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Supreme Court of Canada ponders police stings

Newfoundland men charged with child luring await top court’s decision regarding privacy rights

Four men charged with child luring after undercover police officers posed as young teenagers online won't see any movement in their cases until the Supreme Court of Canada makes a decision on the appeal of a similar case.

The four men — 54-year-old Christopher Barnes of St. John's, 29-year-old Jeffrey Fowler of C.B.S., 29-year-old Nick Jones, formerly of St. John's, and 31-year-old Gary Lockyer of Clarenville — were arrested in separate incidents over the past two years.

All four men were arrested through separate but similar police stings, in which undercover officers set up fake social media profiles and email accounts and posed as children, responding to messages alleged to have come from the accused.

Barnes was arrested in 2017 and faces charges of luring and making sexually explicit material available to a child under 18, arranging to commit a sexual offence against a child of the same age and exposing his genitals to a child under 16. The alleged offences happened between May and August of 2017.

Fowler was charged in 2016 with luring and making sexually explicit material available to a child under 18, and exposing his genitals to a child under 16.

Jones was arrested last February and faces two counts each of luring children under 18 and under 16, as well as two counts of knowingly corrupting morals through obscene written material.

Lockyer is facing the most charges of the four men, with a dozen in total, including luring children, exposing his genitals to a child under 16 and making child pornography.

All four men were arrested through separate but similar police stings, in which undercover officers set up fake social media profiles and email accounts and posed as children, responding to messages alleged to have come from the accused.

When the cases were called in provincial court in St. John's Monday, defence lawyer Ellen O'Gorman — whose firm, Sullivan Breen King Defence, represents all four men — asked the judge for a postponement until March, saying she and defence lawyer Rosellen Sullivan want to wait for an appeal decision of the Supreme Court of Canada on whether or not such police stings are a violation of the accused's privacy.

Sean Mills.
Sean Mills. - SaltWire Network

That appeal also involves a Newfoundland man who is represented by the same law firm: Sean Mills, who was convicted in 2015 of luring a 14-year-old girl online.

The girl with whom Mills thought he had been chatting was actually a male RNC officer who had set up a fake Facebook profile, complete with profile picture. He received a message from Mills, who wrote, "Good Lord! For having just one picture on Facebook, you sure picked a good one. Beautiful!" A conversation ensued on Facebook and via email, with Mills asking the "girl" to delete their conversations so no one else would find them. Mills was arrested when he arranged to meet the "girl" in Bowring Park, and police officers showed up instead.

At the time of Mills' sentencing, Judge David Orr said he had concerns with the police investigation and noted investigators didn't get judicial authorization when it came to the conversations with Mills. He acknowledged there were no police policy manuals laying out limitations for the investigators' techniques, saying the officers were effectively using their discretion as to what they did with the information they had gathered from the online chats.

"Mr. Mills did have his privacy breached, but at the same time he did have a lower expectation of privacy given the nature of the activity he was engaged in," Orr said, but ruled the privacy breach wasn't serious enough to warrant a stay of the charge. Instead, he reduced Mills' jail sentence from 14 months to 12.

Mills appealed his conviction in Newfoundland and Labrador Supreme Court, but it was dismissed, with the court agreeing with Orr that Mills did not have a reasonable expectation of privacy. The court determined the conversation between Mills and police was not "intercepted," since police were involved in the communication.

Mills appealed to the country's highest court, which heard his case last May and has yet to release its decision.

If the court overturns Mills' conviction on the basis that the police stings were a breach of his rights, it sets a precedent and will have implications for the cases of Barnes, Fowler, Jones and Lockyer. Their cases are due to be called again for a status update on March 20.

Twitter: @tara_bradbury

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