G-772 - Legal counsel at public expense

The Grievor became involved in a high-profile investigation. In doing so, the Grievor was responsible for the protection of witnesses. After a complaint and a subsequent investigation, the Grievor and two other members were charged with a number of criminal offences and had Code of Conduct contraventions referred to an adjudication board.

On August 25, 2010, the Grievor was approved to receive Legal Assistance at Public Expense (LAPE). The Grievor made a request to receive additional LAPE funding. In November 2012, the Respondent denied the Grievor’s request for additional funding. The Respondent provided a letter stating that he denied the request for LAPE at the trial phase as the Respondent was not satisfied that the Grievor met the three criteria set out in the Treasury Board Policy on Legal Assistance and Indemnification (TB LAPE Policy).

The Grievor then grieved the denial. Initially, the parties reached an impasse regarding disclosure. The matter was referred to a Level I Adjudicator, who denied the Grievor’s request for additional documents. The Grievor then submitted his arguments on the merits, asserting that he was entitled to LAPE as there was no evidence to rebut the presumption of eligibility. The Grievor further emphasized that he met all the requirements of the policy. In the alternative, the Grievor argued that there were exceptional circumstances which allowed for the approval of LAPE. The Grievor also argued the Respondent never provided a proper rationale for the denial, especially in light of the fact that LAPE had been approved before.

The Level I Adjudicator found that the letter denying the Grievor LAPE did not provide sufficient detail as it did not explain why the Grievor did not meet the criteria of the LAPE Policy. However, the Adjudicator found that the subsequent disclosure through the grievance process provided the necessary information to understand why the Respondent made his decision. The Adjudicator found that the Grievor was not entitled to LAPE. She found that the LAPE Policy required a new request to be presented at each stage of a proceeding which allowed for fresh consideration. Previous approvals did not dictate subsequent approvals. The Adjudicator relied on previous findings of the ERC to state that a member could not receive LAPE where their actions were found to violate the RCMP Code of Conduct.

The Adjudicator found that there were no exceptional circumstances to grant the Grievor LAPE as there was no public interest to do so as required by the policy. Therefore, the Adjudicator denied the Grievance.

Sufficiency of Reasons

The ERC referred to its findings in G-635 that LAPE decisions require written reasons. The ERC observed that the Respondent’s decision did not provide any reasons. Further, neither the disclosure of materials nor the Respondent’s written submissions could rectify the Respondent’s lack of reasons.

Denial of LAPE

The ERC found that the Respondent did not properly consider the presumption of eligibility in the TB LAPE Policy and that the presumption does not disappear upon the laying of criminal charges. As well, there was not enough evidence in the record to deny the Grievor LAPE.

Exceptional Circumstances

The ERC did not consider these provisions as based upon the previous findings, the Grievor was entitled to LAPE.

Apprehension of Bias

The ERC found that there was no evidence to support the allegation that the Level I Adjudicator was biased. Furthermore, a reasonable apprehension of bias on the part of the Level I Adjudicator would have been of limited significance because the Level II Adjudicator was entitled to conduct a full de novo review of the grievance.  

The ERC recommended that the Grievance be allowed. 

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

The Grievor presented a grievance challenging the Respondent’s decision to deny his request for Legal Assistance at Public Expense (LAPE) for his criminal trial. The grievance was denied at Level I. Although the Level I Adjudicator found that the Respondent did not provide sufficient reasons for his decision, she was satisfied that the grievance process provided the necessary clarity for the Grievor to understand the basis for the decision. The ERC explained that the Respondent’s written submissions and subsequent disclosure of material in the grievance process could not rectify the lack of reasons and found that the decision to deny the Grievor LAPE was not supported by evidence. The Commissioner accepted the ERC findings and suggested that the Grievor’s estate, should they desire, present a detailed statement of account of the legal expenses issued by his private counsel, together with any relevant and necessary supporting documentation for reconsideration by the appropriate approval authority. The grievance is allowed.