Ernest Fenwick MacIntosh remains a free man, judicial case now over
Posted: Apr 22, 2013 6:23 AM AT
Last Updated: Apr 22, 2013 8:15 PM AT
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.
The Supreme Court of Canada agreed to hear the case of Ernest Fenwick MacIntosh in June 2012. (Adrian Wyld/Canadian Press)
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.
Top court upholds MacIntosh sex crimes acquittal
OTTAWA — Ernest Fenwick MacIntosh will remain a free man after the Supreme Court of Canada confirmed Monday his sex crime convictions must be thrown out.
The Supreme Court judges surprised the courtroom by dismissing the Crown’s appeal after a 15-minute morning recess.
MacIntosh’s lawyers had not even spoken yet.
Victims and victims’ rights advocates are now demanding an inquiry into how authorities botched the case.
In 2010, MacIntosh was convicted by the Nova Scotia Supreme Court of 18 counts of indecent assault or gross indecency against four boys in the 1970s.
But by the time the allegations came forward in 1995, MacIntosh was living in India as a vice-president of a cellphone company. It took over a decade for the government to extradite him back to Canada.
MacIntosh appealed on the basis that his right to a speedy trial was violated. The Nova Scotia Court of Appeal agreed and overturned the convictions.
Crown lawyer Mark Scott tried to have that ruling reversed Monday, but found himself repeatedly rebuked by Supreme Court judges.
Scott argued MacIntosh himself was partly to blame for the delay in the extradition. He conceded that there were periods of years where the case did not appear to move forward. He also agreed there was a frustrating lack of answers as to why it took so long to extradite MacIntosh.
But Scott said that MacIntosh showed no sign he desired a speedy trial. He argued MacIntosh knew he was being investigated, but remained “wilfully blind” by not having his lawyers check to see what was happening with the case.
“If the record shows that he had no interest in a speedy trial, then he can’t complain of prejudice thereafter,” said Scott.
But one by one the judges tore apart his argument. Several judges noted this would put a burden on the accused to speed up their own prosecution.
“What you’re essentially saying is, if the Crown is slow, is negligent, it will have no consequences unless the accused actually takes active steps to speed up the process,” said Justice Louis LeBel.
“So the accused would have, in a way, a legal obligation to prosecute his own case?”
MacIntosh’s lawyers did not even need to rebut the Crown’s argument. After a scheduled 15-minute break, the justices returned and surprised the courtroom by dismissing the appeal.
Oral judgments such as this are rare but not unheard of.
The federal government has so far declined to start an inquiry into why MacIntosh’s extradition took so long because the case was before the courts.
At Province House in Halifax, Justice Minister Ross Landry said the Public Prosecution Service will review its handling of the case. He said he expects a report by late May.
Landry said he’d like to get a better understanding of the connection between the responsibilities of the federal and provincial governments in the case.
“The outcome says that we need to examine this,” the minister said.
Liberal justice critic Michel Samson had called for a review more than a year ago. “Someone has to explain what went wrong here,” Samson said. “More importantly, let’s make sure that this never happens again.”
Progressive Conservative justice critic Allan MacMaster said the review should be by someone independent.
“I think people need to know it’s not just people inside the system reviewing what happened themselves,” he said. “And I would hope that something could be done fairly quickly as well.”
One of MacIntosh’s victims, known as DRS in court documents, was in the audience for the Supreme Court hearing. He said the government needs to explain why MacIntosh’s passport was renewed twice while he was wanted in Canada.
“The key factor is why was he given his passport when there was a Canada-wide warrant for his arrest on outstanding charges? That is squarely in the hands of the federal Department of Justice,” said the man, who cannot be identified due to a publication ban.
Another victim in Nova Scotia said he was disgusted that MacIntosh will walk free after everything the victims and their families have gone through.
“My concern is that any victim in any situation may have trouble going to authorities to disclose any type of abuse when they look at my case. Look at the mess of this injustice,” he wrote in an email.
Rosalind Probert, president of Beyond Borders/ECPAT Canada, said the MacIntosh case reveals systemic problems that still exist. She said the government needs to start a public inquiry into the case.
“Listening to the Crown attorney from Nova Scotia basically fall on his sword and talk about the bungling in his own department was difficult to listen to. It cries out for an answer for these victims,” she said.
Beyond Borders is a national volunteer organization fighting for the rights of all children to be free from sexual abuse and exploitation.
With David Jackson, Provincial Reporter
Supreme Court dismisses Crown’s appeal of Ernest MacIntosh abuse case
22 April 2013
By The Canadian Press
OTTAWA – The Supreme Court of Canada has rejected the Crown’s appeal of a decision quashing sex offence convictions against a Nova Scotia man involving boys in the 1970s.
The Nova Scotia Court of Appeal originally threw out 17 sex offence convictions against Ernest Fenwick MacIntosh on the grounds that a 14-year delay between the original allegations and the trial was too long.
The Crown’s appeal was only being heard today, but the high court settled the matter quickly with a rare oral judgment.
The allegations against MacIntosh, a former Cape Breton businessman, date back to the 1970s, but only surfaced in 1995 when he was working in India.
An extradition request was not made until 2006 and MacIntosh was returned to Canada in 2007.
He faced two trials on the charges.
MacIntosh was convicted of molesting four boys, although the charges filed against him in 1995 alleged he engaged in sex acts with six boys.
Child sex offenders: Canadian justice system faulted for cracks in system
The case of Fen MacIntosh, being heard Monday before the Supreme Court, raises questions about Canada’s system of bringing alleged sexual predators to justice.
The Toronto Star
22 April 2013
For 18 years, allegations of sexual abuse have swirled around Ernest Fenwick MacIntosh, levelled by a group of men who say the Nova Scotia businessman repeatedly molested them when they were young teens in small-town Cape Breton.
On Monday, after a long-delayed extradition from India, two convictions in Nova Scotia on 17 counts of sexual abuse (later overturned by a provincial court) and a litany of questions about why it all took so long, the case of “Fen” MacIntosh will be heard by the Supreme Court of Canada.
The Star investigates child sex tourism
For much of the nearly two decades since allegations first emerged against him, MacIntosh, now 69, has lived the life of an international jet-setter. Based in India between 1994 and 2007, he worked as a manager for a telecommunications company and successfully renewed his Canadian passport twice despite being a wanted man in Canada, where his name was on a countrywide arrest warrant.
To those who allege he destroyed lives through predatory abuse, the sequence of events that kept MacIntosh out of Canadian courts for so long represent a scathing indictment of the country’s justice system.
“When it comes to going after sex offenders and protecting children, Canada is a complete laughing stock,” says D.R.S., as he is identified in court documents, his identity protected by a court publication ban.
It was 1995 when D.R.S. first came forward to police with allegations of abuse by MacIntosh dating back to the 1970s, and he has remained a tireless advocate for MacIntosh’s arrest and prosecution.
“I did my part coming forward as a victim,” he says. “But I’m tired of holding the damn torch in my hand.”
MacIntosh, now living in Halifax after being extradited to Canada in 2007, declined an interview request from the Star.
His lawyer agrees with critics who say it took a long time for police and prosecutors to take action against his client, but for different reasons.
“What I would take from the fact that the Crown took . . . years to do anything with the file is not that Canadian sex offenders can wander throughout the world , but they didn’t size this up as being a case with much merit,” says Brian Casey, a veteran Nova Scotia criminal lawyer.
The narrow legal issue before the Supreme Court focuses on the Charter right “to be tried within a reasonable time” and who shoulders the blame for the endless delays in MacIntosh’s case: the authorities or the accused himself.
But for child rights advocates, the MacIntosh case illustrates wider problems of bureaucratic bungling and incompetence in cracking down on Canadians abroad who have been accused of serious sex offences at home .
Roz Prober, president and co-founder of Beyond Borders , is calling for a public inquiry into how MacIntosh was able to renew his passport in 1997 and again in 2002 — instances in which the Canadian government effectively assisted a fugitive from justice, she says.
“The disconnect in these (government) departments is amazing,” Prober said. “The right hand has no idea what the left hand is doing. I would characterize this as the system gone insane and a nightmare for victims.”
A Star investigative series recently exposed similar loopholes in the system designed to monitor sex offenders who have already been convicted and served their time, making it relatively easy for them to travel abroad to exploit children.
MacIntosh’s decades-long legal saga illustrates other loopholes and failings in the system.
MacIntosh was a sex offender long before the allegations now before the Supreme Court were first alleged; he was convicted twice, in 1983 and 1984, on charges involving teenage males who were above the age of the consent of 16 at the time.
His lawyer said in an interview that MacIntosh, “either misunderstood or was blind to the absence of the complete consent” of the teens involved and he received a suspended sentence in one case and a fine in the other.
A decade later, in December 1995, MacIntosh was charged with sexually abusing a minor by the RCMP in Nova Scotia after D.R.S. came forward with allegations MacIntosh had molested him when he was a child in Port Hawkesbury in the early 1970s.
Soon after, the RCMP discovered that MacIntosh had left for India the previous year.
But what should have been a simple case of returning a citizen overseas to face criminal charges in a Canadian court spiralled into a decade of fumbles, confusion and mishaps.
A warrant for MacIntosh’s arrest was issued on Feb. 21, 1996.
“Mr. MacIntosh advised that he had no intention of returning to Canada,” Const. Donald Joseph Deveau recounted in a sworn affidavit of an August 1996 phone call he had with MacIntosh in India. “I advised Mr. MacIntosh there was a warrant for his arrest.”
MacIntosh disputes that, arguing in his Supreme Court response that the phone line was cut off before the conversation ended and the Mountie did not give him the details of the charges or mention the arrest warrant.
A little more than a year later, in May 1997, MacIntosh walked into the Canadian High Commission in New Delhi and got his passport renewed without any problem.
Six months after that, Gar Pardy, then the director general of consular affairs for the Canadian Department of Foreign Affairs, picked up the phone in his Ottawa office.
D.R.S., the original complainant, was on the line, upset at the slow pace of action against MacIntosh.
Pardy began looking into the file and discovered MacIntosh wasn’t on the Passport Control List, an internal security tool containing information from Canadian law enforcement organizations that embassy staff use to flag applicants requiring in-depth review.
“The transfer of information from police forces is not as tight as we would like to think it is,” he said.
At Pardy’s urging, the federal passport office informed MacIntosh in India that his passport was cancelled and no longer valid.
“Without a valid passport, we assumed the Indians would kick him out,” Pardy said.
That didn’t happen.
MacIntosh hired a lawyer in Ottawa who went to federal court on his behalf to appeal the revocation in early 1998.
That’s when federal Crown prosecutors made a fundamental misstep that would have lasting repercussions, says Pardy.
They failed to present the judge with the evidence of MacIntosh’s charges, for reasons that Pardy — and MacIntosh’s alleged victims interviewed by the Star — don’t understand to this day.
Instead, a deal was struck in April 1998 that overturned MacIntosh’s passport revocation.
“The people charged with the responsibilities in this area have not measured up,” says Pardy.
In 2000, four more men came forward to accuse MacIntosh of sex crimes when they were younger; two more lodged complaints in 2001.
R.M.M., one of those complainants who also cannot be identified, says he was sexually abused between the ages of 14 and 15, a time when his parents were separating and he was vulnerable to MacIntosh’s sudden interest in him.
“I blame the lawyers, the government of the day, the passport office,” he told the Star last week. “It’s just a mess. He fell through a lot of cracks.”
By December 2001, according to the Crown’s Supreme Court filing, MacIntosh faced 37 counts of sexual abuse allegations against both minors and young adults — and a flood of new arrest warrants.
Yet, just a few months later, MacIntosh again received a quick and easy renewal of his passport in Delhi as he had five years earlier.
It is not clear how or why, in the face of a flurry of new criminal charges, that happened.
Federal regulations clearly state that “Passport Canada may refuse to issue a passport to an applicant who … stands charged in Canada with the commission of an indictable offence.”
Passport Canada refused to discuss the specifics of the MacIntosh case citing privacy reasons.
Spokesperson Béatrice Fénelon says that only beginning in 2004 did the department gain access to the Canadian Police Information Centre database as part of its security reviews for passport applications.
If officials who renewed MacIntosh’s passport in 2002 had such access, presumably his more than three dozen charges would have been easily accessible.
During his time in India, it was never hard for authorities to find MacIntosh.
According to his Supreme Court brief, MacIntosh “lived openly under his own name in New Delhi, three blocks from a regular member of the RCMP stationed in India as a liaison officer.”
“To the knowledge of the RCMP and the Crown, MacIntosh travelled back and forth [to Canada] using his Canadian passport,” his court filing says.
Casey says MacIntosh, like many expats, was a frequent guest at the Canadian High Commission, enjoying the facilities.
“He was there regularly to use their pool for his entire time in New Delhi,” Casey told the Star. “It’s pretty hard to say he is hiding out.”
It was not until July 2006, more than a decade after the RCMP had first located him in India, that Canadian officials finally made a formal request to Indian authorities for his extradition.
Indian police arrested MacIntosh on April 5, 2007, and he was deported back to Canada two months later.
Macintosh was eventually convicted in two separate trials in 2010 and 2011, receiving a four-year sentence for 13 counts of sexual abuse against two minors and, in a separate trial, 18 months for four other counts of sexual abuse against two males over the age of 14.
But the Nova Scotia Court of Appeal struck down the convictions, in part on the grounds of “unreasonable delay” and also questioned the reliability of some of the evidence by the victims in one of the trials.
In today’s hearing in Ottawa, the Nova Scotia Crown — supported by the Attorney General of Canada — will argue that MacIntosh can hardly blame the government for taking its time to bring him to trial since he knew of the sex offence charges against him at least since 1998, yet stayed in India until forced home by extradition.
His lawyer says that after MacIntosh had his “little flap” with Passport Canada in 1998, he assumed the charges against him had been dismissed.
“When he got the green light from the Passport Office, he didn’t think anymore of it,” Casey said.
Casey said MacIntosh has been without work since his return to Canada and his legal battles have swallowed his life savings.
D.R.S. and others who have made those accusations of child molestation are dispirited, dubious that the Supreme Court will be any more helpful to them than the rest of the justice system.
“I have no confidence this will be successful,” he said. “Eighteen years of waiting, waiting and more waiting has taken its toll on myself and many others. I want answers as to who helped MacIntosh.”
Former director general of consular affairs Pardy says regardless how the Supreme Court rules, the government has failed in representing alleged victims of sexual abuse.
“Sometimes I don’t think there’s any pavement in Ottawa. It’s all cracks.”