Yellowknife (Mar 06/06) - A Fort Smith man injured in an incident with a Yellowknife police officer in October 2004 will have to wait a little longer to see where the case is headed.

Devon Herback was knocked unconscious and his leg was broken on Oct. 30, 2004, when he was arrested by RCMP Const. Scot Newberry.

Herback was charged with assault and resisting arrest, but those charges were dismissed in territorial court in March 2005.

When he dismissed the charges, Judge Brian Bruser accused Newberry of attacking Herback and using excessive force.

After a nine-month investigation and review, federal justice officials ruled in early February that while there was enough evidence to file criminal charges, the case would be resolved through a "restorative justice" process.

When that didn't take place and confusion arose over whether the men had agreed to the proposal, the case was in limbo.

Last week, justice department spokesperson Lyse Cantin said it has sent the file 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," Cantin 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.