Federal Involvement in the Case of Ernest Fenwick MacIntosh

Extradition Process

What is “extradition”?

Extradition is the process where one country asks another country to hand over a person who is either accused or convicted of committing a crime in the requesting country. Canada currently has extradition treaties with 51 different countries, including (since 1987) India. All requests for extradition to and from Canada are transmitted through the International Assistance Group, within the Department of Justice Canada.

Who decides to have someone extradited?

The decision to extradite is typically made by the prosecution service responsible for prosecuting the person in question. In the MacIntosh case, it was the Nova Scotia Public Prosecution Service who made the decision to seek his extradition.

What is Justice Canada’s role?

Once a prosecution service decides to seek an extradition, the International Assistance Group helps them make that extradition request happen. It does this by advising the prosecutors on the steps involved and offering guidance on how to properly prepare the necessary documents. Once these materials are complete, the International Assistance Group then works with the foreign country involved to make sure that all of the requirements of the extradition treaty are met. When the International Assistance Group is satisfied that everything is in order, the extradition request is officially made – usually by sending a diplomatic note to the foreign country.

How long does it take?

Over the past decade, most requests have taken between six and 20 months from the time the prosecutors have decided to seek an extradition, to the time the fugitive is returned to Canada. In a typical year, Canada will make roughly 40 extradition requests, and receive around 160 requests from other countries – so on average, the International Assistance Group manages approximately 200 new extradition files per year. For a review of the number of extradition files handled by the International Assistance Group, the staffing of this group and the amount of time for the extradition process, see Annexes 1 and 2.

The Extradition of Ernest Fenwick MacIntosh

The Path to Extradition

The effort to extradite Mr. MacIntosh began in August 1997, when the Nova Scotia Public Prosecution Service contacted Justice Canada officials in the International Assistance Group. They were enquiring how to request Mr. MacIntosh’s extradition from India to stand trial for allegations of sexual assault dating back to the 1970s. Justice officials explained the process and raised an important point, one that would factor into the delay in the return of Mr. MacIntosh; they advised that, based on previous extradition requests, requests to India for extradition required first-person affidavits from witnesses that identified Mr. MacIntosh. For a full detailed chronology of all interactions between the Nova Scotia prosecutors and Justice Canada, see Annex 3.

A full year passed before the Nova Scotia Public Prosecution Service provided Justice officials with some documentation to support its request to extradite Mr. MacIntosh. Missing from the necessary documents was any identification evidence, such as a photograph, linking Mr. MacIntosh to the alleged offences. Justice officials needed this in order to transmit the extradition request to India. They conveyed this requirement to the Nova Scotia Public Prosecution Service five times over the ensuing fifteen months without receiving any evidence or assurance that it was being collected. Finally, in April 2002, Justice officials wrote to the Nova Scotia prosecutors, asking them to confirm if they still wished to pursue the extradition request.

Shortly after this enquiry, the Nova Scotia prosecutors reported significant developments in the case against Mr. MacIntosh: the RCMP had charged him with 41 new counts back in October and December 2001, which were the subject of a Canada-wide warrant. The Nova Scotia Public Prosecution Service now wanted to pursue extradition on a total of 43 charges, involving eight new complainants.

To advance the extradition process, Justice officials asked the Nova Scotia prosecutors to provide first-person affidavits from all nine complainants. Justice officials also spoke to the RCMP liaison officer in India who advised that to avoid future complications, these affidavits should be sworn before a judge. Justice officials then advised the Nova Scotia prosecutors accordingly. Four months later federal Justice officials were still waiting for the sworn affidavits. They expressed concern that the extradition matter now dated back almost five years.

In June 2003, the Nova Scotia Public Prosecution Service provided Justice officials with five sworn affidavits sworn before a notary public. The identification evidence, however, was still missing.

Delays by the International Assistance Group

Six years had now passed since the first Nova Scotia Public Prosecution Service contact, seeking advice on how to extradite Mr. MacIntosh. During that time, the federal government had initiated twenty-two contacts with Nova Scotia. Regrettably, in June 2003, a reassignment of the file within the International Assistance Group would then add a further eleven-month delay to a mounting timeline. The new counsel who received the file did not appreciate its urgent nature given the extent of time it had taken for Nova Scotia to respond to earlier requests for information. This was a mistake given the cumulative delays and mounting charges.

When the MacIntosh file was reassigned, counsel did not take steps to review the file and does not appear to have used an administrative system which triggers a reminder to follow up on the file. Also, counsel’s superiors did not have in place a system which would have enabled them to become aware of this error until many months later.

After a thorough investigation of this eleven-month delay, the conclusion is that there was serious human error and the absence of institutional systems to catch this mistake.

Scope of the Extradition Request

In May 2004, the Nova Scotia Public Prosecution Service sought to confirm whether a request for Mr. MacIntosh’s extradition had been made. Justice officials, back on the case, noted that a number of the complainants had still failed to identify a photograph of Mr. MacIntosh in their affidavits.

This was important due to the “rule of specialty.” Under this rule, the country handing over the person does so on the basis that the person will only stand trial for the charges that were identified and supported by evidence in the extradition request. This is a principle found in international law, the extradition treaty Canada has with India and Canada’s Extradition Act. Canada cannot unilaterally change this law.

As a result, Mr. MacIntosh would likely not have been prosecuted for any charges that were not included in the extradition request. It was therefore important for Nova Scotia authorities to determine all the charges which were to be included in the request before it was made.

In some instances, at the request of the country in which the person is being prosecuted, the “rule of specialty” can be waived by the foreign country after extradition has taken place. There is no way to be certain in advance of the success of a request for waiver, since it would be up to the foreign country to decide whether or not to waive specialty. Specialty is generally only waived where new charges come to light after a person has already been extradited.

In this case Nova Scotia knew there were nine complainants. In June of 2004, while they were still gathering evidence on some charges, Nova Scotia indicated that they were considering extradition on charges relating to only five of the nine complainants. Federal Justice officials were prepared to go forward with whatever number of charges that Nova Scotia wanted to proceed with, as long as there was sufficient evidence supporting those charges. The issue of waiver of specialty never arose in any discussions.

The Nova Scotia Public Prosecution Service Continues to Gather Evidence

In January 2005, the Nova Scotia Public Prosecution Service was still collecting additional evidence needed to finalize the request. In March 2006, they informed Justice officials that they were working on the remaining affidavits.

Final Request

Finally, the Nova Scotia Public Prosecution Service provided their formal request for Mr. MacIntosh’s extradition in May 2006. The request now covered all nine complainants. The package contained some complainant affidavits. As well, it contained the affidavit of a police officer summarizing the evidence of other alleged victims, and included identification evidence from a photo line-up. The Nova Scotia prosecutors said that this was the best evidence they could provide, and Justice officials agreed to proceed with the request.

In July 2006, Justice officials sent the request to what was then the Department of Foreign Affairs and International Trade, asking them to prepare and send the formal diplomatic note to India, seeking Mr. MacIntosh’s extradition.

Once the formal request to India was made for extradition, it moved swiftly through the Indian system. On July 14, 2006, the Canadian High Commission in New Delhi sent the diplomatic note, formally requesting Mr. MacIntosh’s extradition from India under the treaty for prosecution on 22 charges of indecent assault and 21 counts of gross indecency, for allegations spanning the period from September 1, 1970, to September 1, 1975.

On April 5, 2007, India arrested Mr. MacIntosh in response to Canada’s request for extradition. On May 22, 2007, India granted his extradition on the charges for which his extradition was sought, and he was turned over to Canadian authorities for removal on June 6, 2007. On June 8, 2007, Mr. MacIntosh made his first appearance in Port Hawkesbury Provincial Court.

The above chronology reveals that the main delay arose as a result of the extradition process in Nova Scotia, as acknowledged in the Nova Scotia Report. As is clear from Annex 3, Justice Canada officials made repeated enquiries of the Nova Scotia Prosecution Service, fourteen of which are not detailed in their report. Eleven months of delay, however, are attributable to federal Justice officials who should have responded faster to the information provided by the Nova Scotia Public Prosecution Service, when it finally arrived in June 2003.