Gerard Quinlan Appellant and: RNC PUBLIC COMPLAINTS COMMISSION RESPONDENT, 2019 NLSC 118

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Quinlan v. RNC Public Complaints Commission , 2019 NLSC 118 Date : June 7, 2019 Docket : 201901G2018 Between: Gerard Quinlan Appellant and: RNC PUBLIC COMPLAINTS COMMISSION RESPONDENT Before: Justice Gillian D. Butler Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 18 and June 4, 2019

Summary: Application to compel the Respondent to produce the documents relied upon by the Respondent for its March 1, 2019, Decision, which dismissed the Appellant’s complaints against several Royal Newfoundland Constabulary officers and the Chief of Police. Held, the documents should be filed and a copy provided to the Appellant. Appearances:

Gerard Quinlan Appearing on his own behalf Matthew Gough Appearing for the Respondent Wendy Zdebiak Appearing for the Royal Newfoundland Constabulary (Officers and Chief) Authorities Cited: CASES CONSIDERED: Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001SCC 76; Jane Doe v. Newfoundland and Labrador, 2015 NLTD(G) 151 STATUTES CONSIDERED: Royal Newfoundland Constabulary Act, 1992, SNL 1992, c.R-17; Access to Information and Protectionof Privacy Act, 2015, SNL 2015 REASONS FOR JUDGMENT Butler, J.: INTRODUCTION [1] By Notice of Appeal filed on March 8, 2019, Mr.

Quinlan appeals the decision of a Royal Newfoundland Constabulary PublicComplaints Commissioner dated March 1, 2019 (the “Decision”). On March 20, 2019, Mr. Quinlan filed an Interlocutory Application(originally indicated to be ex-parte but converted to an inter-parte Application) essentially seeking the Record which relates to theDecision described as “five bound volumes of Appendices.” [2] Since the Notice of Appeal was filed there have been two appearances only. On the first (April 5, 2019), counsel for the RNCPublic Complaints Commission (the “Commission”) alerted the Court to the fact that Mr.

Quinlan had not sought leave to file hisAppeal. This was dealt with on a practical basis by my colleague, Justice Marshall, who granted leave on that date. [3] As to the request for the Record, counsel for the Respondent advised that the Commission had expressed privacy concernspertaining to the documents requested by Mr. Quinlan. Justice Marshall therefore directed that the Decision and the documents shouldbe brought before the Court and the matter was set over to April 18, 2019, at 2:30 p.m. [4] On April 16, 2019, counsel for the Respondent filed a Memorandum of Fact and Law with three Appendices.

The first wasthe Royal Newfoundland Constabulary Act, 1992, SNL 1992, c.R-17. The second was the Access to Information and Protection ofPrivacy Act, 2015, SNL 2015, c. A-1.2, and the third was the Decision. [5] The 13-page Memorandum did not address the legitimacy of Mr.

Quinlan’s request to have the Record filed with the Court andprovided to him, except to reiterate the position of the Commissioner stated at page 78 of the Decision in which he confirmed that thefive bound volumes of Appendices, which formed the basis of the Decision, were protected by privacy legislation and would not beprovided to any of the parties in the absence of a lawful order to do so. [6] When I presided over the April 18, 2019, appearance I inquired of counsel why the Record had not been filed with the Court.

It was apparent there was some misunderstanding about what had been directed by Justice Marshall and I therefore directed that theRecord be provided to the Court in a sealed fashion and that I would review it in the course of determining whether Mr. Quinlan’srequest should be granted.

It was subsequently provided in duplicate and the parties appeared before me on June 4, 2019, for argument. [7] While counsel for the Royal Newfoundland Constabulary (RNC) officers and the Chief of Police was present at both the April5 and April 18, 2019 appearances, she took no position on the Application except to support what the Commissioner had said at page 78of his Decision about the privacy of the documents. [8] At the conclusion of the hearing on June 4, 2019, I granted Mr. Quinlan’s Application, with the Reasons to follow. FACTS [9] From January 2013 to August 2017, Mr.

Quinlan lived in a basement apartment at Symonds Place owned by Keith Atkins andDonna Short who lived upstairs. Over the course of time it is apparent from the Decision of the Commissioner that the landlord-tenantrelationship became tense and volatile. [10] Mr. Quinlan’s first contact with the RNC regarding his landlord was on February 25, 2013, and was a complaint of a threat ofviolence. The next complaint was on May 5, 2017, and involved a complaint of unlawful entry. On July 10, 2017, Mr.

Quinlan believedhe had evidence that the landlords had entered his apartment in his absence and once again the RNC were notified.

[ 11 ] Mr. Quinlan’s first contact with the Commission was in a 29-page letter in July of 2017. Meanwhile, his landlord had filed an Application for a Peace Bond, which was heard before the Provincial Court on August 10, 2017. Leading up to the Peace Bond Hearing, there were further problems between Mr. Quinlan and Keith Atkins and this led both Mr. Quinlan and Mr. Atkins to make complaints of assault. [ 12 ] On August 10, 2017, Provincial Court Judge Lori Marshall ordered Mr.

Quinlan to keep the peace on conditions requiring him not to return to the apartment, however, he slept there on the evening of August 13, which led to another call to the RNC, a response by two officers and subsequent meetings at the RNC headquarters on August 14, 2017. The landlords’ complaints of criminal harassment and mischief were also investigated. [ 13 ] When the landlords accessed Mr. Quinlan’s apartment on August 14, 2017, they took a detailed inventory of Mr. Quinlan’s possessions, and had concerns with some of the items located.

This lead to another investigation by the RNC who entered the apartment with a warrant. [ 14 ] Notwithstanding Mr. Quinlan’s numerous calls to the RNC and the related investigations, no charges were laid against either landlord. As a result, Mr. Quinlan made four separate complaints against multiple officers and the Chief of Police alleging improper investigations and, in the case of the Chief, failure to supervise his officers. In addition, relative to a specific officer (who had met with Mr. Quinlan in an effort to resolve one particular complaint) Mr.

Quinlan made an allegation of tampering with witnesses and blackmail. [ 15 ] All four complaints were addressed by Commissioner John Rorke who found that no misconduct was established. applicable legislation [ 16 ]

Part III of the Royal Newfoundland Constabulary Act addresses public complaints. Under

section 24, when a complaint is filed it is first referred to the Chief or Deputy Chief but pursuant to sub-section 24(5) the Chief or Deputy Chief may “where he or she believes it to be in the public interest to do so, transmit the complaint to the Commissioner and that complaint shall be considered by the Commissioner under

section 26 as if it were an Appeal under

section 25.” [ 17 ] Counsel confirms that once Mr. Quinlan’s complaints involved the Chief, all four matters were referred to the Commission under this subsection. analysis [ 18 ] The investigative report authored by investigator Robert Cuff addresses the four separate complaints filed between July 26, 2017, and July 18, 2018. The Decision confirms that the investigator reviewed 22 RNC files but was denied access to one citing privacy reasons (file # 18-5883). It is not apparent to what incident this file relates or why it was not released to the Commission. [ 19 ] In the course of the investigation, Mr.

Quinlan was interviewed twice, two officers declined an interview (as was their right), two officers agreed to a cautioned interview, and the Chief of Police responded to written questions. Other witness officers were interviewed.

Five bound volumes of materials formed the Record reviewed by Commissioner John Rorke (former Provincial Court Judge) who described it as the most complicated and lengthy investigation into a complaint that the Commission had seen. [ 20 ] Ultimately, Commissioner Rorke held that the complaints should be dismissed notwithstanding his conclusion that a few police errors had been made during the course of the various investigations. As previously indicated, he held at page 78 that the five volumes of material were protected by privacy legislation and would not be released to either party.

His Decision did not explain this conclusion. [ 21 ] I conclude that the Commissioner’s determination that the complaints should be dismissed was a finding under section 28(1) of the Act . The matter having been dismissed, neither complaint was referred to an adjudicator pursuant to section 28(2). [ 22 ] I note however that had this step been taken, the hearing conducted by the adjudicator would be open to the public and the Commissioner would be required to publish notice of the hearing in the Gazette in a manner prescribed by regulation (see

section 32). [ 23 ] It is only where one of two pre-conditions stated in subsections 32(2)(

a) and (

b) are met that the Adjudicator could hold all or part of an adjudicative hearing in private. These are: (

a) the matter under consideration involves public security or the desirability of avoiding disclosure in the public interest outweighs the desirability of adhering to the principle of having proceedings open to the public; or (

b) in the public interest or for intimate financial or personal reasons the desirability of avoiding disclosure outweighs the desirability of maintaining public proceedings [ 24 ] The Memorandum filed by counsel for the Commission does not address how the documents sought by Mr. Quinlan could fall within either of these exceptions, had the matter gone to adjudication. [ 25 ] In any event, the matter comes before this Court pursuant to

section 36 of the legislation and was filed within the statutory time period required under 36(4). Pursuant to section 36(8) the Commissioner is obliged to “provide to a judge on the hearing of an appeal all papers and documents in his or her possession which may affect the matter being appealed.” [ 26 ] I conclude that once these documents are provided to the judge as required by section 36(8) they would form part of the Court record and would not only be available to the parties, but also open to the public, absent an order restricting access.

[27] Thus, on Mr. Quinlan’s Application, the onus is on the Respondent to establish grounds to prevent the documents from beingprovided to Mr. Quinlan. In this respect, unlike

section 32 that applies to adjudications, no exceptions are noted in

section 36. [28] I note some other sections that are of assistance to this issue. Pursuant to

section 60, a police officer, investigator, and theCommissioner are to preserve secrecy in respect of all information obtained in the course of their duties and are not to communicate thisto other persons except as required in connection with the administration of this Act. This

section explains why the Commissioner tookthe position he did at page 78 of the Decision relative to the documents he reviewed at the investigative stage. [29] However, section 36(8) overrides

section 60 because the disclosure of these documents is required once the appeal is filed and,therefore, disclosure falls within the exception stated in section 60(1)(a) “as required in connection with the administration of the Act.” [30]

Section 61 is also relevant. It provides that “where this Act conflicts with another Act this Act shall prevail except with respectto the provisions of those Acts referred to in paragraph 60(1)(a.1). The Access to Information and Protection of Privacy Act, relied uponby the Respondent, is not one of the Acts cited in section 60(1)(a.1). [31] I conclude therefore that section 36(8) is conclusive on the issue raised on this Application and that the Record (five boundvolumes of Appendices) must be filed with the Court and a duplicate copy provided to Mr.

Quinlan for the furtherance of his appeal. conclusion [32] The Respondent has not met the onus of establishing that the documents reviewed by the Commissioner are to remainconfidential once the appeal is filed. The five volumes of material must therefore be filed with the Court as required by section 36(8) ofthe Act and a duplicate copy provided to Mr. Quinlan. [33] The Respondent did not make any submissions respecting the use that Mr. Quinlan could make of the documents or whetherthere should be any restrictions on public access.

My Order is therefore without conditions. [34] At the conclusion of the hearing I reminded counsel that should any restrictions on use or access to the Record be sought,consistent with this Court’s protocol, notice must be given to interested media. On such an Application, the test to be addressed is thatstated in Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835 and refined subsequently in R. v.Mentuck, 2001 SCC 76. (See Jane Doe v. Newfoundland and Labrador, 2015 NLTD(G) 151 at para. 10). _____________________________ Gillian D. Butler Justice