Grievance Case Summary - G-647

During the period relevant to the grievance, the Grievor worked at a sub-detachment that served one of Canada’s major international airports. In 2006, Canada Customs searched a male passenger arriving at this airport and detained the passenger for possession of child pornography contained on CD disks. Canada Customs called the RCMP. The Grievor responded to the call, arrested the passenger and seized 24 CDs as evidence. Child pornography charges were brought against the passenger. After a meeting with a Crown Counsel, the Grievor completed copying and labelling the CDs and sent the copies to the Crown for disclosure to the passenger’s defence counsel.

In mid-2006, a co-worker of the Grievor expressed concerns to a supervisor that, in early 2006, he had observed the Grievor downloading to his personal laptop CDs that had been seized in a child pornography case. A criminal investigation into the Grievor’s actions was initiated. In early 2007, while the Grievor was on a family vacation, investigators obtained a General Warrant authorizing a covert search of the Grievor’s workstation and duty locker at the detachment. The CDs pertaining to the Grievor’s investigation of the airport passenger were located in a file folder in his workstation. The search of the Grievor’s locker yielded no images of, nor any media that could contain child pornography. However, investigators found some of the Grievor’s personal firearms in his locker. Another search warrant was obtained for the Grievor’s residence where other firearms were found, as well as RCMP issued items such as gas masks, portable radio, flares and a wire surveillance kit.

The Grievor made a first request for Legal Assistance at Public Expense (LAPE) in February 2007. He made reference to the statutory investigation into three allegations against him (Possession of Prohibited Device, Possession of Child Pornography, Possession of Property Obtained by Crime). This request was denied. In June 2007, the Crown finally laid six criminal charges against the Grievor: Possession of Stolen Property Under $5,000, Possession of a Firearm not registered to the Grievor, Possession of a Prohibited Device (30 and 20 cartridge mags), Illegal Storage of a Firearm, Unlawful Transfer of a Firearm and Breach of Trust. The Crown refused to pursue the child pornography charges. The Grievor presented a second LAPE request, the denial of this second request was the subject of this grievance. The Level I Adjudicator denied the grievance. In the interim, after a five day trial, the judge acquitted the Grievor of the charge that proceeded to trial. While the Reasons for Judgment do not expressly state the charge(s) on which the trial proceeded, the judge’s reasons as a whole indicate that the firearms and breach of trust charges were withdrawn and that the trial proceeded solely on one count of possession of stolen property.

The ERC found that the Grievor’s actions in relation to his handling of the images of child pornography seized from the airport passenger were within the scope of his duties. The same actions underlaid the breach of trust charge. As a result, the ERC found that the Respondent’s decision to deny LAPE to the Grievor was, in part, inconsistent with the TB LAPE Policy and RCMP LAPE Policy. Regarding the charges related to the firearms, the ERC found that the circumstances surrounding these charges were not within the scope of the Grievor’s duties or employment with the RCMP. Thus, the ERC found that the Grievor was not entitled to LAPE in relation to these charges. Lastly, regarding the charge of stolen RCMP property, the ERC found that, at the time of making his decision, the Respondent did not have sufficient information to conclude that the Grievor failed to meet the eligibility criteria for LAPE in respect of this charge. Subsequently, the decision in the criminal trial suggested a work-related justification for the Grievor’s possession of the RCMP equipment. The ERC found that the Grievor should be given the benefit of the doubt with respect to the facts underlying his possession of RCMP property and whether he acted within the scope of his duties and met the reasonable expectations of the Force. Therefore, the Respondent’s denial of LAPE in respect of legal fees incurred in relation to this charge was inconsistent with the TB LAPE Policy and the RCMP LAPE Policy.

The ERC recommended that the Commissioner allow the grievance in part.

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

The Grievor presented a grievance against the Respondent's decision to deny his request for legal assistance at public expense (LAPE) in relation to allegations, criminal charges and trial. The Commissioner agreed with the ERC's findings that the Respondent's decision was, in part, inconsistent with applicable policy. The Commissioner suggested that the Grievor presents a detailed statement of account of the legal expenses issued by his private counsel, together with submissions and any relevant and necessary supporting documentation for presentation to the appropriate approval authority in relation to the specific allegations and charges in respect of which the Respondent erred in denying the LAPE request.