HAPPY VALLEY-GOOSE BAY, N.L.
A 27-year-old Nain man will face a new trial for internet luring.
Shane Harris was acquitted at trial in 2016 on the offence, which allegedly occurred in 2013 in Nain.
At trial, the Crown produced evidence that Harris had communicated via computer with two girls under the age of 18 and had requested photographs from one of them that would have been classified as child pornography.
Judge John Joy, however, ruled the Crown had failed to prove the accused had the specific intent of facilitating the commission of an underlying offence, in this case possession of child pornography.
The Crown believed this was an error of law and appealed the case.
In a written decision published Nov. 1, Justice Frances J. Knickle, agreed with the Crown.
She said Joy had incorrectly interpreted the Supreme Court of Canada decision in R. v. Legare, which prescribes a three-pronged test for internet luring: 1. Intentional communication by computer; 2. With a person the accused knows or believes to be under the age of 18 years; and 3. For the specific purpose of facilitating the commission of a specified offence under Section 172.1(1)a of the Criminal Code of Canada.
Knickle noted that facilitating the commission of an underlying offence is not the same as intention to commit the underlying offence.
“What the Trial Judge needed to decide, was not whether the Respondent intended to commit the underlying offence of the distribution of child pornography, but whether he intended to communicate by computer, with the person under 18 for the purposes of ‘facilitating’ that offence, that is, to use the words, of Fish, J., for the purpose of ‘helping to bring about’ the offence or making the commission of the offence ‘easier or more probable,’” Knickle wrote.
At the June Supreme Court hearing, Crown attorney Stephen Anstey sought a conviction, but the justice agreed with defence counsel Jonathan Regan and Queen’s Counsel John Brooks, who sat in as an impartial observer, that it was unclear in the lower court acquittal as to what were found to be the facts of the case.
“It is not for this Court, sitting as an appellate court, to determine the facts,” Knickle wrote, ordering a new trial.
Anstey was satisfied with the decision.
“It was the right decision on the law,” he told The Labradorian.
While this case has been winding its way through the courts, Harris has been convicted twice of sexual offences involving young victims.
In May 2017, he received a 90-day intermittent jail term for sexual interference. In that case, dating to 2012, court documents state he entered the bedroom of two girls, aged eight and 12, at a home where he was staying in a Labrador community, reached into their beds and touched them sexually.
Most recently, in May of this year, he received another 90-days for internet luring in Grand Falls-Windsor. On that conviction he also received three years probation and lifetime inclusion in the national sex-offenders registry.
A date for the new trial has not been set, but Anstey expects that to happen the next time provincial court sits in Nain in January 2019.