Cape Breton Post
12 December 2011
SYDNEY — Canada’s former head of consular affairs believes there should be a federal inquiry into the handling of historic sexual abuse charges against Ernest Fenwick MacIntosh.
Gar Pardy is the person who put forward the request in 1997 that MacIntosh, a former Strait area businessman who was then living in India, have his Canadian passport revoked. That would have forced MacIntosh to return to Canada to face two counts of indecent assault and gross indecency, heading off the need to extradite him.
The Nova Scotia Court of Appeal last week quashed MacIntosh’s convictions on 17 counts of indecent assault and gross indecency, and found that MacIntosh’s rights had been infringed upon by the lengthy delay in pursuing his extradition and in bringing the matter to trial.
“It’s just mind-boggling that after all this time we end up with, it’s not absolution, but it just demonstrates the ineptness of the prosecution and judicial system in this country,” Pardy said. “I couldn’t think of a worse thing to happen, quite frankly.
“This is really an illustration that there is no justice for (the complainants) in terms of the way that the legal system operates.”
The appeals court also found issues with evidence presented at the first of MacIntosh’s two trials and said it would have ordered a new trial if it hadn’t ordered a stay.
The first charges were laid against MacIntosh, now 68, in 1997. Additional complainants subsequently came forward and he was ultimately extradited in 2007. He went to trial last year on 36 counts involving six men who were youths in the 1970s. MacIntosh testified he had sexual contact with some of the men when they were old enough to consent under the laws at the time, and denied any sexual contact with the others.
Given the number of issues raised over the years, and their complexity, Pardy said based on his own experiences he believes an inquiry is the only way to determine precisely how things went so horribly wrong and to hold those responsible to account.
There is some question as to whether the province or Ottawa should be the party to hold an inquiry, he said, because there appear to have been problems at both levels. But he said he believes it should be done at the federal level, with the province also taking part as an interested party.
“You can spread the mistakes around to a certain extent, I think,” Pardy said.
Pardy has followed the case over the years and has been in intermittent contact with the original complainant in the matter, who can only be identified as DRS. He said DRS worked to try to make sure the matter was pursued by authorities since making his complaint to police.
The Crown has 60 days to decide whether to appeal the decision to the Supreme Court of Canada. Pardy said he hopes the Crown will seek leave to appeal, noting there are various layers to the case that should be tested at that level, including international legal questions, the fact that the complainants were youths at the time of the alleged incidents and the amount of time that can be required to investigate sexual abuse allegations.
“To apply a strict interpretation of the delay of justice principle is maybe unwarranted in these cases, and God knows there’s enough of them out there these days to kind of take a look at it.”
The effort to revoke MacIntosh’s passport was bungled, with the federal Crown never presenting to the federal court documentation that it had requested confirming the criminal charges against MacIntosh, even though the court gave it time to do so. A Cape Breton Post investigation earlier this year confirmed that the Crown had been faxed a copy of the warrant for MacIntosh’s arrest well in advance of a scheduled May 1998 court hearing that never went ahead. The Post discovered that five weeks before the hearing date, the Crown consented to MacIntosh withdrawing his application for a judicial review of the passport revocation, letting an interim stay of proceedings issued by the court stand.
All of the evidence presented as part of MacIntosh’s passport revocation challenge was presented by the defence, with no submissions by the Crown.
Both the federal Department of Justice and Passport Canada have refused to talk about the specifics of the MacIntosh case.
The appeals decision makes the federal Crown’s inability to successfully revoke MacIntosh’s passport almost 14 years ago that much more significant, Pardy said.
“You’re talking about maybe shaving 10 years from the prosecution if they had gone back into court with information that was available to them that the judge was asking for,” he said.
Victims outraged at acquittal of Fenwick MacIntosh
09/12/2011 5:41:56 PM
Three men who reported sexual abuse at the hands of former Cape Breton businessman Fenwick MacIntosh are speaking out after his convictions were overturned yesterday.
MacIntosh was found guilty of sexually abusing teenage boys dating back to the 1970s but the Nova Scotia Court of Appeal found that he was not brought to trial in a reasonable time after he was extradited from India in 2007 to face the charges that surfaced in 1995.
One of his victims says he is angry at the decision and feels re-victimized by the court.
“It is bad enough being victimized by a person, but being victimized again by the justice system? It’s not a very good feeling,” says the 56-year-old man, whose identity is protected by a court-ordered publication ban.
The man, who we will address as “Tom,” testified that he was molested as a child and his testimony helped to convict MacIntosh on multiple counts of sexual assault.
“Tom” says he still carries the scars from what he says were repeated incidents of sexual assault more than 40 years ago.
He says he suffers from depression and has dealt with two failed marriages. Now the acquittal has left “Tom” questioning whether he should have ever filed a complaint against MacIntosh in the first place.
“You have to be so precise and so detailed on everything that was done to you,” he says. “And then to have it thrown out? It doesn’t make any sense.”
The case against MacIntosh was started more than 15 years ago by another victim, who says he was assaulted by MacIntosh more than 100 times.
The 50-year-old man, who we’ll call “George,” says he is frustrated that his long battle for justice has been lost on a legal technicality.
“Myself and the other victims stood up to the plate and tried to put a stop to this guy molesting a bunch of little children, not only in Canada but overseas,” he says. “It took many, many years. Our system let everyone down.”
A third accuser named “Ralph” says he too is “devastated” by the decision.
“It was just the worst news I could get about this case, considering how far it goes back,” he says. “Thirty-eight years ago when the abuse happened, 17 years ago when I gave my first statement, then two to four times in court.”
Meanwhile, “Tom” says he is planning a public rally to be held next month so he can raise awareness about the sexual abuse of children. He also wants a publication ban on his identity to be lifted so he can champion a cause he says has been let down by the legal system.
“Tom” says that he and the two other victims CTV News spoke with have all kept in touch since the MacIntosh trials began, and that now they share an even stronger bond in their shared disappointment that MacIntosh has walked free.
With files from CTV Atlantic’s Randy MacDonald
Judge tosses sex abuse convictions over long delay
The Canadian Press
Date: Thu. Dec. 8 2011 7:24 PM ET
Ernest Fenwick MacIntosh is escorted by sheriffs as he heads from Nova Scotia Court of Appeal in Halifax on Thursday, Oct. 7, 2010. (Andrew Vaughan THE CANADIAN PRESS)
HALIFAX — A Cape Breton man convicted of sexually abusing boys decades ago has been acquitted of all of the charges against him because of the long delay in bringing him to trial, a judge ruled Thursday.
The Nova Scotia Court of Appeal found that Ernest Fenwick MacIntosh was not brought to trial in a reasonable time after he was extradited from India in 2007 to face the charges that surfaced in 1995 and dated back to the 1970s.
Justice Duncan Beveridge overturned all of the convictions, finding in his 62-page decision that MacIntosh’s “right to be tried within a reasonable time was infringed.”
Brian Casey, MacIntosh’s lawyer, said he was pleased with the decision but that it came at a great price to his client.
“Of course, we’re delighted with the acquittals,” he said.
“It’s too bad that it’s taken four-and-a-half years of Mr. MacIntosh’s life and his life savings to get here when the matters shouldn’t have proceeded in this fashion in the first place.”
MacIntosh was found guilty in July 2010 on 13 of 26 charges of indecent assault and gross indecency — almost 15 years after the allegations surfaced.
MacIntosh, who’s in his late 60s, was sentenced to four years in prison in his first trial, but given credit for two years’ time served.
He was later sentenced to 18 months in jail on separate sex-related charges involving other boys in the 1970s.
More than a decade had passed by the time the RCMP received complaints from men alleging they were sexually abused by MacIntosh as boys in Cape Breton. By the time the men came forward, MacIntosh had left Canada to set up a business and residence in India.
During the second trial, MacIntosh testified he had consensual sex with two of the men he was accused of abusing when they were teens. The men said the sexual contact was not consensual.
One of the men said he was about 16 or 17 years old at the time, while the other man said he was 15.
MacIntosh denied having any sexual contact with the third complainant, who testified he was about 10 when MacIntosh touched him inappropriately.
The Crown was not immediately available for comment.