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.
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.”