HALIFAX – Nova Scotia’s public prosecution service is asking the Supreme Court of Canada to hear an appeal against a former Cape Breton businessman who had sexual assault charges against him overturned.
Martin Herschorn, director of public prosecutions, said he decided to proceed with the leave to appeal after considering the legal findings of a lower court that tossed out all of the charges against Ernest Fenwick MacIntosh.
The Nova Scotia Court of Appeal dismissed the sexual assault convictions against MacIntosh late last year, arguing that he was not brought to trial in a timely manner.
“The focus is our provincial court of appeal’s decision with respect to the … right to trial within a reasonable time,” Herschorn said.
MacIntosh, who’s in his late 60s, was extradited to Canada from India in 2007 to face the charges after a complaint was made in 1995.
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.
The appeal court 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.
Herschorn said that ruling will also factor into his arguments to the Supreme Court, cautioning that he wouldn’t provide details until the application is filed with the court some time before Feb. 6.
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 examined incidents that allegedly occurred in private homes, a parked car, a motel and a laundromat in Nova Scotia between 1970 and 1975.
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. MacIntosh was arrested in April 2007.
The appeal court justices found that the trial judge wrongly placed the onus on MacIntosh to turn himself in and officials did not pursue him even though they knew where he was.