Yellowknife (Apr 21/06) - A Yellowknife Mountie has been reprimanded but will not face criminal charges in the 2004 arrest that resulted in a man being knocked unconscious.

On Wednesday, Supt. Rick Roy, officer-in-charge of criminal operations for the RCMP in the Northwest Territories, confirmed a decision by Justice Canada that charges should not be laid against Const. Scot Newberry.

"As the officer with the ultimate responsibility for this decision, I have to be convinced that Const. Newberry recognized that his behaviour in this instance was not professional and was inappropriate, that the consequences of this incident were appropriate and productive and the officer has learned and improved as a result of this lesson and that the situation is not likely to occur again," Roy said.

On Oct. 30, 2004, Const. Scot Newberry punched Fort Smith resident Devon Herback during an arrest outside a Yellowknife bar, knocking him unconscious. During the incident, Herback suffered a broken leg, although it's not clear whether that occurred when he fell to the ground or tried to kick out the window of the police cruiser.

Herback was charged with assaulting a peace officer and obstructing a peace officer but those charges were dismissed in March 2005 by Territorial Court Judge Brian Bruser.

In his written judgment, Bruser called the arrest illegal and accused Newberry of attacking Herback.

Police weren't informed of the judgment until April 5, even though Crown counsel had received it more than a week earlier.

Since then, there was a lengthy police investigation followed by three legal reviews. An attempt to resolve the matter through restorative justice fell apart in February.

The latest legal review, by the Alberta Attorney General's department said an assault charge had little chance of succeeding.

The legal opinion said that charges should not be laid because there is a reasonable doubt about what happened during the arrest and that Newberry could successfully challenge the charge by citing abuse of process.

That would include the length of time plus the fact Newberry was promised no criminal charge would be laid if he agreed to restorative justice.

Roy said police believe this is the appropriate course of action.

"The public is rightfully sensitive about the behaviour of police officers and this sensitivity means we must do everything we can to demonstrate that our investigation is complete and fair," Roy said.

When asked why police didn't look into the arrest in 2004, Yellowknife detachment commander Insp. Roch Fortin said there was no sign that Herback's leg was broken.

"He was walking under his own power," said Fortin. It wasn't until the issue was brought up in court that police were aware Herback had a broken leg.

As a result of the case, Roy said Newberry was reprimanded and ordered to undergo counselling and training on grounds for arrest, appropriate use of force and presentation of evidence in court.

"In the end, I have confidence that Const. Newberry is a professional police officer and having gone through this experience, he is certainly a better police officer," said Roy.

Because of this case, a Crown attorney has been named a liaison to improve communication between the RCMP and the federal prosecutors office.

Newberry has been back on regular duties since February.

He still faces an investigation by the public complaint commission after Herback laid a complaint at the Fort Smith RCMP detachment several weeks ago, said Fortin.

"I am following up on the complaint he allegedly made against Const. Newberry," Fortin said.

"We had a conversation with him and we will have a meeting very shortly to discuss the matter," Fortin said.

When a public complaint is received, it must be acknowledged in writing within 45 days and updates given to the complainant every 30 days thereafter until it is concluded, Roy said.

"We're hopeful that we can provide a quick response to Mr. Herback," Roy said.