Editorial: Disturbing failings in criminal justice process

Those who enjoy tales of bureaucratic bungling will want to read the federal government’s Oct. 25 report into the case of Ernest Fenwick MacIntosh.

The report follows the Supreme Court of Canada’s dismissal of the Crown’s appeal in R. v. MacIntosh, a Nova Scotia Court of Appeal matter that considered a 14-year delay bringing a man who had spent several years in India to trial on sexual abuse charges. In that case, authorities extradited MacIntosh in 2007 despite laying charges in 1995. The appeal court ultimately quashed his conviction by a lower court and entered a stay on the basis of unreasonable delay.

The report on federal involvement in the case documents a litany of mistakes and misjudgments by a range of officials. While the effort to extradite MacIntosh began in 1997, for example, Nova Scotia officials stalled in providing the federal government with affidavits required by India. By the time they delivered the information a year later, it was still missing identification evidence linking MacIntosh to the alleged offences. By 2002, they still hadn’t provided it. At that point, prosecutors in Nova Scotia had decided they wanted to seek extradition on additional charges, which led federal officials to ask for first-person affidavits in relation to eight new complainants. In June 2003, Nova Scotia provided five sworn affidavits again without identification evidence. Around that time, responsibility for the file at the federal international assistance group had transferred to new counsel who didn’t appreciate the urgent nature of the matter.

Counsel didn’t review the file and didn’t use an administrative system that triggers a reminder to follow up on a matter.

There were other problems, including the fact that despite MacIntosh’s presence on a passport watch list, federal officials nevertheless issued the travel document to him in 1997 and renewed it in 2002. In the end, it took until June 6, 2007, for MacIntosh’s extradition to take place.

Lest anyone think it’s an isolated issue, people can also look to the Ontario case of R. v. Arsenault, a recent criminal matter stayed by the Superior Court due to an 11-year delay in bringing a man who had been living in South Korea to trial on an attempted murder charge. In that case, authorities also hedged on extradition over several years.

In the MacIntosh matter, the federal government has at least owned up to its mistakes and made a number of improvements to address them, including an electronic system for the extradition process that automatically flags files requiring attention. It’s good to see, and the government deserves some credit for addressing the issue in a transparent way. But as the report notes, the MacIntosh case has highlighted “failings in the criminal justice process and pointed to weak links in other institutions on which Canadians depend.” It’s a disturbing admission that, as Arsenault shows, doesn’t just apply to one case.

For more, see "11 years too long to bring someone to trial, judge finds."
Glenn Kauth

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