The Crown in Nova Scotia says the Supreme Court of Canada should consider society's "heightened interest" in sexual abuse cases when it decides whether to allow an appeal to proceed in the case of Ernest Fenwick MacIntosh.
MacIntosh was convicted by the Nova Scotia Supreme Court in July 2010 on 13 of 26 charges of indecent assault and gross indecency, almost 15 years after allegations surfaced that he sexually abused boys.
However, the Nova Scotia Court of Appeal dismissed the convictions late last year, arguing that he was not brought to trial in a timely manner. The appeal court justices found that the trial judge wrongly placed the onus on MacIntosh to turn himself in while he was living in India.
They ruled when officials didn't pursue him for extradition, even though they knew where he was, his right to be tried within a reasonable time was infringed.
In a brief filed with the Supreme Court of Canada on Feb. 2, Nova Scotia's prosecutors say the appeal court erred because it didn't give enough weight to the public's interest in having a trial despite the passage of time.
In particular, it failed to "consider society's heightened interest in a trial on the merits for serious allegations of sexual violence against children and young persons," the Crown argues.
The Crown also says they can rely on legal precedents from provincial Supreme Court decisions that support its position.
"The Nova Scotia Court of Appeal has taken a different approach, focusing instead almost exclusively on the actions of the state in its efforts to bring about the return of the accused and characterizing the accused's decision to remain out of the country as passive inaction."
Nova Scotia's decision has created confusion over the matter, and the Supreme Court must resolve the issue, the Crown adds.
"The differing legal approaches across the country, if not resolved, will cause confusion and uncertainty in every case where alleged criminals return to Canada to face charges after extradition."
Brian Casey, MacIntosh's lawyer, says he has 30 days to file a response to the application to the Supreme Court which he received Monday.
He says it will contain many of the same arguments he made in the appeal case, with a focus on the delay in bringing his client to trial and the appeal court's finding that the trial judge misunderstood some of the evidence.
MacIntosh's extradition proceedings started in 1997, but were marred by delays.
It wasn't until 2006 that the extradition request was forwarded to India. MacIntosh was arrested in April 2007.
The Crown is also disputing the appeal court's conclusion that the judge had misunderstood evidence and that some of the evidence by the men who testified raised credibility issues.