The sentencing of a Port aux Basques man found guilty of sexually assaulting a 12-year-old girl in 2015 has been delayed as the man’s lawyer reviews the necessity of having a Gardiner hearing.
Twenty-three-year-old Russell Edward MacLean had been convicted by a jury following a trial in the Supreme Court of Newfoundland and Labrador in Corner Brook in September 2017.
His sentencing had been scheduled to take place in November, but at that time he had changed lawyers, with Bob Simmonds taking over the case from Beverley Marks, and the matter was set over to Friday.
Simmons appeared via teleconference on Friday morning and updated the court on the actions he’s taken with respect to the Gardiner application.
Simmons has already filed his brief on the issue with the court and is awaiting the Crowns response.
During the trial the jury heard that MacLean, who was 21 at the time, and the girl had carried on a sexting relationship for a few months via the social media application Snapchat prior to meeting on June 1, 2015 to engage in sex.
While the sex was consensual the girl was under 16, the legal age at which a young person can consent to having sexual relations with another person.
Simmonds said there are two possibilities for the Crown’s position — one, that he intentionally had sex and knew that she was under the age or two, that he was not as careful, and prudent and appropriate as he should have been and had sex.
Crown attorney Trina Simms has until Feb. 16 to file a response.
Justice George Murphy set the matter over until Feb. 23, at which time a hearing date will be set should argument be needed on the application.