Grounds for charge against former RNC officer, but conviction unlikely: leaked report

A leaked review of a retired Royal Newfoundland Constabulary sergeant's conduct saysthere are grounds to charge him with obstruction of justice but"a reasonable likelihood of conviction does not exist."

In the review, dated Sept. 24, former Crown attorney James Maher says Tim Buckle did not use proper discretion when he warned fellow officer Sean Kelly in 2012 that Kelly was being investigated for makingindecent phone calls.

"Sgt. Buckle's call to Sean Kelly is capable of being conduct that tended to obstruct, pervert or defeat the course of justice," wrote Maher in the report, obtained by CBCNews.

"He was advising Sean Kelly that a criminal investigation was being commenced, that he would have to explain why the calls came from his phone, and that he was giving him a heads-up because he was going to have to come up with answers."

Maher's report

He was clearly acting out of favouritism to a fellow officer.- James Maher

Buckle, who was an on-duty member of the RNCat the time, called Kelly on a recorded police phone.

According to Maher's report, Buckle said they were "jammed up in and how to get around this."

"You've gotta come up with somebody that called that number twice that used your phone, like this is on the record with Bell Aliant that that cellphone called that location twice, and the lady is saying that the perp called her twice around the same time," said Buckle, according to the report.

Kelly convicted in 2015

The report says Buckle also said, "I'm finding it kind of funny, actually, but like I said, just to give you a heads-up so that in case someone asks you further questions."

Following the phone call, Buckle, who was presidentof the Royal Newfoundland Constabulary Association at the time, reported the matter to his supervisors, and an investigation of Kelly was initiated.

Two months later an investigation into Buckle's contact with Kelly began.

In 2015, Kelly was convicted of making indecent phone calls and misleading police by making false statements.

In hisreport,Maher saysBuckle did not exercise proper discretion.

"In contacting Kelly, he was clearly acting out of favouritism to a fellow officer. Furthermore, there is nothing in these circumstances to suggest that there was a public interest in Sgt. Buckle calling Sean Kelly."

But Maher concludes there's reasonable doubt that Buckle intended to interfere with an investigation, making conviction unlikely.

"It is Sgt. Buckle's position that he could not believe that Sean Kelly would be so stupid as to use his police phone to make indecent calls, so there had to be another explanation [and] he was calling to get that explanation," writes Maher.

It is plausible that Sgt. Buckle was calling Sean Kelly in the hope that he would explain himself.- James Maher

Supporting that position, says Maher, is that Buckle called on a recorded police phone when he could easily have used a personal phone or texted, and that the audio of the call reveals that the conversation starts out as cordial but becomes less friendly.

"It is plausible that Sgt. Buckle was calling Sean Kelly in the hope that he would explain himself. Sgt. Buckle has stated that when he realized that Sean Kelly had no explanation for the call realized that Kelly was probably guilty. In my opinion, this change in tone is evident from the recording," writes Maher.

While Maher found grounds for an obstruction of justice charge, he also concluded that there are no reasonable grounds to charge Buckle with counselling the commission of public mischief.

Buckle's conduct investigated

An early internal RNCinvestigation concluded acomplaint against Buckle was unfounded and there were no breaches of legislation or policies.

After Kelly's conviction, the province's director of public prosecutions, Donovan Molloy,reviewed the RNC's investigation of Buckle.

Molloy'sreport was critical, saying the RNCinvestigation was "inadequate, insufficient and had the appearance of a perfunctoryexercise that began with the view that Sgt. Buckle had not engaged in any misconduct."

It's truly unfortunate that this matter has been ongoingfor nearly six years and at considerable cost to taxpayers.- Tim Buckle

Molloyalso concludedit was likely that Buckle intended to obstruct justice when he called Kelly but that there was no reasonable likelihood of conviction.

The RNCthen referred the investigation to the Ontario Provincial Police, which concluded Buckle's actions met the test for obstruction of justice but concluded there were not reasonable grounds to lay a charge.

Buckle hopes it's over

Buckle says he is "generally pleased" with its findings.

"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," wrote Buckle in a statement to CBC.

He says he's ready to move on and put this chapter of his life behind him.

"It is truly unfortunate that 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," he wrote in his statement.

The provincial Justice Department told CBCit is working on a statement, but that has not yet been provided.

Read more from CBC Newfoundland and Labrador