Judge rules man’s rights violated, but upholds sentence

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This article was published 13/07/2022 (1209 days ago), so information in it may no longer be current.

WINNIPEG police violated a city man’s charter rights when they denigrated his sexual orientation during an interrogation, but that’s not enough to overturn his convictions for sexually abusing three nephews, Manitoba’s highest court has ruled.

The 60-year-old man was convicted of three counts of sexual interference and two counts of invitation to sexual touching. He was sentenced last year to 10 years in prison.

The man — who is not being named to protect the identity of his victims — appealed his conviction, and asked for a stay on all charges. He argued then-Det. Sgt. Elton Hall (now an inspector with the major crimes unit) was abusive and insulting during an interrogation that denigrated his sexual orientation and called into question his relationship with his husband.

“Det. Sgt. Hall’s conduct was a serious departure from the expected standard and undermined the integrity of the justice system, constituting a (charter breach),” Manitoba Court of Appeal Justice Karen Simonsen said in a written ruling.

“While the exceptional remedy of a stay of proceedings is not warranted, this strong rebuke dissociates the justice system from the officer’s actions and, importantly, makes clear that the police cannot conduct an interview in the manner that was undertaken here,” Simonsen said.

The offences occurred between 1994 and 2007, when the victims were between the ages of four and 14. The abuse, which included masturbation, oral sex and fondling, occurred during visits to the man’s home in Winnipeg.

Police interviewed the man two times, first on June 15, 2016, after two victims filed criminal complaints against him, and a second time three weeks later after a third victim came forward. The man provided a statement during the first interview, but remained silent during the second.

It was the second interview that was the subject of the charter challenge. In a video recording of the interview provided to court at trial, Hall told the man he would do everything he could to have his children seized by Child and Family Services, called the man’s partner “a f—-ing sociopath,” called the man “a f—-ing coward” and a “professional victim,” called his lawyer a “slime ball,” said he “hopes (the victims) will knock your f—-ing block off,” and suggested the man will “enjoy jail.”

In another portion of the video, Hall insulted the man’s husband, saying he “f—-ing uses you, he treats you like a bitch… you do what he says and when he says it.”

At trial, Hall testified his aggressive approach was geared to getting the man to talk, and meant to mirror the communication style of the man’s husband, who had been equally aggressive with police.

Hall told Justice Sadie Bond at trial he made no comments on the man’s sexual orientation and did not intend any sexual connotations when he said the man would “enjoy jail.”

Bond said that in the absence of further evidence, she could not conclude Hall’s comment that the offender would “enjoy jail” was sexual in nature.

Bond dismissed a defence motion to stay the charges, ruling that while Hall’s interrogation was “in dangerous territory” and “inappropriate in the circumstances,” it was “not so troublesome” that it would damage the public’s faith in the justice system.

Simonsen, the Court of Appeal judge, ruled Hall’s interview “was rife with sexual innuendo and disparagement based on sexual orientation,” and constituted a violation of the offender’s charter rights.

“The language and tone of the interview were more than offensive, profane and extremely rude,” Simonsen said. “They were threatening, abusive and wholly unacceptable. Taken in its entirety, the interview contravened fundamental notions of justice and thus undermined the integrity of the judicial process.”

But society’s interest in seeing a conviction in the case precludes remedying the police misconduct with a stay of proceedings, Simonsen said.

“The seriousness of the charges and society’s interests in seeing justice done are the factors that weigh most heavily in the balance in this case,” she said.

A spokesman for the Winnipeg Police Service declined to comment on the appropriateness of Hall’s interrogation tactics or the appeal court’s ruling.

The offender “has attempted to appeal the decision without success,” spokesman Const. Jay Murray said in an email. “That said, we are mindful that there are further avenues of appeal, and we have no further comment at this time.”

deanpritchard@freepress.mb.ca