A Halifax police officer used a police computer database to improperly investigate his girlfriend’s ex-husband, alleges a lawsuit filed in Supreme Court Wednesday.
Terry Atkinson tells the Examiner that he served in the armed forces for 25 years as a medic. As a result of that service, he suffers from PTSD.
In his lawsuit, Atkinson says he was married to Crystal Feltmate and the couple had two children together, twins who are now six years old. Atkinson has two older children from a previous marriage.
Atkinson says in the lawsuit he and Feltmate separated in April 2015, and he filed for divorce a year later, in April 2016. Divorce proceedings continued for two more years, and were concluded in 2018. At issue throughout the divorce proceedings was how much time Atkinson would have with the twins. Atkinson tells the Examiner that he now has regular visitation with the children and “everything is fine.”
At some point Feltmate became involved with Halifax Regional Police constable Philip MacDonald. Feltmate and MacDonald now live together.
During the divorce proceedings, alleges the lawsuit, MacDonald “used the Halifax Regional Police Database to query [Atkinson], without lawful justification” and “for personal gain.”
Atkinson tells the Examiner that he thinks MacDonald was looking for information about Atkinson in the police database that could help Feltmate in her divorce proceedings with Atkinson, but no such information exists.
Suspecting that MacDonald was improperly investigating him, Atkinson filed a Freedom of Information and Protection of Privacy (FOIPOP) request for police records about himself. He obtained a response to his FOIPOP in July 2017; that response revealed that queries using the police database system were made on July 23, 2016; June 28, 2017; and July 4, 2017.
Atkinson filed a complaint with the Police Complaints Commission in August 2017, but it was dismissed nine months later, in May 2018.
A letter from Police Commissioner Judith McPhee to Atkinson explains why the complaint was dismissed. The letter was provided to the Halifax Examiner by Atkinson.
The letter does not name Constable MacDonald, but acknowledges that “during the investigation it had been determined that the date your information had been accessed by the subject officer was July 23, 2016.” No reference is made in the letter to the two 2017 queries that Atkinson says were also revealed through the FOIPOP request.
The July 23, 2016 date was the basis for dismissing the complaint, wrote McPhee to Atkinson:
The police officer, who was the subject of the investigation, was informed of the allegation and a meeting was scheduled for February 16, 2018, for the subject officer to answer to the allegation. On February 16, 2018, I received a letter from the subject officer’s lawyer raising the six (6) month timeline for the filing of complaints under the Police Act. Section 29 of the Regulations made pursuant to the Police Act reads:
If a complaint is made more than 6 months after the occurrence that gave rise to the complaint, the complaint must not be processed.
During the investigation it had been determined that the date your information had been accessed by the subject officer was July 23, 2016. That date, in the lawyer’s opinion, put the complaint outside of the six (6) month timeline. The lawyer asked me to review the file and make a determination on whether the complaint should proceed.
On my initial review of your complaint, I had considered the “date of occurrence” to be July 27, 2017, the date the letter was written in response to your FOIPOP request. By using this date, I had allowed for discoverability.
I have reviewed the court cases and the literature which have addressed the interpretation of the timelines and, as such, I find I do not have any discretion, or latitude, to depart from Section 29 of our Regulations. The date of the “occurrence that gave rise to the complaint” is July 23, 2016, and therefore your complaint was beyond the six (6) month timeline and should not have been processed by my office. Given this, the file will be closed without any further action being taken.
The letter presented a Kafkaesque legal impossibility to Atkinson or to anyone else who wants to file a complaint against a police officer: If you don’t learn about a police officer acting improperly until six months after the fact, you have no recourse under the Police Act and the police officer will face no criminal charges or disciplinary action.
That is presumably why Atkinson has filed a civil lawsuit against MacDonald. The suit also names Crystal Feltmate, Dianne Paquet (a lawyer who represented Feltmate in the divorce), the Board of Police Commissioners, and Police Chief Jean-Michel Blais.
The allegations contained in the lawsuit have not been tested in court.
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