John Roberts Appellant And: ROYAL NEWFOUNDLAND CONSTABULARY PUBLIC complaints commission Respondent, 2023 NLSC 149

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Roberts v. Newfoundland Constabulary Public Complaints Commission , 2023 NLSC 149 Date : November 17, 2023 Docket : 202201G4106 Between: John Roberts Appellant And: ROYAL NEWFOUNDLAND CONSTABULARY PUBLIC complaints commission Respondent Before: Justice Garrett A. Handrigan Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 6, 2023

Summary: John Roberts applied under section 36 (1) of the Royal Newfoundland Constabulary Act, 1992 , SN 1992, c. R-17 by Originating Application to appeal a decision of the Royal Newfoundland Constabulary Public Complaints Commission. He claimed that the Commissioner erred on her appeal from a decision of the Chief of Police, when she dismissed a public complaint he filed against a member of the Royal Newfoundland Constabulary. The Court dismissed the Originating Application.

It was not satisfied that the Commissioner had committed palpable and overriding error in her decision, nor by extension had the Chief of Police and the investigating police officer erred in their decisions. It ordered Mr. Roberts to pay costs, to be taxed under Column 3 of the Scale of Costs. Appearances:

Brian D. Wentzell Appearing on behalf of the Appellant Stephen Brien Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 ; Benhaim v. St-Germain, 2016 SCC 48 ; Coady v. Royal Newfoundland Constabulary Public Complaints Commission , 2007 NLTD (G) 83 STATUTES CONSIDERED: Royal Newfoundland Constabulary Act, 1992 , SN 1992, c.

R-17, REASONS FOR JUDGMENT Handrigan, J. : INTRODUCTION [ 1 ] On September 26, 2022, John Roberts filed an Originating Application in this Court appealing a decision by the Royal Newfoundland Constabulary Public Complaints Commission. Initially, one MJ filed a complaint against Mr. Roberts claiming that he criminally harassed and sexually assaulted her with a weapon; offences for which the Constabulary charged Mr. Roberts and of which he was acquitted in the Provincial Court. [ 2 ] After his acquittal, Mr.

Roberts filed a compliant against MJ saying she committed public mischief and perjury when she complained to the police and later testified in court about the criminal harassment and sexual assault charges. The officer who investigated Mr. Roberts’ complaint, A/Sgt. Karen Reynolds, refused to charge MJ for public mischief and perjury so Mr. Roberts filed a public complaint about her with the Chief of Police. [ 3 ] In the public complaint, Mr. Roberts claimed that A/Sgt. Reynolds, ignored key evidence and acted with prejudice, when she declined to charge MJ with public mischief and perjury.

The Chief of Police of the Royal Newfoundland Constabulary (the “Chief”) dismissed Mr. Roberts’ public complaint from the officer’s decision and Mr. Roberts appealed the Chief’s decision to the Police Complaints Commission (the “Commission”), which also dismissed his appeal. Then, of course, as I noted at the outset, Mr. Roberts appealed to this Court from the Commissioner’s decision. Issues [ 4 ] Mr. Roberts’ appeal to this Court raises these issues: 1) What standard of review applies to the Commissioner’s decision? 2) Did the Commissioner err when she reviewed the Chief’s decision?

The Law Statute – Standard of Review [ 5 ]

Section 36 of the Royal Newfoundland Constabulary Act, 1992 , SN 1992, c. R-17 (the “ RNC Act ”) provides in part, as follows:

(1) The complainant …who is the subject of the complaint may appeal an order or decision of the commissioner under …subsection … 28(1) … by way of application to the Trial Division.

(2) An appeal shall not be made without leave of a judge of the Trial Division.

(3) An application for leave to appeal made under subsection (2) shall be made by way of originating application, without giving notice to other interested parties, within 15 days of the receipt by the appellant of the order of the adjudicator.

(4) An application made to the Trial Division shall be filed within 15 days of the date leave to appeal is granted. [emphasis added] [ 6 ] Counsel for the parties submit that appellate standards of review apply to this matter because the legislation allows the complainant to appeal the commissioner’s decision. I agree. Case Law – Standard of Review [ 7 ] The following quotation from Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , pertains: 37.

It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court's jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory

interpretation and those concerning the scope of a decision maker's authority, apply the standard of correctness in accordance with Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235(S.C.C.), at para. 8 .

Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen , at paras. 10, 19 and 26-37 . [ 8 ] From the preceding this Court must apply these standards of review to the decision of an administrative tribunal that is appealed to this Court: • For questions of law, including statutory

interpretation and the scope of a decision maker’s authority, correctness ; • For questions of fact, palpable and overriding error ; and • For questions of mixed fact and law, also palpable and overriding error . [ 9 ] Counsel also submit that the questions I will consider in this appeal are of mixed fact and law so the standard I will apply to their review is palpable and overriding error. I agree with that, too. [ 10 ] In Benhaim v. St-Germain , 2016 SCC 48 , the majority of the Supreme Court of Canada, affirmed this definition of “palpable and overriding error”: 38.

It is equally useful to recall what is meant by "palpable and overriding error". Stratas, J.A. described the deferential standard as follows in South Yukon Forest Corp. v. R., 2012 FCA 165 , 4 B.L.R. (5th) 31(F.C.A.) , at para. 46 : Palpable and overriding error is a highly deferential standard of review .... "Palpable" means an error that is obvious. "Overriding" means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall. 39.

Or, as Morissette, J.A. put it in G. (J.) c. Nadeau , 2016 QCCA 167 (C.A. Que.), at para. 77 , [TRANSLATION] "a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions. Statute – Role of Commissioner [ 11 ] The RNC Act provides an elaborate process for dealing with public complaints about the police force.

Part III of the Act, headed “Public Complaints”, comprises sections 18 to 43, inclusive. [ 12 ] Section 18(1) of the RNC Act creates the “Royal Newfoundland Constabulary Public Complaints Commission consisting of a commissioner”. It is that body from whose decision Mr. Roberts appeals to this Court.

Section 19 of the RNC Act confers various powers on the Commissioner: to receive and review a complaint against a peace officer (19(1)(a)); to investigate a complaint (19(1)(b)); and to dismiss or refer a complaint for a hearing (19(1)(c)). If the Commissioner refers a complaint for a hearing, the matter proceeds under

section 28 of the RNC Act . [ 13 ] Section 22 (1) of the RNC Act authorizes a person to “file a complaint” about the “(

a) conduct of a police officer”, as Mr. Roberts did here. Section 24(3) says that “the chief…shall investigate the complaint”; and the Chief may “(

b) dismiss the complaint”; whereupon the “complainant who is not satisfied with a decision of the chief…may…appeal the decision by filing an appeal with the commissioner”; again, as Mr. Roberts’ did here. [ 14 ]

Section 26 of the RNC Act authorizes and directs the “Commission investigation and settlement” of complaints and

section 27 prescribes the commissioner’s “powers of investigation”. The commissioner may “[f]ollowing an investigation of a complaint, where the commissioner determines that the decision of the chief …was properly made …dismiss the complaint and confirm the decision of the chief …” (28(1)).

[ 15 ] Meanwhile the commissioner “shall decline to take further action on [the complaint]” if either of the three conditions in section 28 (1.1) prevail. If the commissioner “…does not dismiss a complaint…and does not effect a settlement…, he or she shall refer the matter to the chief adjudicator of the panel appointed under

section 29 who shall conduct a hearing into the matter or refer it to another adjudicator” (28(2)). [ 16 ] Section 36(1) of the RNC Act provides “[that] [t]he complainant…may appeal an order or decision of the commissioner under…subsection…28(1) …to the Trial Division”. The complainant may only appeal the commissioner’s order or decision to this Court “…with leave of a judge of the Trial Division” (36(2)). I note that Mr. Roberts was granted leave to appeal. [ 17 ] Let me summarize the steps that the RNC Act stipulates for handling public complaints, of the kind that Mr. Roberts made in this matter: 1.

File a complaint with the Chief. 2. The Chief investigates and decides the complaint. 3. If the Chief dismisses the complaint, the complainant may appeal to the Commission. 4. If the Commission does not dismiss or settle the complaint, it must refer the complaint to an adjudicator. 5. If the Commission dismisses the complaint, the complainant may, with leave, appeal to a judge of this Court. [ 18 ] Because of the procedural history of this matter, only steps 1-3 and 5 are relevant here.

As I noted earlier, sections 18 to 43 of the RNC Act prescribe a more intricate and complex procedure than I have summarized here, but its more obscure aspects are not engaged to these proceedings. Case Law – Role of Commissioner [ 19 ] In Coady v.

Royal Newfoundland Constabulary Public Complaints Commission , 2007 NLTD (G) 83, Orsborn, J., then of this Court, discussed what “…the commissioner [is] required to do when considering an appeal from the Chief’s dismissal of a complaint?” Noting that “[t]his has received little discussion in the authorities…”, the learned justice, as was his wont, elaborated (paragraph 21), for our benefit: 22. Under subs. 28(1) of the Act the commissioner is to determine if the decision of the Chief is "properly made". This is not further defined. 23.

The commissioner cannot overrule the Chief's decision; the commissioner has no authority to impose or remove discipline. Absent settlement of the appeal, the commissioner has two options only - she can confirm the Chief's decision by dismissing the complaint or, if satisfied that the Chief's decision was not properly made, she can refer the matter to a full public adjudication. 24. The commissioner does not perform an adjudicative role as such; her role is to conduct her own investigation and based on that investigation, to assess whether the Chief's decision was properly made.

As described by Roberts J.A. in Royal Newfoundland Constabulary Public Complaints Commissioner v. Oates , [[2003] NLCA 40] the Pubic (sic) Complaints Commission performs a public rather than a private function. The complaints process provides an avenue for the expression of dissatisfaction with the conduct of police officers; while discipline may flow from a complaint, the primary objective remains the provision of a vehicle for the expression of dissatisfaction rather than the imposition of discipline. 25.

The phrase "properly made" used in subs. 28(1) - as opposed to "correct" or "in error" or "sustainable" - suggests that the role of the commissioner is to assess how or the manner in which the Chief reached the decision under appeal. But it must be acknowledged that the Act requires the commissioner to conduct her own investigation - this suggests some level of inquiry into the merits of the complaint. 26.

Bearing in mind the statutory mandate of the commissioner, the public rather than the private nature of her function, and the lack of authority in the commissioner to impose or revoke discipline, I would describe her role as that of screening complaints before triggering the comprehensive adversarial and potentially prejudicial - in terms of imposing sanctions - adjudication process . 27.In this context, I consider that in determining whether a decision of the Chief is "properly made", the question for the commissioner is

this:- based on the investigation by the commissioner, and on the other information available to the commissioner, and in all of the circumstances, does the decision by the Chief (to impose discipline or to dismiss the complaint) and/or the process by which such decision was reached, exhibit such deficiency or deficiencies that it is in the public interest to refer the complaint to adjudication ? [emphasis added] [ 20 ] From the preceding discussion, I find that the following factors govern the commissioner when she receives a complaint: • She cannot overrule the Chief’s decision. • She has no authority to impose discipline on or to remove discipline from an officer. • She may settle the appeal, but if she does not, she has two options: confirm the Chief’s decision or if it is not “properly made”, refer it for full public adjudication. • The commissioner’s role is investigative, not adjudicative, but she must still inquire into the merits of the Chief’s decision, albeit in a limited way. • The commissioner performs a public, not a private role, the primary focus of which is to allow dissatisfaction to be expressed more than discipline to be imposed. • The commissioner’s role is mainly to screen complaints before engaging in the more adversarial and possibly more prejudicial adjudication process. • Overall, the commissioner must decide whether the process by which the Chief reached his decision was so deficient that it is in the public interest to adjudicate the complaint. [ 21 ] This is the law I will apply to the Issue #2 I stated above.

I turn now to analyze that issue, starting with the background to it. Analysis Background [ 22 ] Mr. Roberts and MJ were in an intimate relationship for several years. Both describe the relationship as “on-again-off-again”. They met some time in 2016, when Mr. Roberts was 48 years old and MJ was 24.

Their interest in each other continued through most of 2017, but by January 2018 they were completely estranged, accusing each other of harassment, obsessive control and threatening behaviour. [ 23 ] Under Tab 2 of the Statutory Record Book 1 of 3, this synopsis of their relationship was provided for the Commissioner, who was encouraged “…to conceive of the MJ/Roberts relationship as passing through four phases”: Early Oct 2016 - Mar 2017 -occasional “hook-ups”, over six months Peak Apr 2017 – Jul 2017 -more regular contact/romantic relationship Hiatus Aug 2017 – Sep 2017 -socializing in public, four months -a break during Mr.

Roberts’ election campaign to become mayor of Paradise -infrequent contact, two months Late Oct 2017 – Jan 2018 -frequent breakups/deteriorating relations, 3.5 months [ 24 ] It appears that the parties finally ended their relationship around the middle of January 2018, when they were in Toronto, accompanied then by MJ’s young son, as the three were enroute home from a trip to Cuba. [ 25 ] Over the following months, MJ reported to the police that her and her mother’s vehicles were vandalized in her driveway, that she repeatedly received late-night, anonymous phone calls and that she endured other forms of harassment.

The Constabulary investigated her reports and focused on Mr. Roberts because MJ suspected that he was the cause. In early February 2018, MJ also applied to the Provincial Court to place Mr. Roberts on a peace bond. [ 26 ] MJ dropped the peace bond application just before the Court was to hear it but by then she had also reported to the Constabulary that Mr. Roberts had sexually assaulted her with a weapon sometime between June and August 2017. On

June 27, 2018, the Constabulary charged Mr. Roberts with criminally harassing MJ and sexually assaulting her. [ 27 ] The criminal harassment charge related generally to allegations that MJ made against Mr. Roberts over the preceding months but focused specifically on an incident that took place at Deluxe Drycleaners on March 29, 2018, where Mr. Roberts was working at the time. The sexual assault with a weapon charge was based solely on the allegations MJ made against Mr. Roberts from the summer of 2017. [ 28 ] Mr.

Roberts elected to be tried in the Provincial Court on these charges and his trial took place in that Court between August and September 2019. On September 30, 2019, Provincial Court Judge Jacqueline Brazil acquitted Mr. Roberts of both charges. About the general harassment allegations, Judge Brazil said the evidence did not support the charge against Mr. Roberts for them, but as to the pivotal incident at Deluxe Drycleaners where there was definitely a confrontation between MJ and Mr. Roberts, she had this to say: I am dismissing the criminal harassment allegation because the Crown has not met its burden.

The Crown failed to prove beyond a reasonable doubt that the complainant feared the accused. To quote D.D.S. , the fear she purported to have did not “stand in harmony with the other evidence pertaining to it. [ 29 ] For the charge of sexual assault with a weapon, Judge Brazil acquitted Mr. Roberts because, ..a criminal allegation must be proven to a high standard, to the standard of proof beyond a reasonable doubt, and the Crown has failed to meet that standard in this case.

Due to my credibility concerns [about MJ] , as already outlined, it would be dangerous to find the accused guilty of this offence based on the evidence that was led at trial. [emphasis added] [ 30 ] It is clear that Judge Brazil had concerns about the reliability of MJ’s evidence for she said earlier in her judgment: My decision in this case also hinges on the credibility of M.J. I must assess her credibility and determine whether I am left with a reasonable doubt by it. [emphasis added] [ 31 ] Ultimately, Judge Brazil was “left with a reasonable doubt by it ” and she acquitted Mr.

Roberts, as I have noted. [ 32 ] Mr. Roberts responded to his acquittal perforce. On November 28, 2019, he filed a formal complaint with the Constabulary alleging that MJ had committed public mischief and perjury. He tied his complaint directly to the allegations that MJ made against him which led to the charges of criminal harassment and sexual assault with a weapon of which Judge Brazil acquitted him and, as well, to the testimony that MJ gave at his trial. [ 33 ] The Constabulary assigned A/Sgt. Karen Reynolds to investigate Mr. Roberts’ complaint on November 29, 2019. A/Sgt.

Reynolds concluded her investigation on October 6, 2020, almost 11 months later. She closed the file without charging MJ with an offence. A/Sgt. Reynolds informed Mr. Roberts of her decision on October 7, 2020. [ 34 ] These are A/Sgt. Reynolds’ notes from her conversation with Mr. Roberts, just after she informed him of her decision: 0920 hrs [2020-10-07] Received a call from John Roberts from a number I didn’t recognize, therefore I was unable to record the conversation. I advised John that the file would be concluded without charges.

I stated that I did a thorough investigation and requested an opinion from the Crown and that my decision based on everything in totality, was to conclude the file without charges as it did not meet the threshold for criminal charges. I advised that there was one aspect of the file in which I thought there might be grounds for charges but knew it was thin. To ensure I had covered off everything, I requested the Crown’s opinion. The Crown reviewed the entire file and based on same, my final decision was to not lay charges. John was quite upset by this.

He stated the following: - This is not over; he will be going to the media and his lawyer. - He acknowledged that I did a thorough investigation and does not understand, how after 11 months, charges could not be laid as he laid it all out for police and she lied on the stand and said he followed her to the Dominican. - This is a slap in the face to him after all he has been through and it is an embarrassment to the RNC. - This will be going on for a long time. - He wants a letter from me advising that the file will be concluded without charges. - He does not understand how there would be no charges in this file, whereas he was charged with sexual assault and criminal harassment by Cst.

Andrews and Cst. Field. I advised him that these were separate investigations that were completed by different officers and that I had no involvement in them. I could not comment on the actions of those officers. - He asked if, now that this investigation was concluded, would Sgt. Abbott’s public complaint investigation begin. I advised him that they would. He stated that he would be contacting Sgt. Abbott about this. - He then ended the call. [ 35 ] On November 13, 2020, Mr. Roberts filed a public complaint against

A/Sgt. Reynolds under section 22(1) of the RNC Act , because of her investigation. Mr. Roberts alleged that A/Sgt. Reynolds “acted with prejudice and ignored key evidence…failed to act in a prudent manner, was biased in her

interpretation of the law, and suffered tunnel vision in her decision-making”. Inspector Terry Corbin of the Constabulary investigated Mr. Roberts’ complaint at the direction of the Chief of Police and completed his investigative report for the Chief on February 26, 2021. [ 36 ] The Constabulary’s Chief of Police, Joseph Boland, issued his decision on July 23, 2021, dismissing Mr. Roberts’ complaint. This is the ultimate paragraph of the Chief’s decision: I am dismissing JR’s complaint.

I conclude that the evidence does not establish that Constable KR acted with bias, ignored key evidence or was unduly aggressive with witnesses. There is no evidence of prejudice, bias or a dereliction of duty. I find that the investigation was conducted thoroughly, competently, and without undue delay. I am mindful that while the investigation did linger longer than many investigations, several factors beyond Constable KR’s control were at play, including a global pandemic and associated delays. Constable KR acted with due diligence, competence and attention to detail.

Her notes, correspondence and report display professionalism, courtesy and good judgment. [ 37 ] On August 8, 2021, Mr. Roberts filed an 8-page Notice of Appeal of the Chief’s decision under section 25(4) of the RNC Act . He relied on various grounds and introduced them this way: After reading Chief Joe Boland’s rationale for dismissing the public complaint outlining the failures of Constable KR with respect to investigating MJ for both, Public Mischief & Perjury, I am flabbergasted to the extent to which the RNC’s tunnel vision is evident from the top down in this organization.

In stark contrast to Chief Joe Boland’s response, I will stick solely to the facts of this case. [ 38 ] Inspector Robert Cuff of the Constabulary investigated Mr. Roberts’ appeal on behalf of the Commissioner pursuant to section 26(2) of the RNC Act . Inspector Cuff submitted a comprehensive report in which he found that A/Sgt. Reynolds properly investigated Mr. Roberts’ complaint, that she acted without bias or prejudice, that she considered all the evidence that Mr. Roberts provided to her and that she exhibited no tunnel vision. He disagreed with one part of A/Sgt.

Reynolds’ investigation, however, and I will return to it later in these reasons, when it is more relevant. [ 39 ] The Commissioner also dismissed Mr. Roberts’ appeal. She found that “…the decision of the Chief was properly made”. She was satisfied with the Chief’s findings that A/Sgt. Reynolds acted without bias or prejudice, that she considered all the evidence that Mr.

Roberts provided to her and that she did not exhibit tunnel vision during her investigation. [ 40 ] Moreover, the Commissioner found that even if she was not satisfied that the Chief decided properly, she could not justifiably refer the matter for a disciplinary adjudication hearing: I would have to be satisfied that: (

a) the matter is not frivolous or vexatious; (

b) the complaint has not been abandoned or withdrawn, and (

c) that there is sufficient evidence supporting the complaint to justify a public hearing. [ 41 ] While the Commissioner was “…satisfied that the matter is neither frivolous nor vexatious” and that “…the complaint has not been abandoned or withdrawn”, she was not satisfied that there was “…sufficient evidence to justify a public hearing”. [ 42 ] Mr. Roberts filed his Originating Application in this Court on September 26, 2022, seeking “...an Order of this Honourable Court pursuant to section 28(2) of the RNC Act , aforesaid, that the matter be referred to the chief adjudicator for a hearing”. I heard Mr.

Roberts’ appeal on November 6, 2023, and reserved my decision until now. Discussion [ 43 ] Let me pause momentarily to restate the stages of this matter: • Mr. Roberts filed a complaint with the Constabulary that MJ committed public mischief and perjury when she complained to the Constabulary that he had harassed and sexually assaulted her and then testified at his trial. • A/Sgt. Karen Reynolds investigated and dismissed Mr. Roberts’ complaint against MJ. • Mr. Roberts filed a public complaint against A/Sgt.

Reynolds when she did not charge MJ with public mischief and perjury. • Inspector Terry Corbin investigated Mr. Roberts’ complaint against A/Sgt. Reynolds and reported to Chief of Police Joseph Boland. • Chief of Police Boland dismissed Mr. Roberts’ public complaint against A/Sgt. Reynolds. • Mr. Roberts filed a Notice of Appeal to the Chief’s dismissal of his public complaint with the RNC Public Complaints Commission.

• Inspector Robert Cuff investigated Mr. Roberts’ appeal on behalf of the Commissioner and reported to the Commissioner. • The Commissioner heard Mr. Roberts’ appeal and dismissed it. • Mr. Roberts’ appealed the Commissioner’s dismissal to this Court. [ 44 ] It is also useful to revisit what Orsborn, J. said in Coady v.

Royal Newfoundland Constabulary Public Complaints Commission , 2007 NLTD (G) 83 about the role of the Public Complaints Commissioner in this process; as I summarized his comments earlier in these reasons: • She cannot overrule the Chief’s decision. • She has neither authority to impose discipline on nor to remove discipline from an officer. • She may settle the appeal, but if she does not, she has only two options: confirm the Chief’s decision or if it is not “properly made”, refer it for full public adjudication. • The commissioner’s role is investigative, not adjudicative but she still must inquire into the merits of the Chief’s decision, albeit in a limited way. • The commissioner performs a public, not a private role, the primary focus of which is to allow dissatisfaction to be expressed more than discipline to be imposed. • The commissioner’s role is mainly to screen complaints before engaging in the more adversarial and possibly more prejudicial adjudication process. • Overall, the commissioner must decide whether the process by which the Chief reached his decision was so deficient that it is in the public interest to adjudicate the complaint. [ 45 ] In his Originating Application Mr.

Roberts focuses on a comment that the Chief of Police made in his decision: “In JR’s mind … [his acquittal by Judge Brazil], appears to mean that MJ said he committed the offences and the Judge said he did not, so MJ must be lying”. Mr. Roberts goes on to say that “… the ‘Chief’s explanation’… was fully adopted by the Commissioner…” (paragraph 14); and then he claims that “…this initial finding … taints the remainder of her decision with an irreparable perception of bias and partiality and paints John Roberts as someone who cannot get it through his head” (paragraph 18). [ 46 ] Mr.

Roberts also submits that for the Commissioner “… to simply ‘fully adopt’ the reasoning of the decision appealed against without providing any reasons therefore does not meet the requirement to give reasons”. He believes overall that the Commissioner failed to provide sufficient reasons for her findings and simply adopted the Chief’s reasoning. I do not agree.

Let me explain. [ 47 ] As Orsborn, J. said in Coady , the Commissioner’s role is investigative, not adjudicative; she may inquire into the Chief’s decision, but in a limited way; she is required to screen complaints in the main; and overall to decide whether the Chief’s decision is so deficient that it is in the public interest to adjudicate it.

The Commissioner did as much as that here and possibly went beyond it. [ 48 ] Chief Boland filed a lengthy, well-reasoned decision in which he showed indepth knowledge of the issues in play between the parties and his complete familiarity with the process that the Constabulary had already undertaken in handling Mr. Roberts’ complaint. The Chief gave a helpful

summary at the beginning of his decision and then followed through on it with clarity and detail: In explaining my reasons, I will outline the background to this complaint. I will then discuss the offences of perjury and mischief and the requirement for reasonable and probable grounds before charges are laid. Next, I will review Constable KR’s [aka A/Sgt. Reynolds] investigation. I will then outline the steps taken by Inspector TC [Terry Corbin] who investigated this Public Complaint.

Finally, I will analyze the complaint in the context of the evidence gathered and make my conclusion as to whether or (sic) there is any evidence of prejudice or of Constable KR ignoring evidence. [ 49 ] The Chief is persuasive and convincing in his analysis of the issues and soundly judges them, such that it would be difficult to find that his decision is “so deficient that it is in the public interest to adjudicate it”. The Commissioner also had the benefit of Inspector Robert Cuff’s report from his investigation of the complaint, of which she said:

As part of the consideration of this appeal, I assigned an investigator to review all relevant information, interview relevant witnesses, and complete a report with respect to the matters raised in this appeal. The investigation has been completed and I have reviewed the investigator’s report and appendices. [ 50 ] I note that Inspector Cuff’s report ran to 37 pages, and that he endorsed A/Sgt. Reynolds’ investigation withal, with one exception. I alluded to this exception earlier and it bears further consideration. [ 51 ] On July 20, 2020, as she was nearing the end of her investigation, A/Sgt.

Reynolds submitted a report to counsel which she concluded with this observation: Based on my investigation into John Roberts allegations of Public Mischief and Perjury against MJ, I believe that MJ has committed one count of Public Mischief s. 140(1)(

a) in relation to information she provided police on May 8, 2018… . [ 52 ] In his report to the Commissioner, Inspector Cuff offered this assessment of how A/Sgt. Reynolds ultimately dealt with this issue: It is a further conclusion of this appeal investigation, however, that A/Sgt. Reynolds allowed Mr. Roberts’

interpretation and his oft- repeated allegations to colour her investigation in one instance … . Mr. Roberts continued to maintain that the 8 May 2018 statement alluded to his having bribed a travel agent and contained a denial that Ms. J. had provided Mr. Roberts with contact information for her travel agent. It is this investigator’s view that her conclusion as of 20 July 2020 “M.J. has committed one count of Public Mischiefs s. 140(1)(

a) in relation to information she to police on May 8 th , 2018” … . was not fully informed. It is fortunate that she [A/Sgt. Reynolds] had further legal advice from the Crown and ultimately concluded that, while the decision is mine and not the Crown’s… I wanted to ensure my decision was made without any pressure/influence/bias… and that my decision based on everything in totality was to conclude the file without charges as it did not meet the threshold for criminal charges. [ 53 ] Inspector Cuff’s commentary is relevant to this appeal for several reasons.

First, it formed part of the report he submitted to the Commissioner and informed her of how thoroughly and completely A/Sgt. Reynolds acted in her initial investigation of the complaint, just as the Chief of Police did when he dismissed Mr. Roberts’ public complaint against A/Sgt. Reynolds. [ 54 ] But as importantly, if not even more persuasively, Inspector Cuff highlights how scrupulously A/Sgt. Reynolds investigated Mr. Roberts’ complaint.

She was engaged on it for almost eleven months and the report she submitted from it, was vetted by Sergeant Stephanie Legace to whom she reported and then reviewed repeatedly by the others who were involved in the process subsequent to it. [ 55 ] Chief Boland was fully apprised of how thoroughly A/Sgt. Reynolds completed her work and was so impressed with her assiduity that he described it in detail in his decision: Constable KR was assigned JR’s complaint. Her investigation necessarily involved reviewing the prior investigations carried out by Constables CF and DA and the trial transcript.

She began her investigation by interviewing JR. She conducted three interviews, all audio recorded in the presence of another officer, Constable L.A. These interviews took place on February 5, 6, and March 12, 2020. JR pointed Constable KR to several individuals who he believed would provide evidence to support his complaint. All told, Constable KR conducted interviews with 11 individuals outside of the RNC. None of them provided information which indicated that MJ had perjured herself or committed mischief. MJ declined to be interviewed.

Constable KR consulted with the police officers who were the lead investigators on the criminal harassment and sexual assault with weapons charges. She spoke to the officer who responded to the initial complaint of vandalism launched by MJ in January of 2018. She spoke to the Crown Prosecutor who prosecuted JR, the investigator in JR’s public complaints about the conduct of police officers DA and CF, and the Crown Prosecutor responsible for the appeal of JR’s conviction (sic). She emailed JR’s criminal defence lawyer, Ms. R.S., but she did not respond.

Constable KR was in regular contact with JR through email and text messages. The investigation was time consuming due to the volume of material and the number of investigations she was required to review. Her investigation was hampered by the COVID-19 pandemic which occasioned delays for almost all workplaces. She was also delayed by the request for a legal opinion. At the end of the investigation, Constable KR had no evidence to suggest that perjury or mischief had occurred. Her conclusions were reviewed by her Sergeant, SL. Constable KR sought a legal opinion regarding her investigation.

No charges were laid against MJ. [ 56 ] From this recital, this comes to my mind: A/Sgt. Reynolds, Sergeant Stephanie Legace, Inspector Terry Corbin, Chief of Police Boland, and Inspector Robert Cuff, were intimately aware of the details of Mr. Roberts’ file and the Commissioner drew upon their collective experiences with it when she made her decision. Mr. Roberts says that all of those contributors are in-house of the Constabulary and are zealous about its profile and want to protect it. Mr. Roberts’ criticism is facile and easily stated but the history of this matter does not bear it out.

Let me explain. [ 57 ] A/Sgt. Reynolds investigated Mr. Robert’s complaint for almost 11 months. She produced a massive report, carefully documenting the work she did during that time. Her report is detailed and thorough and accounts fully for the time she spent on it. I have reviewed A/Sgt. Reynolds’ report and the investigative reports that Inspectors Corbin and Cuff produced from it. [ 58 ] I cannot tell what A/Sgt. Reynolds might have done more completely to address Mr. Roberts’ complaint than she did. And the reviewing officers, especially Inspector Cuff, did not simply “rubber stamp” A/Sgt.

Reynolds’ findings; but they criticized her when they

believed it was necessary to do and held her to a high operating standard. In fact, from reading the two inspectors’ reports, I find each’s overall tone borders on challenge and antipathy toward A/Sgt. Reynolds, and not on deference and flattery. [ 59 ] As to Mr. Roberts’ criticisms of the Commissioner’s lack of evidence for her conclusions about A/Sgt. Reynolds decision not to charge MJ, the Commissioner, as do I, knew the full history of Mr. Roberts’ complaint, including, most importantly the depth and thoroughness of A/Sgt.

Reynolds’ investigation; so, if the Commissioner’s decision was arguably more conclusory, than investigative and not as exhaustively supported by evidence as Mr. Roberts prefers, this context matters. I note here, too, Orsborn, J.’s observation in Coady , that the Commissioner’s role of itself is more investigative than adjudicative. [ 60 ] Finally, as to Mr. Roberts’ claim that the Commissioner’s decision was tainted by accepting the Chief’s “explanation” for Mr. Roberts’ belief that MJ should be charged because he was acquitted, I note the following: Judge Brazil acquitted Mr.

Roberts of the criminal harassment charge because she was concerned about MJ’s credibility. Judge Brazil reviewed the evidence carefully and explained why she had that concern by referring to that evidence. [ 61 ] And then Judge Brazil added this observation, when discussing the sexual assault causing bodily harm charge: The credibility concerns regarding M. J.’s evidence with respect to the criminal harassment allegation must also inform my decision respecting the allegation of sexual assault with a weapon.

Her evidence was clear and unchallenged on this issue, but it is essentially her word against his. [ 62 ] This part of Judge Brazil’s reasoning is particularly noteworthy, and I repeat it to emphasize it: “Her [MJ’s] evidence [on the sexual assault with a weapon charge] was clear and unchallenged on this issue, but it is essentially her word against his”. And this is why I note it: Even though MJ provided Judge Brazil with “clear and unchallenged” evidence on a very serious charge, Judge Brazil declined to accept that evidence as sufficient to find beyond a reasonable doubt that Mr.

Roberts was guilty of the offence. [ 63 ] Essentially, Judge Brazil was not sure enough from MJ’s “clear and unchallenged” evidence to find that Mr. Roberts was guilty.

Her doubt sprang from the mixed signals that she received from MJ in the evidence she gave about the public mischief charge, which Judge Brazil found “must also inform my decision respecting the allegation of sexual assault with a weapon”. [ 64 ] Judge Brazil’s lingering doubts would also have hovered over the whole of the MJ-Roberts’ relationship just as certainly if she had examined the complete record that the Constabulary has amassed on the couple since they first came to the force’s attention in the early months of 2018. It is those same doubts that colour the investigation that A/Sgt.

Reynolds wrestled with during the 11 or so months she was on the file and account for the confidence that the Chief of Police and the Commissioner expressed in their decisions about the sufficiency of A/Sgt. Reynolds’ investigation and her decision not to charge MJ. [ 65 ] For example, in his decision, the Chief noted that A/Sgt. Reynolds “…could not discount context, plausible

interpretations or statements of opinion when considering charges of perjury or mischief. She was required by law to consider whether she had reasonable grounds, as defined above”. The challenge for A/Sgt. Reynolds’, just as it was for Judge Brazil, was to sort through the “context” of the MJ-Roberts’ relationship, to go behind their strong “opinions” about each other and to determine whether there were “plausible

interpretations” or explanations for their actions, short of criminal behaviour. [ 66 ] Invariably, A/Sgt. Reynold found plausible

interpretations or possible explanations that nullified the reasonable grounds she needed to lay charges against MJ. Of course, A/Sgt. Reynolds did scrutinize the evidence she received during her investigation to the depth that Judge Brazil did at trial, nor was she required to: A/Sgt. Reynolds did not have to be satisfied beyond a reasonable doubt of the evidence she was considering. [ 67 ] But the officer was bedeviled nevertheless by the same lingering concerns about MJ’s and Mr. Roberts’ credibility as was Judge Brazil. Faced with those concerns, she chose wisely not to charge MJ, despite Mr.

Roberts’ protestations to the contrary and the intense pressure he put upon her. The Chief of Police and the Commissioner also acted appropriately when they endorsed her decision. [ 68 ] Mr. Roberts’ claims that the Commissioner and by extension the Chief of Police and A/Sgt. Reynolds erred palpably in their decisions and their errors are of an overriding character. The Oxford Dictionary defines “palpable” in its adjectival format, when referring to a feeling or atmosphere, as “so intense as to seem almost tangible”.

In the same format, it defines “overriding” as “more important than any other considerations”. [ 69 ] I find no error in the Commissioners’ decision which manifests that “intensity” of character nor is so “important” as to justify interfering with it, or the decisions of the Chief of Police or A/Sgt. Reynolds’ that preceded it. I dismiss Mr. Roberts’ Originating Application with costs, to be taxed under Column 3 of the Scale of Costs.

Conclusion [ 70 ] John Roberts applied under section 36(1) of the RNC Act by Originating Application to appeal a decision of the Royal Newfoundland Constabulary Public Complaints Commission. He claimed that the Commissioner erred on her appeal from a decision of the Chief of Police, when she dismissed a public complaint, he filed against a member of the Royal Newfoundland Constabulary. [ 71 ] The Court dismissed the Originating Application.

It was not satisfied that the Commissioner had committed palpable and overriding error in her decision, nor by extension had the Chief of Police and the investigating police officer erred in their decisions. It ordered Mr. Roberts to pay costs, to be taxed under Column 3 of the Scale of Costs. Order [ 72 ] In the result, I order that:

1. John Roberts’ appeal of the decision of the Royal Newfoundland Constabulary, Public Complaints Commission is dismissed; 2. John Roberts’ pay the costs of the Commission to be taxed under Column 3 of the Scale of Costs. _____________________________ Garrett A. Handrigan Justice