Crown may appeal acquittal of Fenwick MacIntosh
Published Thursday, December 8, 2011 5:24PM AST
HALIFAX - A former Cape Breton businessman found guilty of sexually abusing teenage boys in the 1970s had his convictions overturned Thursday because of a long delay in bringing him to trial.
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 decades.
Justice Duncan Beveridge overturned those convictions as well as later ones, finding in the unanimous decision with two other judges that MacIntosh's "right to be tried within a reasonable time was infringed."
Brian Casey, MacIntosh's lawyer, said he was satisfied with the decision but added that it came at a great price to his client, who is now in his late 60s and without work.
"Of course, we're delighted with the acquittals," he said. "It's too bad that it's taken 4 1/2 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."
The justices also found that the trial judge failed to properly deal with questions of credibility of the complainants and misunderstood some of the evidence used to convict MacIntosh.
He 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 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.
The trials detailed incidents that allegedly occurred in private homes, a parked car, a motel and a laundromat in Nova Scotia, including Halifax, Port Hawkesbury and Mulgrave, between 1970 and 1975.
More than a decade had passed by the time the RCMP received complaints from nine men that they were sexually abused by MacIntosh as boys. By the time the men came forward, MacIntosh had left Canada to set up a business and residence in India.
A Mountie who investigated the complaint said he first called MacIntosh in New Delhi in January 1996 to tell him there was a warrant for his arrest.
MacIntosh claimed the phone went dead before he heard of the warrant and, although he said he was "curious," never called back. In 1997, he was told his passport wasn't being renewed due to the criminal charges.
Extradition proceedings started in 1997 but were marred by delays. New allegations of abuse came forward in 1999 and prosecutors halted the extradition as police checked into them.
It wasn't until 2006 that the extradition request was forwarded to India, with MacIntosh being arrested in April 2007.
The Appeal Court judges found that the trial judge wrongly placed the onus on MacIntosh to turn himself in. The judges also wrote that authorities were not diligent in bringing him to trial.
"There were lengthy periods where the authorities, despite knowing exactly where the appellant was located, did nothing to pursue him," the judges state in the 62-page ruling.
Crown attorney Jennifer MacLellan said the complainants were "disappointed and frustrated" with the decision. She said she would review the ruling to determine if they would try to appeal it to the Supreme Court of Canada.
She argued that MacIntosh was aware of the situation in Canada and should have addressed it.
"We're looking at the actions of Mr. MacIntosh, but the Nova Scotia Court of Appeal didn't agree with us," she said. "It's disheartening."
During the second trial, MacIntosh testified that 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. The man testified that he was about 10 when MacIntosh touched him inappropriately.