Jus­tice or­ders new trial in Nain in­ter­net lur­ing case

Supreme Court rules trial judge erred in ac­quit­ting Shane Har­ris

The Labradorian - - Front Page - BY THOM BARKER

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 three­p­ronged 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.

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