A lawyer representing Ernest Fenwick MacIntosh, who is accused of sexually abusing six boys in Cape Breton in the 1970s, argued in a Nova Scotia court Wednesday that a judge should permit MacIntosh to file a counterclaim against his accusers for defamation.
MacIntosh was convicted during criminal trials in 2010 and 2011 on 17 counts related to child sex abuse involving male complainants. The convictions were later overturned when it was ruled that it took too long to get MacIntosh to trial. That decision was upheld by the Supreme Court of Canada.
Six men then filed a civil lawsuit against him in 2019, and in December 2021, MacIntosh filed an application to amend his notice of defence and file a counterclaim of defamation against them.
MacIntosh has denied allegations of sexual abuse or assault, saying any sexual interactions were consensual and occurred when his accusers were of age.
In a separate case, MacIntosh was convicted in 2015 of sexual abuse in Nepal and served time in prison in that country.
In Nova Scotia Supreme Court in Port Hawkesbury on Wednesday, the lawyer representing MacIntosh, Michelle Kelly, argued that if the six plaintiffs are allowed to sue based on alleged incidents from the 1970s, it would be "unfair" not to let MacIntosh pursue a defamation claim.
Daniel Naymark, one of three lawyers representing the six plaintiffs, argued that all the allegedly defamatory statements — which MacIntosh claims were made to RCMP investigators, the media and politicians, including former MP Peter MacKay, and which include portions of the civil lawsuit's statement of claim — took place too long ago to allow a defamation suit.
In Nova Scotia, a victim of sexual assault is permitted to file a civil lawsuit against the perpetrator regardless of how long ago the assault took place. It was the public outcry about the criminal case involving MacIntosh that prompted the legislative change to remove the statute of limitations for civil lawsuits.
In response to Kelly's assertion that not allowing a defamation suit to proceed would be "unfair," Naymark said "there is no unfairness exception" to the statue of limitations for defamation cases.
Kelly also argued that some sentences in the accusers' statement of claim are "frivolous and vexatious" and are merely intended to harm and embarrass MacIntosh. Since those statements are unnecessary, they should not be protected from a lawsuit by the privilege normally given to court documents, Kelly argued.
Accusation of bad faith
In his arguments, Naymark suggested that MacIntosh brought forward his motion to allow a counterclaim against his accusers out of bad faith, for a tactical purpose of harassing the plaintiffs and to obstruct the progress of their civil lawsuit against him. Naymark said MacIntosh has ignored requests to file certain court documents in an effort to delay the proceedings.
Naymark also said his team has had difficulty reaching MacIntosh, who has retained a lawyer to pursue his defamation claim, but is representing himself on other aspects of the civil case.
MacIntosh, who appeared at the hearing via video conference, told Justice Patrick Murray that his delays in producing documents are because he is a cancer patient who undergoes chemotherapy treatment once a month, he was very ill with COVID-19 and was affected by the lockdowns. His lawyer said a lack of action by counsel was also a factor in the delays.
Murray will review the lawyers' submissions and make a decision in the coming weeks.
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