Yellowknife (Mar 03/06) - Justice Canada says a planned restorative justice approach to deal with an October 2004 incident between RCMP Const. Scot Newberry and Devon Herback has been halted.

WHAT HAPPENED: Const. Scot Newberry arrested Devon Herback outside a downtown nightclub in October 2004. During the incident, Herback was knocked unconscious and his leg was broken. He was charged with assault and resisting arrest. In territorial court last March, Judge Brian Bruser dismissed the charges and accused Newberry of using excessive force during the arrest. RCMP launched an investigation in April and forwarded the information to Justice Canada officials in Whitehorse. In early February, Justice Canada announced that although there was enough evidence to file a criminal charge, all parties had agreed to undertake a restorative justice approach. Although neither Newberry nor Herback has spoken directly with Yellowknifer, sources close to each suggested the two had not agreed to the proposal, throwing the matter into confusion.

In early February, Justice Canada said it planned to resolve the case during a Feb. 23 session. That did not take place and the process seemed to be in limbo. Herback's aunt said her nephew did not agree to the restorative justice plan, casting a cloud of confusion over what was happening.

"At this point, it is no longer going to be taking place at this point in time," said Lise Canton, Justice Canada spokesperson.

Canton said the department learned through media reports that Herback appears to have reconsidered his decision on how he wanted to proceed on the matter.

"It is absolutely his right to do that, but there had been no direct contact from him."

Canton said the matter was referred to the criminal justice branch of the Alberta attorney general's office on Feb. 28 for a new legal opinion.

"Now we are in that same position again that we need that independent, arm's length advice," Canton said.

She said all of the parties involved in the matter, including senior officials of the territorial government, have been informed of this development.

Thebacha MLA Michael Miltenberger said he's glad to see an effort to end the confusion. "(Justice Canada) committed themselves, made lots of public statements and had backed themselves into a corner," said Miltenberger, who represents Herback's home community, Fort Smith. "The community is confused, as is the family and most of us."

Before learning of the Justice Canada announcement, Miltenberger said he had been in contact with Justice Minister Brendan Bell on behalf of Herback and his family, trying to clarify the situation.

"Everything they've done so far smacks of secrecy and defending and closing ranks that everybody worries about when it comes to justice," said Miltenberger.

"The family is feeling very isolated and abandoned by the justice system. They want to see this resolved."

Territorial deputy minister of justice Don Cooper said he had discussions with the office of Stuart Whitley, senior regional director for Justice Canada in Whitehorse on Thursday.

"They are moving towards a resolution of it," Cooper confirmed.