Sex assault accuser reacts to top court case dismissal
Ernest Fenwick MacIntosh remains a free man, judicial case now over
One of the accusers in a long-standing Nova Scotia legal saga says even though the case against the man he says sexually abused him was thrown out, he hopes some good will come out of the Supreme Court ruling.
Ernest Fenwick MacIntosh, now 69, was convicted in two separate trials in the Nova Scotia Supreme Court on 17 counts 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 in 2011, arguing MacIntosh was not brought to trial in a timely manner. The appeal court justices found the trial judge wrongly placed the onus on MacIntosh to turn himself in while he was living in India.
Crown lawyers appealed that decision but Canada's top judges in Ottawa threw out the case and upheld the Court of Appeal decision even before MacIntosh's lawyers had a chance to speak on Monday.
"The court heard from the Crown who were asking for the appeal and decided that they haven't raised any grounds that required us to respond," said Brian Casey, MacIntosh's lawyer.
One of the children, identified by the initials B.M., said this decision to throw out the charges against MacIntosh might be the push that policy makers need to change the system.
"Maybe this is a wake-up call for the bureaucrats to say, 'Okay, we have to do things in a timely manner,' because people like myself will not come out or disclose to the appropriate agencies — and we want to — and I would do this tomorrow in a heartbeat," he said.
"We want to come out we want to tell our story, we want these people put away, we want people to be comfortable coming out because I don't want people looking at me and say, 'Hey, God, he's been at that for 17 years and they let the guy go, I don't want to do that,'" he said.
B.M. said he would not participate in a civil case against MacIntosh, but he said he would welcome an inquiry. He is also pleased that the director of public prosecutions has ordered an internal review into how his department handled the MacIntosh case.
"It doesn't happen often that they deliver a decision right away and it doesn't happen often that they don't need to hear both sides. But if the issues are clear and the decision under appeal is solid, then they can sometimes say that there's nothing really they need to do to improve on the existing decision. They're content to just dismiss the appeal."
Case marred by delays
Casey said the Supreme Court of Canada's decision proves his client's right to a trial within a reasonable time was violated.
"Ordinarily, the courts have established frameworks for trials in the range of 18 months and so it's not hard to say that 14 years is way out of whack," he told CBC News.
"This does mean things are over for him and the Canadian judicial system is finished with him and he can get on with his life."
In 1995, the RCMP received complaints from two men who said MacIntosh, a businessman and a one-time political candidate living in Port Hawkesbury, abused them back in the 1970s when they were boys.
Over the years, more complainants emerged and the list of charges grew to more than 40 counts of sexual abuse involving nine alleged victims.
Even though police knew exactly where MacIntosh was living in India, he wasn't extradited until late 2007; more than 11 years after the first charges were laid. Once back in Nova Scotia, it took almost three years for a trial to be held.
During the first trial, he was convicted of 13 counts of gross indecency and indecent assault and sentenced to four years in prison. In a second trial, MacIntosh was convicted on another four counts and sentenced to another 18 months in jail.
MacIntosh's lawyers appealed those convictions to the Nova Scotia Court of Appeal, arguing the 11 years it took to extradite him from India, plus the three-year delay in getting to trial once he was back in Nova Scotia, violated his charter rights to be tried within a reasonable time period.
What are the arguments?
The Crown argued most of the blame for the almost 14-year case should be placed on MacIntosh's shoulders.
Prosecutors said he was notified of the charges during a phone call he received in 1996 while living in India from the investigating officer in Cape Breton, telling him they had issued an arrest warrant for the two charges they had laid at the time.
The Crown contends if MacIntosh was interested in a speedy trial to clear his name, he could have returned to Canada voluntarily to face the charges, but instead chose to stay in India until he was finally extradited a decade later.
In an argument filed with the court, the Crown said MacIntosh is turning the shield of the charter into a sword to fight his convictions. They also argue that even with the delay, it's in society's interest to have these serious charges of the sexual abuse of children decided in court on their merits and not thrown out on legal technicalities.
Nova Scotia first made the extradition request to Ottawa in 1998, although it was paused for a couple of years in late 1999 while new complainants came forward. No one has ever explained why the request sat on someone's desk in Ottawa between 2001 to 2006, before the formal extradition request was made to authorities in India.
Casey said his client didn't learn about the charges until 1998 when he received notice his passport was going to be revoked.
"He contacted the passport office through his lawyer and said, 'What's the problem?' Asked for disclosure of the file that had led to this decision and they decided they would reinstate his passport instead of disclosing the file information to him. He took from that whatever the allegation was had gone away or wasn't being proceeded with," said Casey.
"He continued to come back and forth to Canada. The passport office always knew where he lived, they hand delivered documents to him, he renewed his passport giving him his address. The RCMP always knew where he was. He says all of that delay is theirs."
Casey argues that MacIntosh — and anyone else accused — does not have an obligation to voluntarily return to Canada to face trial.
"It's just an unfortunate thing where these are now 40-year-old matters. Most of the people who were living in the next room or living on the same property are now dead. That makes it pretty hard to defend the charges," he said.