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Man’s treatment in custody ‘entirely unacceptable’

STEVE BRUCE THE CHRONICLE HERALD sbruce@herald.ca @Steve_courts

A judge has criticized Halifax Regional Police for their handling of a man who went at least 11 hours without food or water and had to sleep on a bare floor in an interview room after he was arrested in November 2020 on sexrelated charges.

“I have concluded that (Cody Dylan Macintosh’s) treatment while in police custody at the HRP station falls far below the standard we should expect from police and created an atmosphere of oppression,” Judge Elizabeth Buckle said in a Halifax provincial court decision that was released in writing Tuesday.

“Unfortunately, this is not the first time in recent years when I have seen a similar pattern at HRP – suspects being placed in interview cubicles for long periods of time before the start of an interview with very little attention to their well-being.

“The officers assigned to guard seem to see their duty as ensuring the prisoner is alive and doesn’t escape or talk to anyone rather than ‘prisoner care.’ I don’t know if this pattern is indicative of an issue with training, if the junior officers are simply afraid to do anything without specific direction or if the treatment is purposeful.”

But Buckle denied a defence application to have the statement Macintosh eventually gave police ruled inadmissible at trial.

“The Crown bears the onus of proving the voluntariness of the statement beyond a reasonable doubt, and I find that the onus has been met,” she said.

“This was a very difficult decision. Mr. Macintosh’s treatment was entirely unacceptable and created an atmosphere of oppression and subtle inducement. I have no doubt that, given his mental health and possible cognitive limitations, the circumstances were entirely capable of causing a situation where an accused would speak solely to get out of the situation.

“In the absence of evidence that Mr. Macintosh wanted to tell his side of the story from the beginning, I would have had no difficulty concluding this statement was not voluntary. However, I am satisfied beyond a reasonable doubt that Mr. Macintosh’s decision to talk to police was his own. His will was not overborne by the circumstances of his detention or any inducements, perceived or real, because his will or desire from the beginning was to tell his side of the story.”

Macintosh, 25, is accused of sexually assaulting a 16-yearold girl in the washroom of a shopping mall on Spring Garden Road in Halifax on Nov. 26, 2020.

He was arrested in Dartmouth the next day at about 3 a.m. and was held in an interview room at police headquarters until an investigator began questioning him at about 2:40 p.m.

Macintosh is scheduled to stand trial next spring on charges of sexual assault, sexual interference and making child pornography.

Defence lawyer Peter Planetta argued in his application that the circumstances of Macintosh’s detention were oppressive and that he was offered improper inducements, which together raised a reasonable doubt about the voluntariness of his statement.

Planetta said the treatment that created the oppressive atmosphere can be clearly seen in video of the interview room and the officers’ various explanations do not excuse or explain the treatment. He said the interview cubicle Macintosh was held in for hours was not suitable for that purpose and that when he was able to sleep on the floor, he was regularly roused for safety checks.

The lawyer also said his client remained in handcuffs for nine hours following his arrest; was not given any water for 11 hours; had no food for 11.5 hours; was not supplied with a blanket until two hours after he complained about being cold; and was not provided with prescribed medication until 11 hours after his arrest – eight hours after he told officers he suffered from anxiety and bipolar disorder and two hours after he requested his medication.

Macintosh testified that when detectives took him outside for a cigarette before interviewing him, they suggested things would go better for him if he spoke to them. The detectives denied that allegation.

Crown attorney Alicia Kennedy acknowledged some aspects of Macintosh’s treatment were not perfect but submitted what occurred did not rise to the level of oppressive circumstances.

Although she ultimately found Macintosh’s statement to be voluntary, the judge said the reliability of some or all of what he told police could be called into question at trial.

“When I consider the impact of Mr. Macintosh’s statement on the trial, the circumstances of his detention, his mental health and cognitive limitations will all form part of my assessment of that

statement,” Buckle said.

OPINION

en-ca

2021-12-01T08:00:00.0000000Z

2021-12-01T08:00:00.0000000Z

https://saltwire.pressreader.com/article/281616718646989

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