Grievance Case Summary - G-636

The Grievor had been a Constable for 3½ years when he responded to a highest priority and risk call. Dispatch broadcasted a Tone Alert after a 911 caller advised that a man with a brain injury had fired two shots at a golf course where his former spouse worked and then left the golf course in his truck.

The Grievor was the first officer to encounter the suspect. The Grievor pulled the truck over, exited his unmarked police vehicle and repeatedly ordered the suspect to exit his vehicle and get down on the ground. A witness to the encounter thought the suspect was very slow in complying with the Grievor's demands. A local reporter captured a portion of the arrest on video. The 24-second reporter's video shows the Grievor issuing demands to the suspect; opening the suspect's driver's door; and, when the suspect is kneeling on the ground, kicking the suspect in the head while shouting “Get down”. The reporter's video of the kick was shown on local, provincial and national news. The Grievor was suspended with pay and later charged criminally with assault causing bodily harm.

The Respondent authorized two requests for Legal Assistance at Public Expense (LAPE) for the Grievor's initial consultation with a lawyer and for court attendances. The Respondent subsequently terminated the Grievor's LAPE after a stoppage of pay and allowances order (SPA Order) and decision (SPA Decision) was issued against the Grievor. The Grievor grieved the Respondent's LAPE termination decision, arguing that he met the eligibility criteria.

The Level I Adjudicator excluded the Respondent's late Level I submissions and documentation and concluded that he did not have enough information to determine whether the Respondent's termination decision was consistent with policy. He found the Grievor had not established his case and denied the grievance on the merits.

At Level II, the Grievor furnished new evidence from his criminal proceedings to support his eligibility for LAPE: the transcript of a Use of Force expert's testimony that detailed several issues, including a lack of supervision during the arrest, inadequate information relayed from dispatch during the incident, and a lack of training for high risk situations; and, the trial judge's reasons for sentence in which the trial judge found that the responding officers believed that the person they were looking for had been engaged in an active shooting of people at the golf and that there was no evidence that the Grievor acted out of anger or with malicious intent.

Preliminary Matters

The ERC found that the Level I Adjudicator erred in excluding the Respondent's Level I submissions. The administrative time limits set forth in the RCMP Administration Manual, chapter II.38 do not have the force of law and cannot prevent a Level I adjudicator or the Commissioner from considering a late submission critical to the proper adjudication of the grievance.

The ERC also found that the transcript of the Use of Force expert's testimony and the trial judge's reasons for sentence were admissible at Level II. Both post-dated the Level I decision, the Respondent had an opportunity to comment on their admissibility, the transcript included information relevant to the Grievor's LAPE eligibility, and the reasons for sentence contained analysis relevant to the Commissioner's consideration of the grievance.

Merits

The ERC found that the Respondent's termination decision was inconsistent with section 6.1.12 of the Treasury Board (TB) LAPE Policy which requires termination only “if at any time during or after the proceedings it becomes clear” that the Grievor did not meet the eligibility criteria set forth in section 6.1.5. The Respondent's justification for termination was the SPA Decision which did not involve an assessment of the LAPE eligibility criteria. An SPA order and the provision of LAPE each serve different purposes and are based on different criteria. An SPA order is intended to protect the Force's interests in extreme circumstances while LAPE, which may be provided to a member facing criminal charges, is intended to safeguard the member's rights. An SPA order is not necessarily inconsistent with the provision of LAPE and is not, in and of itself, justification for termination. In this case, there was no new information, evidence or analysis in the SPA Decision that justified termination of the Grievor's LAPE. While the reporter's video may have been sufficient to support the SPA Order, it was not sufficient to terminate the Grievor's LAPE.

The ERC also found that the Use of Force expert testimony and the reasons for sentence demonstrate that the Grievor met the section 6.1.5 basic eligibility criteria and that a reconsideration and approval of the Grievor's LAPE requests is required pursuant to section 6.1.13 of the TB LAPE Policy.

The ERC recommended to the Commissioner of the RCMP that he allow the grievance on the merits and reinstate the Grievor's LAPE.

If the Commissioner disagrees with the finding that the Respondent's decision to terminate the Grievor's LAPE was not consistent with applicable policy, the ERC recommends to the Commissioner that he direct the Respondent, as the approving authority, to reconsider and approve retroactively the Grievor's requests for LAPE, subject to the advice of the Advisory Committee on Legal Assistance.

The Commissioner's decision, as summarized by his office, is as follows:

The Grievor presented a grievance against the Respondent's decision to terminate his legal assistance at public expense (“LAPE”). The Commissioner disagreed with the ERC's findings that the Respondent's decision is inconsistent with applicable policy. However, the Commissioner concurred with the ERC that the new evidence tendered by the Grievor is sufficient to warrant a reconsideration of his eligibility for LAPE. The grievance is allowed.

The Commissioner suggested the Grievor present submissions together with a copy of the legal expenses incurred and any other relevant and necessary supporting documentation for consideration by the appropriate approval authority, subject to the advice of the Advisory Committee on Legal Assistance.