A man who used his cellphone to lure underage girls into sending him nude and provocative pictures has been sentenced to six months in jail.
It’s a sentence that both the Crown and judge acknowledged to be low for the offence, but it was the result of a plea bargain struck due to problems with the prosecutor’s case.
Those problems included a mistake by Brandon police that could have resulted in the evidence being tossed out of court if the case had gone to trial.
That meant the Crown had to make a "tough call" in agreeing to a bargain, the judge said.
"While low sentences sometimes cause a loss of public confidence in the administration of justice, I think that acquittal based largely, if not completely, on technicalities do even more damage to the reputation of the administration of justice," Judge Shauna Hewitt-Michta said.
Barron Kane Martin, 31, pleaded guilty on Thursday to two counts of luring for the purpose of making child pornography.
Crown attorney Rich Lonstrup said that in April 2015, Martin’s girlfriend went to police and handed over a cellphone that Martin had used to elicit sexually suggestive photos from a girl believed to be 13 years old.
She showed police chat messages in which Martin had used the social app, Kik, to get the girl, who identified herself as being 13, to send him photos of herself in provocative positions. The girl sent him pictures of her clothed buttocks, while in sexually suggestive positions.
Police managed to track Martin using information obtained from the app.
A further search of the phone revealed further messages in which he had chatted with a person who identified herself as being 16 years old.
Martin convinced the girl to send him pictures of herself that became more and more revealing, until she sent pictures of her exposed private parts. He also convinced her to perform sex acts.
No mention was made of whether police tracked down the girls believed to have talked online with Martin, so it was never proven that the girls were actually underage.
But that wasn’t needed to prove the offence which only required that Martin believed he was getting underage girls to send him sexual pictures.
The police mistake came after they had obtained Martin’s phone.
Lonstrup said that investigators had wisely obtained a warrant to search Barron’s cellphone. Prior Supreme Court decisions have indicated police need a warrant to examine such devices, otherwise it’s viewed as a serious breach of privacy.
However, the warrant was only valid July 13 to Aug. 13, 2015. Lonstrup said an officer made an attempt to examine the phone on the final day, but failed due to a passcode.
Police updated their technology a few months later and successfully entered the phone in mid-November, but that was past the warrant expiry date and it wasn’t renewed. Lonstrup said the officer believed that it was the initial, failed, search attempt that mattered when it came to the date — she believed that the second attempt was akin to re-examining an exhibit for DNA.
But that belief had exposed the case to an argument that the search was a violation of the unreasonable search protections of the Charter of Rights and Freedoms. The evidence from the phone might have been excluded at trial and the accused acquitted.
Hewitt-Michta pointed out that it was better for the Crown to secure an admission in exchange for a lower sentence, than to risk having the case getting thrown out and the accused face no punishment or rehabilitative help at all.
Lonstrup said such charges usually carry a 12-month jail term, but due to the problems with the case he agreed to a total sentence of six months.
Despite the proposed six months in jail being described as low, defence lawyer Andrew Synyshyn said that his client, who was out on bail, came to court for sentencing knowing that jail was mandatory if he entered a guilty plea.
Martin told court that he was unemployed, drinking and lonely when he committed the crimes.
After jail, Martin will be on a two-year probation order that restricts his use of computers and smartphones. For 10 years, he’ll be on an order that restricts his contact and communication with youth under 16 years old.<t$>