Grievance Case Summary - G-648

While he was performing cell block checks, the Grievor observed two female prisoners having a non-violent sexual encounter in a cell. As the cell block was at capacity, there were no other cells available to which the prisoners could be moved. It was alleged that the Grievor viewed the live recording of the sexual activity and failed to stop the encounter. Investigations were held and the Grievor was charged with breach of trust, contrary to section 122 of the Criminal Code. The Grievor submitted a request for Legal Assistance at Public Expense (LAPE) for his court appearance and initial consultation with a lawyer. His requests were eventually approved.

The Grievor later sought further LAPE to cover the preliminary inquiry phase. The Respondent refused the Grievor’s request and terminated his previously approved LAPE, concluding that he had not acted in good faith or in the interests of the Crown, two of the three eligibility criteria for LAPE set forth in Treasury Board LAPE Policy (TB LAPE Policy). The Respondent explained that the Grievor ought to have known that the sexual encounter required his intervention, especially in light of the serious risks that were inherent in the encounter and of the dangers of not intervening. The Grievor filed a grievance in which he grieved the Respondent’s decision to deny his request for LAPE for the preliminary inquiry phase and terminate his previously approved LAPE. After the grievance was denied on its merits at Level I, the Grievor submitted the case at Level II.

The ERC found that the Respondent’s decision to refuse the Grievor’s request for LAPE for the preliminary inquiry phase was inconsistent with the TB LAPE Policy. There was no evidence in the record that the Respondent considered the presumption of eligibility for LAPE required by the TB LAPE Policy when analyzing the Grievor’s request. Moreover, neither the documentation before the Respondent when he made his decision nor the evidence in the record as a whole provided a substantive basis for a conclusion that the Grievor failed to meet the eligibility criteria for LAPE set forth in the TB LAPE Policy which would have rebutted the presumption.

The ERC further found that the Respondent’s termination of the Grievor’s previously approved LAPE was inconsistent with the TB LAPE Policy. The onus was on the Respondent to identify information that would permit the termination of LAPE in accordance the TB LAPE Policy. Yet neither the Respondent’s decision nor the record contained information which became available after the approval of the Grievor’s LAPE that would make it clear that the Grievor did not satisfy the basic eligibility criteria. The Respondent did not assert that the initial approval of LAPE was improper nor did he explain why it became clear the Grievor no longer met the eligibility criteria.

The ERC recommended to the Commissioner of the RCMP that he allow the grievance.

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) and to deny his LAPE request for the preliminary inquiry phase of his criminal proceedings. The Commissioner agreed with the ERC’s findings that the Respondent’s decision is inconsistent with applicable policy. The grievance is allowed. However, the Commissioner determined that the corrective action is moot. During the course of the grievance proceedings, the Grievor was acquitted at trial and, following an application for reconsideration, the Minister approved the Grievor’s LAPE request.