Yellowknife (Feb 03/06) - An RCMP officer accused of attacking a man outside a downtown nightclub in Oct. 2004 will not face criminal charges.

Instead, Const. Scot Newberry will undergo restorative justice, says Stuart Whitley, the senior regional director for Justice Canada in Whitehorse.

Newberry has been under investigation and on administrative desk duties since this past April in relation to an Oct. 30, 2004, incident between himself and Devon Herback occurred outside the Raven Pub in Yellowknife.

The incident was only brought to light after Yellowknifer published details of a March 2005 judgment by territorial court Judge Brian Bruser in which Herback was acquitted of assault and resisting arrest. In his judgment, Bruser said Newberry "attacked" Herback and used "excessive force" during the arrest.

Herback was knocked unconscious and broke his leg during the incident.

"Mr. Herback has generously agreed to a restorative approach and is supported in this by his family," Whitley said of the decision released Thursday.

Yellowknifer has been unable to contact Herback for comment.

Whitley said the restorative justice process will occur Feb. 23 in Yellowknife.

Since the incident, an internal investigation has been underway and following that, an analysis by Vancouver lawyer Peter Leask was conducted.

"In his recommendations, Mr. Leask suggested that there be a restorative approach taken, subject to the wishes of Mr. Herback and his family," Whitley said.

Newberry and the RCMP have agreed to participate in the process and agreed to make an apology to Herback in person, Whitley said.

"In addition, Const. Newberry will submit to the internal discipline proceedings of the RCMP based upon his acceptance of the trial judge's findings of excessive use of force against a citizen.

"From a prosecution standpoint, we expect that this will bring an end to this matter," Whitley said.

The principles of restorative justice permit the examination of a problem to determine whether issues between parties can be put right in a manner that does not necessarily involve the adversarial nature of the criminal justice system.

"Such a process almost always requires the consent of all the parties to participate in the dispute," Whitley said.

The process requires Newberry acknowledge he was wrong and to submit to RCMP discipline.

Herback will be exonerated by the RCMP.

The process will take place in the form of a circle between the parties.

While the event will be private, the results will be made public.

David Gilbert, communications strategist for the Yellowknife RCMP detachment, said no comment about the matter is forthcoming at this time. "We are waiting for things to unfold on the 23rd and are following the Department of Justice's lead on this," Gilbert said.