) right. [123] This is also noted at paragraph 43 of Evans, in which the Supreme Court of Canada held that the police must re-state theaccused's right to counsel when there is a fundamental and discreet change in the purpose of the investigation, one involving a differentand unrelated offence or a significantly more serious offence than that contemplated at the time of the warning. [124] However, in this case, Mr. Barrett was not asked to take

part in a new and different kind of procedure. Further, his jeopardy hadnot changed since he was arrested on the charges in June 2016. Cst. Follett was entitled to follow-up on evidence relevant to theinvestigation into the same charges on which Mr. Barrett was arrested. [125] Finally, there was nothing to indicate that Mr. Barrett did not understand his

section 10(

b) right, having not only advised police heunderstood his right but actually informing police that he had received advice on the very issue only one month earlier. Mr. Barrett madehis own decision to engage in a discussion with the police. Cst. Follett was not obligated to re-caution Mr. Barrett. [126] I therefore find that the accused has failed to prove on a balance of probabilities that Mr. Barrett’s

section 10(

b) Charter rightswere violated when Cst. Follett questioned him outside his home on September 14, 2016. 4. Voluntariness – September 14, 2016 Statements [127] The final issue is whether the Crown is able to prove beyond a reasonable doubt that Mr. Barrett voluntarily gave a statement toCst. Follett on September 14, 2016. Unlike an application asserting a breach of a Charter right, it is the Crown that bears the onus ofproving the voluntariness of a statement beyond a reasonable doubt. [128] The Supreme Court of Canada made it clear in R v.

Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3 that statements orconfessions that are given under oppressive conditions or on the basis of inducements should not be entered into evidence. As noted atparagraph 33 of Oickle, the twin goals of the confession rule are to protect the rights of the accused while still recognizing the need forthe police to investigate and solve crimes. [129] At paragraph 71, the Court notes that the analysis as to whether a statement is voluntary must be a contextual one.

In particular: … instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to areasonable doubt as to confession’s voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relativelyminor inducement, such as a tissue to wipe one’s nose and warmer clothes, may amount to an impermissible inducement if the suspect isdeprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilet, supra.

On the otherhand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. If a trial courtproperly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only beoverturned for “some palpable and overriding error which affected [the trial judge’s] assessment of the facts”: “Schwartz v. R., (SCC), [1996] 1 S.C.R. 254 (S.C.

C) at p. 279 (quoting Stein v. “Kathy K” (The) (1975), (SCC), [1976] 2S.C.R. 802 (S.C.C), at p.808) (emphasis in Schwartz). [130] Further, in Hobbins v. R., (SCC), [1982] 1 S.C.R. 553 the court noted that the state of mind of the accused isrelevant to the admissibility of a statement made to police after interrogation. An atmosphere of oppression may be created in thecircumstances surrounding the taking of a statement even though there may be no inducement held out of hope of advantage, or fear ofprejudice, and absent any threats of violence or actual violence.

However, there must be external circumstances brought about by theconduct of the police as opposed to the accused’s own timidity or subjective fear before doubt is cast on the voluntariness of thestatement. There may also be particular considerations affecting the accused which would justify doubt as to voluntariness. [131] Both counsel acknowledge that Mr. Barrett had an operating mind. For its part, the Crown says that the statements were not givenunder oppressive conditions. There was no resort to trickery or other forms of deceit.

Nor was there any conduct that would shock thecommunity. [132] On the contrary, counsel for Mr. Barrett says that the actions of Cst. Follett on September 14, 2016, referenced above, as well asthe prior intimidating relationship, created an atmosphere of oppression such that there is reasonable doubt as to whether Mr. Barrett’sstatement of September 14th, 2016, was voluntary. [133] As I found above, there is no evidence that Cst. Follett was threatening or abusive towards Mr. Barrett. He asked questions in astraight forward manner. The conversation between Mr. Barrett and Cst.

Follett could almost be described as casual and comfortable. Infact, this is confirmed by Mr. Barrett voluntarily walking down to the police car after the discussion to ask Cst. Follett for information onhow to comply with his requirements under the Sex Offender Registry. [134] While Cst. Follett may have asked Mr. Barrett whether there was anything he could tell him to help his case, I cannot interpretthis as a threat, promise or inducement. In fact, Mr. Barrett in his own testimony confirmed that the officer made no promises to him oroffers of leniency. Cst. Follett also gave no indication to Mr.

Barrett that the conversation was in any way “off the record”. [135] As I found above, Mr. Barrett chose to make a statement to Cst. Follett. As noted at paragraph 57 of Oickle in which the court

refers to the decision in R. v. Rennie, [1982] 1 All ER 385, [1982] 1 WLR 64, at page 212, an accused may have mixed motives in deciding to make a confession. For example, the accused may have a hope that an early admission may lead to an earlier release or lighter sentence. However, it is not the motive that is relevant but whether there was anything said or done by a person in authority to act as an inducement or oppression. [ 136 ] Further, while the absence of a caution may be a factor to consider in determining voluntariness, as stated by the Ontario Court of Appeal in R. v.

Pepping , 2016 ONCA 809 , it is only one of many factors to be considered. In that case, as is the case here, the trial judge had made the key finding that the appellant was eager to talk and was aware of the legal consequences of giving a statement. Those two findings were of themselves sufficient to uphold the judge’s ruling that the statements were voluntary. [ 137 ] I therefore find beyond a reasonable doubt that the statements made by Mr. Barrett to Cst. Follett on September 14, 2016 were voluntary. conclusion [ 138 ] I therefore find that: (

i) There was no breach of

section 8 of the Charter in respect of the manner in which the police gained entry to the residence of the accused when executing the warrant to search on July 10, 2015; (ii) The accused’s

section 10(

b) Charter right to counsel was breached during the course of the execution of the warrant to search on July 10, 2015; (iii) There was no breach of

section 10(

b) of the Charter when Cst. Follett conducted follow up questioning of the accused on September 14, 2016; (iv) Statements made by Mr. Barrett during the questioning on September 14, 2016 were made voluntarily; and (

v) A case management will be scheduled to set a date to make submissions on the appropriate remedy for the July 10, 2015, breach of

section 10(

b) of the Charter . _____________________________ Rosalie McGrath Justice