MANITOBA’S highest court has ordered a new trial for a man whose child-luring charges were stayed after a judge ruled police had entrapped him.
Michael Lymych, 38, was found guilty in 2021 of luring a child over the Plenty of Fish dating website.
In a subsequent June 2022 decision, Court of King’s Bench Justice Jeffrey Harris stayed convictions for child luring and making sexually explicit material available to a minor, finding police did not have sufficient grounds to suspect he would commit a crime before ensnaring him in an investigation targeting online predators.
“It is crucial that the police have a foundation for reasonable suspicion to offer an opportunity to commit a crime, for without that foundation, there is an increased likelihood that a citizen may commit a crime that he or she would not otherwise commit,” Harris said.
“The police must not engage in random virtue testing. The decision to intrude into an individual’s private life and offer them an opportunity to commit a crime is justified only if the grounds predate the measure.”
Court heard at trial Lymych sent pictures of his erect penis to an undercover police officer he made contact with on Plenty of Fish and believed to be a 14-year-old girl named “Katie,” telling her: “This is yours now if you want to date exclusively.”
Police arrested Lymych days later after he drove to a Tim Hortons restaurant on Marion Street expecting to meet “Katie.”
Lymych’s lawyer argued at trial the accused believed “Katie” was 21, as indicated in her Plenty of Fish profile page, and it was only after she steered their conversation offline that she claimed to be 14.
Prosecutors appealed Harris’s ruling staying charges against Lymych, with Lymych filing a subsequent conviction appeal in the event the Crown’s appeal was successful.
In a written decision released Thursday, the Court of Appeal of Manitoba set aside Harris’s finding of entrapment and the stay of proceedings.
“I am of the view that the trial judge erred in finding that the police provided an opportunity for the accused to commit an offence before they had the required reasonable suspicion, which led to an erroneous finding of entrapment,” Justice Holly Beard wrote on behalf of the Appeal Court.
“Katie” had already disclosed she was 14 when Lymych told her she could send him “sexy pics in underwear,” leading the undercover officer to the “reasonable suspicion” that he was committing child luring, Beard said.
The court, however, ordered a new trial for Lymych, finding Harris “misapprehended” key pieces of evidence, including Lymych’s testimony he searched Katie’s supposed full name online and found a profile of an adult woman he believed to be the same person with whom he had been communicating. Lymych testified he did not print the search results because he was prohibited from using the internet after he was arrested.
“In reaching his conclusions about both the accused’s credibility and his defence, the trial judge did not consider the evidence of the accused’s explanation,” Beard said. “That evidence was central to the determination of the accused’s credibility and material to his defence.… It is my view that this error led to an unfair trial and a miscarriage of justice.”
No new trial dates have been set.
dean.pritchard@freepress.mb.ca
Dean Pritchard
Courts reporter
Dean Pritchard is courts reporter for the Free Press. He has covered the justice system since 1999, working for the Brandon Sun and Winnipeg Sun before joining the Free Press in 2019. Read more about Dean.
Every piece of reporting Dean produces is reviewed by an editing team before it is posted online or published in print — part of the Free Press‘s tradition, since 1872, of producing reliable independent journalism. Read more about Free Press’s history and mandate, and learn how our newsroom operates.
Our newsroom depends on a growing audience of readers to power our journalism. If you are not a paid reader, please consider becoming a subscriber.
Our newsroom depends on its audience of readers to power our journalism. Thank you for your support.