Yellowknife (Apr 19/06) - A legal opinion from the Alberta Attorney General's office says charges against a Yellowknife police officer have little chance of succeeding because the case has been mishandled.

On Tuesday, Justice Canada said it would not recommend charges against RCMP Const. Scot Newberry in connection with the October 2004 arrest of Devon Herback.

Herback was arrested and charged with assaulting a police officer and obstruction of justice.

He was acquitted by Territorial Court Judge Brian Bruser in March 2005, who ruled that it was Newberry who attacked Herback.

During the incident outside a downtown bar, Herback suffered bruises to his face and a broken leg.

In a press release, Justice Canada said it would go by the Alberta legal opinion.

"The conclusion reached by the Federal Prosecution Service after considering all of the circumstances but particularly the comments of Judge Bruser and the two independent legal opinions, was that a prosecution should not proceed.

"Mr. Herback and Const. Newberry have been informed of that decision."

Legal counsel from the Alberta criminal justice division argued that: "If charges were now to be laid in this case, the Crown could well expect arguments of 'abuse of process' to be made by the defence in relation to two particular aspects of the investigation: pre-charge delay and the attempt at diversion."

The abuse of process defence could stem from the fact the Crown took 17 months to reach this decision, and a promise that Newberry would not face criminal charges if he agreed to undertake a restorative justice process.

The opinion questioned why the case wasn't acted upon earlier.

"Interestingly, the Crown did not appear to have thought it necessary to refer the matter to the police to investigate whether Const. Newberry should be charged criminally, even though the Crown had been aware of the judgment (and the trial judge's critical remarks towards Const. Newberry) since the day it was released, March 22, 2005."

The legal opinion also said a conviction is unlikely because there's a reasonable doubt about what happened during the arrest.

"If Const. Newberry were to be charged, the evidence would be substantially the same as in Mr. Herback's trial. Can the Crown truly say that there is not a reasonable doubt as to what actually happened in this case?" the lawyer stated.

This was the third time the case has changed hands. After a lengthy police investigation, the case was forwarded to Whitehorse Crown counsel Stuart Whitley. He sent the case to Vancouver lawyer Peter Leask, who said that while there was enough evidence to charge Newberry, it would be better to settle the matter through a restorative justice approach.

That was supposed to happen Feb. 23, but never took place because Herback said he did not agree to the process.

The document goes on to say that Newberry's conduct was not condoned because of the conclusion of the analysis.

"I am aware that Mr. Herback intends to file a complaint against him, and he may choose to take civil proceedings against him."

Herback's aunt, Denise Yuhas, confirmed last week that Herback filed a complaint against Newberry.

It is currently under investigation by RCMP.

Justice Canada's decision did not sit will with Yuhas, who has acted as spokesperson for the family.

"If you do something, hide out for 18 months and nobody will probably be able to convict you," she said from Fort Smith.

She wondered if that was the type of option a regular citizen would be given.

She said that if Newberry's leg had been broken in the incident, it's likely Herback would "be making licence plates somewhere right now."

The new legal opinion did suggest RCMP could pursue disciplinary action against Newberry, particularly with respect to testimony that Newberry asked Herback during the incident: "So you like to beat up your girlfriend?"

"If the comment was made, it demands some disciplinary response from the force," the legal opinion stated.

Despite Justice Canada's decision, Newberry isn't totally out of the clear.

Yellowknife RCMP Superintendent Rick Roy announced late Tuesday that a press conference will be held today (Wednesday) at 3 p.m. to announce his decision with regard to the laying of criminal charges against Newberry.

- with files from Paul Bickford