Grievance Case Summary - G-635

The Grievor was the team leader for a murder investigation. The presiding Court imposed a ban on the disclosure of information related to the investigation. In late 2009, the Force received information that the Grievor had engaged in an inappropriate relationship with a protected witness. Soon after, the Force formally requested an external police service to conduct a Code of Conduct and a criminal investigation into the Grievor’s actions.

In April 2010, the Grievor requested and received authorization for Legal Assistance at Public Expense (LAPE) for an initial consultation with a lawyer pursuant to the Treasury Board (TB) LAPE Policy. In October 2010, LAPE of up to $50,000 was approved for the criminal investigation phase. The criminal investigation concluded in the fall of 2010. The Grievor’s LAPE was terminated in December 2010. In October 2011, the Grievor’s LAPE was reinstated by another approval authority retroactive to April 2010 for up to $10,000, which was that approval authority’s limit.

In June 2011, the Grievor was charged with several criminal offences. In April 2012, the Grievor requested LAPE for the court appearance and trial phases of his criminal proceedings.

The Grievor’s Commanding Officer (CO) and Human Resources Officer (HRO) recommended that the Respondent deny both the payment of LAPE in excess of the previously-approved $10,000 as well as the request for trial phase LAPE. On November 22, 2012, the Respondent denied the Grievor’s request for trial phase LAPE and terminated the Grievor’s existing LAPE.

The Grievor grieved the Respondent’s decisions. The Grievor’s submissions centered on the lack of information before the Respondent and the fact that the Respondent provided no rationale for his decision. The Respondent argued that, given that the external criminal investigation resulted in criminal and Code of Conduct allegations, once the investigation was underway the initial presumption of eligibility for LAPE contained in the TB LAPE Policy evaporated. Therefore, the onus was on the Grievor to establish he met the eligibility criteria in the policy but the Grievor chose not to do so. The Grievor countered that the Court’s disclosure ban prevented him from providing the information that would establish his eligibility and that the existence of criminal charges was not grounds for denying LAPE.

The Level I Adjudicator denied the grievance on its merits. She found that the Respondent’s decision lacked reasons but that the error was remedied by disclosure during the Early Resolution (ER) Phase and the Respondent’s written submissions. The Adjudicator found that once the initial presumption of eligibility was gone, the onus was on the Grievor to establish that he met the eligibility criteria. The Adjudicator was not convinced that the information the Grievor was prevented from sharing would likely alter his LAPE eligibility. Therefore, she found that his inability to use that information was not an exceptional circumstance for purposes of the TB LAPE Policy.

Sufficiency of Reasons

The ERC found that, while the TB LAPE Policy does not expressly require written reasons for LAPE denials, the Supreme Court of Canada’s decision in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 requires that administrative decision-makers provide written reasons where the decision has important significance for the individual. The ERC noted that LAPE decisions are of particular significance to RCMP members and found that the Respondent had provided no reasons for his decision. Further, neither the disclosure of materials during ER nor the Respondent’s written submissions could rectify the Respondent’s lack of reasons.

Denial of Trial Phase LAPE

The ERC found that the Respondent’s decision was contrary to section 6.1.4 of the TB LAPE Policy which requires an approval authority to presume that the requesting member has met the basic eligibility criteria in section 6.1.5 “unless or until there is information to the contrary”. The presumption of eligibility does not disappear upon the laying of serious criminal charges as such a result would be counter to the very purpose of the TB LAPE Policy.

In this case, there was little information on the record regarding the Grievor’s conduct. The Grievor explained why he was prevented from providing information. The Respondent did not contest the existence or scope of the Court’s disclosure ban, nor did he rely on other evidence to support his decision. The Respondent made repeated attempts to obtain an evidentiary basis for the criminal charges against the Grievor. However, it is not clear from the record whether such information was provided to the Respondent prior to his decision. If an evidentiary basis was provided to the Respondent, his decision should have reflected that information. Rather, the record indicates that the information before the Respondent did not contain sufficient, reliable evidence to rebut the presumption of eligibility.

Termination of Previously Approved LAPE

The ERC found that the Respondent’s decision to terminate the Grievor’s previously approved LAPE was inconsistent with section 6.1.12 of the TB LAPE Policy which permits termination of LAPE only if, subsequent to the initial approval, it became clear that the Grievor did not act in good faith, in the interests of the Crown or within the scope of his duties or course of employment. The ERC found that the onus was on the Respondent to identify information that would permit the termination of LAPE in accordance with section 6.1.12. However, neither the Respondent’s decision nor the record contains such information.

The ERC recommends that the Level II Adjudicator allow the grievance. As corrective action, the ERC recommends reinstating the Grievor’s previously approved LAPE retroactive to December 10, 2010 and authorizing LAPE for the trial phase of the Grievor’s criminal proceedings.

The Commissioner has yet to render a decision in this matter.