Yellowknife (Mar 08/06) - The RCMP officer under investigation after being accused of using excessive force during an arrest in 2004 says the long, drawn-out matter is taking a toll on both him and his family.

And despite confirmation last week from Justice Canada in Vancouver that all parties were made aware of the decision to halt the restorative justice to settle the case, Const. Scot Newberry says he only found out about the decision after reading Yellowknifer Friday.

"I'm frustrated. I was never notified by the Department of Justice at all and my lawyer has never been notified," said Newberry, who is speaking out for the first time.

"This is having a huge effect on my family."

During an arrest outside a downtown pub, Devon Herback was knocked unconscious, sustained a broken leg and facial injuries.

Charges against Herback were dismissed in territorial court last March.

"There is no doubt that what occurred was excessive force in the course of an unlawful arrest," Judge Brian Bruser said in his March 22, 2005 decision.

"The accused committed no crime. He was enjoying the protection afforded by our laws, and while under the umbrella of the rule of law, Const. Newberry attacked him.

"This is what occurred. Of this, I have no doubt," Bruser concluded.

Afterwards, the RCMP launched an investigation and forwarded the information to the Department of Justice regional Crown counsel office in Whitehorse on Nov. 15, 2005.

Private defence counsel Peter Leask QC, provided the analysis and concluded that while charges could be laid against the officer, he recommended, subject to the wishes of Herback and his family, a restorative approach be taken to resolve the matter.

Stuart Whitley, senior regional director for Justice Canada in Whitehorse, confirmed early February that the restorative justice approach was agreed to by Herback and his family and was scheduled for Feb. 23 in Yellowknife.

Newberry said he is dismayed that the process is again delayed.

"I was told it was over and done with. I was ready to show up on that day (Feb. 23)," Newberry said.

Denise Yuhas, Herback's aunt, has told Yellowknifer during several interviews that her nephew had not decided to move ahead with restorative justice and was surprised to learn of the Feb. 23 meeting.

Last week, Lise Cantin, a Justice Canada spokesperson, told Yellowknifer that because of no direct contact from Herback, the matter was referred to the criminal justice branch of the Alberta attorney general's office on Feb. 28 for a new opinion.