Court File and Parties

Ontario Court of Justice

Date: 2017-12-11

Court File No.: London 16-6511

Between:

Her Majesty the Queen

— and —

Robert Barber

Before: Justice A. Thomas McKay

Heard on: November 3, 2017

Reasons for Judgment released on: December 11, 2017

Counsel:

• Mr. J. Carnegie, counsel for the Crown
• Mr. G. Donald, counsel for the defendant Robert Barber

MCKAY J.:

INTRODUCTION

[1] Mr. Barber is charged with attempting to obstruct justice contrary to section 139(2) of the Criminal Code. At the time of these events, he was a police officer.

[2] On February 7, 2016, Mr. Barber's common-law spouse discovered certain videos and images on an external hard drive belonging to Mr. Barber. As a result, she accused him of infidelity. Some of the videos depicted Mr. Barber acting on certain sexual fetishes and accordingly were highly embarrassing. She also accused him of being in possession of child pornography. The parties communicated by text message, and she indicated to him that she was taking the hard drive to the police. Mr. Barber denied ever being in possession of child pornography, and suggested that she was simply taking the hard drive to the police in order to humiliate him. She also indicated to him that she was leaving their shared residence for a period of time, and that he should pick up his belongings or she would throw them onto the front yard.

[3] She left the residence, and Mr. Barber attended to retrieve his belongings. Included in the belongings which he retrieved was a laptop computer which his common-law spouse had been unable to access because it was password-protected. The following morning she took the external hard drive to the police. Ultimately, nothing was found on the external hard drive to substantiate the allegation of possessing child pornography. However, police obtained a search warrant which allowed them to attend at Mr. Barber's family home on February 11, 2016 and seize the laptop computer which had been removed from the shared residence.

[4] When police examined the computer, they determined that at approximately 6:08 p.m. on February 8, 2016, Mr. Barber had carried out a new installation of Windows 10 on the computer, thereby deleting all data contained on the computer prior to that date. It is possible to do so through tools built into Windows 10, or through the use of third-party software. The result was that the police were unable to examine that computer to determine what data it contained prior to 6 p.m. on February 8, 2016.

[5] Mr. Barber was charged with a number of offences. Ultimately all charges were withdrawn, other than the obstruct justice charge. The Crown alleges that Mr. Barber's actions in reformatting the laptop hard drive prevented the police from carrying out an investigation as to the contents of that computer, and constitute an attempt to obstruct justice.

EVIDENCE

[6] The evidence at trial came from two sources. One was a Statement of Agreed Facts, which I will reproduce in its entirety below. The second consisted of an extraction report which reproduced a lengthy series of text messages between Mr. Barber and his former common-law spouse.

Agreed Statement of Facts

[7] On February 6, 2016 Meaghan McLachlin was in a common-law relationship with Robert Barber, with the two cohabiting at 1220 King Street, London, Ontario. At approximately 8 p.m., they began a discussion over the telephone and text messages about alleged infidelity on the part of Mr. Barber as a result of information Ms. McLachlin obtained from social media.

[8] During this discussion, Ms. McLachlin attempted to gain access to an Acer Aspire laptop computer belonging to Mr. Barber that was located in their shared residence at 1220 King Street, in the City of London, Ontario. She could not access the laptop at the time as it was password-protected. Ms. McLachlin had previously been advised by Robert Barber that this laptop was broken.

[9] On February 7, 2016 at 11:04 a.m., Meaghan McLachlin asked Robert Barber what was on his Acer Aspire laptop to which he responded "Nothing, I will show you when I get home. I only use that to download music".

[10] On February 7, 2016 at 11:16 a.m., Meaghan McLachlin confronted Robert Barber about the files she had located on a Maxtor hard drive belonging to him. Ms. McLachlin informed Mr. Barber that she believed the Maxtor hard drive contained child pornography and other material that was evidence of a crime and that she would be reporting what she found to the Police. Mr. Barber advised Ms. McLachlin that he would never knowingly possess child pornography and asked her not to report anything to the police.

[11] Upon subsequent analysis, the police concluded that the Maxtor hard drive contained no child pornography.

[12] The text messages sent between Robert Barber and Meaghan McLachlin, as recovered from the cellular telephone of Mr. Barber, have been attached as an appendix to this Agreed Statement of Facts.

[13] On February 7, 2016, at approximately 8 p.m., Robert Barber returned to 1220 King Street, London Ontario, and removed some of his belongings including his Acer Aspire laptop computer.

[14] On February 8, 2016 at 3:20 p.m., Meaghan McLachlin provided a statement to the Police in relation to the files she located.

[15] On February 8, 2016 Detective Constable Johnson obtained a search warrant for the residence of Robert Barber, located at 1220 King Street, in the city of London, Ontario, and a Honda Civic bearing Ontario license plate BMRP 885 parked within the laneway of that residence. The search warrant was in relation to computer devices which would reveal evidence of the offences of Possession of Child Pornography and Voyeurism.

[16] On February 8, 2016, at 11:05 p.m., London police executed a search warrant at 1220 King Street, London, Ontario. Located at the time was the Maxtor hard drive and a computer tower used by Robert Barber. The Maxtor hard drive was located in the trunk of the Honda Civic bearing Ontario license plate BMRP 885 as Ms. McLachlin had secured the device there prior to Robert Barber's attendance at the residence, on February 7, 2016. The laptop computer as described by Meaghan McLachlin was missing from the residence.

[17] On February 9, 2016, Detective Constable Johnson reviewed the images and videos located on the Maxtor hard drive and observed numerous videos which were voyeuristic in nature, the videos included:

[18] Between February 26, 2009 and February 28, 2011 the accused recorded approximately 40 surreptitious videos in a public place, believed to be a library. The dates of the videos range from November 26, 2009 to February 28, 2011. The videos were taken surreptitiously underneath a desk and were of women's feet while wearing shoes and boots.

[19] Further videos were located on the external hard drive which revealed the accused's sexual attraction to both feet and shoes/boots.

[20] Detective Constable Johnson believes after reviewing all the videos that the accused has a sexual attraction to feet and shoes and was surreptitiously recording the unsuspecting females for a sexual purpose.

[21] Detective Constable Johnson observed four videos which were recorded on November 19, 2009 at approximately 5:49 a.m. by the accused. In the videos the accused is observed licking the feet of an unresponsive female who is lying on a mattress.

[22] Detective Constable Johnson observed three videos which were recorded on December 3, 2009 at approximately 5:33 a.m. by the accused. In the videos the accused is observed licking and masturbating on the feet of an unresponsive female who is lying on a mattress. At the conclusion of the recording the accused is observed ejaculating on the feet of the unresponsive female.

[23] Detective Constable Johnson observed two videos which were recorded on December 22, 2009 at approximately 5:22 a.m. by the accused. In the videos the accused is observed masturbating on the feet of an unresponsive female. At the conclusion of the recording the accused is observed ejaculating on the feet of the unresponsive female.

[24] Detective Constable Angela Johnson observed a video that was recorded on June 14, 2010 by the accused. In this video Detective Constable Johnson observed the accused setting up a recording device in a bedroom. At one minute and 54 seconds into the video an unidentified female enters the room. At four minutes and 45 seconds the accused and the unidentified female begin to get undressed and engage in sexual acts. At 12 minutes into the video the accused asks the female if he can record her feet. The unidentified female refuses. The accused grabs a recording device and the unidentified female again says no. While the accused is holding the recording device the female covers her breasts with her arms while refusing. The accused then puts down the recording device. At 20 minutes into the video, the two get dressed and have casual conversations. At 36 minutes and 12 seconds, the unidentified female and the accused exit the room. At 45 minutes and 45 seconds, the accused is observed returning to the room and turning off the recording device.

[25] On February 11, 2016 at 4:14 p.m. Robert Barber was arrested at London Police Headquarters by Detective Fair for three counts of Sexual Assault and two counts of Voyeurism. He was read his rights to counsel and caution.

[26] On February 11, 2016, a search warrant was conducted on 4369 5th Avenue Niagara Falls, Ontario, the residence of Robert Barber's mother. Robert Barber's Acer Aspire laptop was seized from the residence.

[27] On February 12, 2016, Detective Constable Mitchell began an analysis on the Acer Aspire laptop belonging to Robert Barber.

[28] On February 16, 2016, Detective Constable Mitchell determined that Windows 10 had been installed on the Acer Aspire laptop and the hard drive on February 8, 2016, at approximately 6:08 p.m. One user account was configured on this device with the name of "Rob". The account was not password-protected. All data prior to the Windows installation had been deleted and could not be recovered as the drive had been overwritten with either random or previously encrypted data. It is possible to achieve this result using tools built into Windows 10 or through the use of third-party software.

[29] Robert Barber was responsible for the new installation of Windows 10 on the Acer Aspire laptop on February 8, 2016 and for deleting all data located on the device prior to the new installation of Windows 10.

The Text Messages

[30] The exchange of text messages between Mr. Barber and Ms. McLachlin is at times heated. The tone of the text messages suggests that Mr. Barber is still attempting to preserve the relationship. In addition, the texts review the embarrassing nature of some of the videos. There are references to videos recording behaviour related to sexual fetishes, including videos in which Mr. Barber is masturbating on shoes and wearing diapers. Their text conversation includes many messages discussing various fetishes, and also deals with issues of infidelity.

[31] At one point, Ms. McLachlin suggests that she has discovered child pornography on the hard drive. That claim is strongly denied by Mr. Barber. Ms. McLachlin indicates that she will be providing the police with the hard drive. Mr. Barber suggests that she is doing so in order to humiliate him, and indicates that her providing the material to the police will end his career. He denies that any of the material is child pornography, and asks her to simply delete the material from the hard drive. At one point he sends a message saying "Just delete it. I know there's weird stuff but I never ever ever would have child porn. You know that!" She refuses to delete the material. Ms. McLachlin tells him to come to the residence when she is not there in order to pick up his belongings.

[32] At another point in the messages when emotions are particularly high, Ms. McLachlin writes "You deserve to crash and burn". Mr. Barber asks "why are you so fixed on humiliating me"? She responds by saying "I'm sure people will be really surprised when they hear what you did to me". Mr. Barber later responds by apologizing and indicating that he cannot imagine how much he must have hurt Ms. McLachlin. He then offers to give her the passwords to all of his electronic devices, and to stop using Facebook. He continues to attempt to preserve the relationship.

POSITIONS OF THE PARTIES

The Crown

[33] Mr. Barber, who was an active police officer at the time, and understood police procedures, was aware that Ms. McLachlin was alleging that there was child pornography on the hard drive, and that she intended to take it to the police. Knowing that there would be an investigation, he attended the residence and removed his laptop computer. He took the laptop to another location and destroyed the data on it by overwriting it. In doing so, he interfered with an investigation by destroying potential evidence. It matters not what was actually on the laptop; what matters is that he intentionally prevented the police from carrying out an investigation of the contents of the laptop.

[34] When the police obtained proper authorization, they were entitled to view the contents of the computer. His actions prevented that. There was no risk to him of further embarrassment or damage to his reputation, given that if the police did not discover anything criminal on the laptop, they would not have authority to disclose its contents. His actions in intentionally reformatting the laptop constitute the offence for which he was charged.

The Defence

[35] The defence characterizes this case as a blend of equal parts suspicion and reasonable doubt. The offence is a specific intent offence. Ms. McLachlin was never able to access the laptop, and had no idea what data might be on the laptop. She told Mr. Barber to attend the shared residence and remove his belongings, which he did. No one will ever know what data was on the laptop, but it was not the subject of Ms. McLachlin's allegations nor part of her complaint to the police.

[36] The text messages between Mr. Barber and Ms. McLachlin show that Mr. Barber did not believe that there was child pornography on the Maxtor hard drive, and that Ms. McLachlin was determined to humiliate and embarrass him. The context of the text messages relates to the embarrassing and humiliating acts involving fetishes which were shown in the videos. Those acts include allegedly masturbating into the shoes of a mutual friend, and sexualized diaper wearing. Mr. Barber was concerned about humiliation and the loss of his job, and was still attempting to preserve the relationship between him and Ms. McLachlin. The content of the messages make the nature of his concerns apparent. There is no evidence to suggest that he is aware that police have any interest in the laptop computer.

[37] The defence submits that one possible inference from the evidence is that Mr. Barber intended to obstruct justice. Another just as plausible inference is that the laptop contained further embarrassing videos and additional evidence of infidelity, all of which would make it more difficult for Mr. Barber to avoid further embarrassment and to preserve his relationship with Ms. McLachlin. Accordingly, the computer was reformatted in response to those issues. At that point, Mr. Barber was perfectly entitled to reformat his computer.

APPLICABLE LEGAL PRINCIPLES

[38] Section 139 of the Criminal Code sets out the offence of obstructing justice. Section 139(1) deals with offences related to sureties. Section 139(3) deals with attempts to influence witnesses or jurors. The applicable section, section 139(2), reads as follows:

"Everyone who wilfully attempts in any manner other than the manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years".

[39] The expression "the course of justice" in subsection (2) includes judicial proceedings existing or proposed but is not limited to such proceedings. The offence under this subsection also includes attempts by a person to obstruct, pervert or defeat a prosecution which he contemplates may take place, notwithstanding that no decision to prosecute has been made. (See R. v. Spezzano, 34 C.C.C. (2d) 87 (Ont. C.A.).)

[40] Ontario courts have adopted "the tendency test" used in the English courts. Therefore, attempting to obstruct justice is construed as the doing of an act which has a tendency to pervert or obstruct the course of justice. The word "wilfully" denotes the mens rea required for a conviction. It is a specific intent offence and the onus is on the Crown to prove that the accused, when carrying out the actions which constitute the actus reus of the offence, intended to obstruct the course of justice.

[41] Given that there is no direct evidence as to Mr. Barber's intention, in order for the Crown to obtain a conviction, the court would have to infer from circumstantial evidence that he intended to obstruct the course of justice.

[42] The Supreme Court of Canada indicated in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at paragraphs 37 and 38 that when assessing circumstantial evidence, a trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown may need to negative these reasonable possibilities, but certainly does not need to negative every possible conjecture which might be consistent with the innocence of the accused. The terms "other plausible theories" and "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. The court indicated that the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

ANALYSIS

[43] Mr. Barber's common-law spouse was understandably irate at the time of the text message exchange. At that point, Mr. Barber knew that Ms. McLachlin was very angry, and that she was threatening to take the hard drive to the police with an allegation that it contained child pornography. He vehemently denied that allegation, and asked her not to take the hard drive to the police. At that point, he apparently also knew that the hard drive did not contain child pornography, a fact that was ultimately borne out by the police analysis of the hard drive.

[44] As I understood the thrust of the Crown's position, Mr. Barber had an obligation to preserve the contents of his laptop because he would have, or should have known that there was a possibility that if Ms. McLachlin followed through and took the Maxtor hard drive to the police, the police might well decide to investigate the contents of the laptop, and obtain judicial authorization to do so. There is no direct evidence before the court that Mr. Barber knew that the police would be conducting an investigation into the contents of the laptop, or obtaining a search warrant for the laptop. To find that the failure of Mr. Barber to maintain the data on the laptop in that situation would be to effectively endorse the principle that as soon as Ms. McLachlin made an allegation of criminality against him, an allegation that he rejected as false, Mr. Barber no longer had control over his personal property. He was obligated to maintain it in its current state because of the possibility that the police might want to conduct an investigation related to that property. On these facts, I cannot endorse that principle.

[45] In terms of possible inferences supported by the evidence, it is plausible to draw an inference that Mr. Barber would not want anyone to view the videos which depicted him acting out sexual fetishes. An inference that he may have reformatted the hard drive of the laptop in order to avoid further embarrassment and conflict with Ms. McLachlin could also be supported by the evidence.

CONCLUSIONS

[46] The Crown has not proven beyond a reasonable doubt that Mr. Barber wilfully attempted to obstruct the course of justice. There will be a finding of not guilty.

Released: December 11, 2017

Signed: Justice A. Thomas McKay