Grievance Case Summary - G-650

Following a physical struggle, the Grievor and a second RCMP member arrested a complainant, in part for resisting arrest and assaulting a police officer. During the ride to the detachment, the complainant purposely banged his head against the Plexiglas divider. The complainant suffered facial injuries which he alleged were attributable to the officers assaulting him. The Grievor was investigated, charged with assault and brought to trial. He asked for "Legal Assistance at Public Expense" (LAPE) on three occasions and the Force approved each request. At trial, he testified that he did not assault the complainant, whose wounds he asserted were self-inflicted. The trial judge believed the complainant was more credible than the Grievor and found the Grievor guilty.

The Grievor appealed the conviction, contending that the findings of fact and credibility made by the trial judge were wrong in law and that the trial judge had also erred in his assessment of the evidence. The Grievor requested further LAPE for the appeal stage. His request was denied by the Respondent, who stated that the Grievor had not acted in good faith or in the interests of the Crown, two of the three eligibility criteria for LAPE set forth in the Treasury Board's LAPE Policy (TB LAPE Policy). The Respondent provided no further explanation for his decision. The Court of Appeal later ordered a new hearing, finding in part that the trial judge had based his credibility findings on unreliable evidence and had possibly erred in his application of the burden of proof.

The Grievor filed a grievance contesting the denial of his request for LAPE for the appeal phase. After the grievance was denied on its merits at Level I, the Grievor filed the grievance at Level II.

The ERC found that the Respondent's denial of the Grievor's request for appeal phase LAPE violated the Grievor's right to procedural fairness and was inconsistent with the TB LAPE Policy. The Respondent's decision provided no reasons and simply consisted of a refusal of the Grievor's request and a brief reference to the TB LAPE Policy. There was no assessment of the presumption of eligibility mandated by the Policy and no explanation of the basis on which LAPE eligibility criteria was not met. In his submission, the Respondent stated that he based his decision on the trial judge's findings. Although the judgment of a trial judge or the findings made as part of such a judgment could be relevant and appropriate to the assessment of a request for appeal LAPE in some instances, this was not one of them as the findings of the trial judge relied upon by the Respondent in this matter were the precise findings being contested by the Grievor. In other words, in this case, the reason for the request for LAPE and the basis for its denial are indistinguishable.

In addition, given the above-noted deficiencies with the Respondent's decision and, in light of the concerns raised by the Court of Appeal in its decision, the ERC found that the Grievor's request for LAPE for the appeal phase should be reconsidered and approved pursuant to the TB LAPE Policy.

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