Photo: Creep Hunters

A Kamloops sheriff will stand trial in Kelowna in May.

The former Kamloops sheriff who faces child luring charges after being caught up in a Creep Hunter's sting will challenge the constitutionality of one of the charges against him next February.

Kevin Johnston was charged in the summer of 2016 after he allegedly sent sexually explicit texts to a girl he thought was 14-years-old and arranged to meet up with her in Kelowna.

The person he was communicating with was actually a member of the Creep Hunters, now known as the Creep Catchers.

The controversial group poses online as underage people in an attempt to catch people they claim are child predators.

While Johnston originally elected to face a Supreme Court jury trial in February, he has since changed his election to face a judge-only provincial court trial in May.

Prior to his trial, a hearing for Johnston's constitutional challenge will be held Feb. 5 and 6.

At the hearing, Micah Rankin, Johnston's lawyer, intends to argue that the child luring laws in Canada, which were created in 2002, violate the accused's presumption of innocence.

“The Creep Catchers pretend to begin with that they're an adult, and then midway through an email exchange, say, 'no wait, I'm actually 15,'” Rankin said. “What the law does, is it creates an assumption that the accused person believed that the online person was in fact that age, the age that was represented.”

Rankin says this gives the Crown too much assistance.

“Rather than making the Crown prove its case, which is the fundamental law in Canada, they create these kinds of procedural short cuts,” Rankin said.

“The involvement of those kinds of cyber-vigilante groups, as I would call them, kind of illustrate the problem with this law, in that it goes too far, in the sense of potentially capturing innocent conduct, like people engaged in fantasy role-playing and that kind of thing.”

Rankin points to an Ontario Court of Appeal decision last July that found a section of the luring a child law violates an accused's Charter right to the presumption of innocence. The section says that “in the absence of evidence to the contrary,” if a person represents themselves as underage, this is proof the accused believed the person was underage

Even if Johnston's challenge is successful in February, he will still face trial in May.

“What we're saying is the Crown has to be put to the ordinary proof of its case, it can't rely on these helper provisions,” Rankin said.

“Nobody's coming forth and saying I have a constitutional right to send sexual messages to children, they're saying, if the Crown says something that I did was wrong then they have to prove that I was really doing what they're saying.”

In a Facebook video posted on Aug. 27, 2016 that's been viewed over 100,000 times, one of the Creep Hunters talks to a man they say is Johnston, after exchanging texts with him for days.

“I honestly thought you were older, even though you did say you were 14,” the man on the phone, alleged to be Johnston, says in the video. “You did say you were 14, I will full-on say that I read that in the texts, that you said you were 14, but honestly I didn't believe that you were that age, just by the texts.”