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An independent external review of now-retired Royal Newfoundland Constabulary officer Tim Buckle’s involvement in the Sean Kelly case has concluded there were reasonable grounds to charge Buckle with obstructing justice.
However, James Maher’s report does not recommend a charge being laid, as he also concluded there is no reasonable likelihood of a conviction because there is reasonable doubt the former sergeant based in Corner Brook intended to commit the offence.
Maher, a former Crown prosecutor in Newfoundland and Labrador, submitted his report to Deputy Minister of Justice and Public Safety Heather Jacobs in late September.
The Western Star obtained a copy of the report Wednesday morning.
Maher’s review included an examination of the RNC’s investigation into the case and its internal disciplinary review of Buckle’s involvement, as well as an external investigation conducted by the Ontario Provincial Police into how the RNC handled the investigation into the actions of one of its own members.
Kelly was convicted in February 2015 of making indecent phone calls to a Corner Brook woman while on duty in the city in October 2012.
Shortly after the woman filed her complaint with the RNC, Buckle — who was Kelly’s supervisor at the time — called him and told Kelly that he had better come up with an explanation of who had called the woman twice on the police-issued cellphone in Kelly’s possession.
Kelly was also subsequently convicted of public mischief for trying to shift the blame for making the calls to an informant Kelly had been working with on the streets of Corner Brook. Kelly said he had loaned his cellphone to that person, whose identity is protected by a publication ban, and suggested the informant must have made the calls.
Maher’s report concluded there was no reasonable grounds to have charged Buckle with counselling the commission of public mischief. He noted that, although Buckle’s conversation with Kelly may have planted the seed for Kelly to try to incriminate someone else, there is reasonable doubt that Buckle had deliberately encouraged Kelly to do so.
Maher’s report reiterates the conclusions of three previous reviews of Buckle’s actions involving the Kelly case.
The RNC’s internal investigation concluded in June 2013 that complaints about Buckle’s actions were unfounded and there were no breaches of legislation or policies.
The provincial director of public prosecutions, in a report filed in June 2015, concluded the RNC’s investigation was inadequate. It found it was likely Buckle had intended to obstruct justice by calling Kelly and there were grounds for a charge, but concluded the lack of notes taken by other officers involved would raise a reasonable doubt about his intentions and there was no reasonable likelihood of a conviction at trial.
The director of public prosecutions report concluded there was no basis on the facts of the case to have charged Buckle with counselling Kelly to commit public mischief.
The report from the investigation conducted by the Ontario Provincial Police, which was filed in November 2015, concluded the case against Buckle met the objective standard required to lay a charge, but not the subjective standard to establish reasonable grounds to do so.
The director of public prosecutions reviewed the Ontario Provincial Police review and concluded there was a reasonable likelihood of conviction for both charges of obstructing justice and counselling the commission of public mischief. However, when the RNC referred that opinion of the director of public prosecutions to the Ontario Provincial Police, the Ontario Provincial Police concluded it still lacked reasonable grounds to charge Buckle.
When contacted Wednesday, Buckle would not do an interview, but did provide an emailed statement about Maher’s report. Buckle stated he believes there is no reasonable grounds for a charge in the first place, let alone a chance of convicting him of wrongdoing.
He noted that, by the time he made the call, Kelly had already been contacted by the original investigator and notified of the complaint received, which Buckle said was normal procedure in an investigation where evidence is preserved electronically by the telephone company.
“Sean Kelly was unable to interfere or destroy any relevant evidence,” Buckle said in his emailed response. “I provided Sean Kelly no new information that he didn’t possess prior to my call. I am satisfied that this report finds there to be no likelihood of a successful prosecution due to the lack of evidence of any nefarious intent on my part.
“It is truly unfortunate this matter has been ongoing for nearly six years and at considerable cost to taxpayers, simply due to a lack of competent decision-making by senior RNC management.”
The Western Star also requested an interview with the Department of Justice and Public Safety Wednesday morning. No one was made available for an interview, but the department provided an emailed reply.
The department said civilian oversight is necessary to maintain public confidence in the administration of justice and delivery of policing services in the province. With these independent reviews, the department’s next steps are determined by the results of the investigation and conclusions on whether charges are warranted.
“Typically, charges would be laid in circumstances where the report makes this recommendation,” read the email. “In cases where charges are not recommended, there are no further steps required from a prosecutions perspective. That said, information contained in the report can potentially be used by the respective police agency to determine their next steps from a human resource perspective.”
The Western Star requested an interview with the Royal Newfoundland Constabulary, but no one was made available as of deadline.
Kelly’s matter before the courts are still not finished. He was charged with another count of making indecent phone calls involving a different woman. That matter will next be called at provincial court in Corner Brook for election and plea Dec. 18.
He is also awaiting an appeal of his conviction and sentence in the Newfoundland and Labrador Court of Appeal.
Kelly has already lost his appeal of Judge Wayne Gorman’s provincial court decision regarding conviction and sentence. He has since appealed that decision of Supreme Court of Newfoundland and Labrador Justice David Hurley to uphold Gorman’s decision.
Kelly has yet to serve any of the 10 months given to him by Gorman.