G-773 - 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. The Grievor then received a number of approvals for Legal Assistance at Public Expense (LAPE). One of the Grievor’s requests for LAPE was denied then reinstated after the Grievor provided a statement to the Commanding Officer of “X” Division.

On May 7, 2012, a document was prepared on behalf of the Grievor to request the Respondent’s approval of LAPE up to $50,000. The Respondent denied the internal request to approve the Grievor’s LAPE and provided the Grievor a letter which stated that he was not satisfied that the Grievor met the three eligibility criteria set out in the Treasury Board Policy on Legal Assistance and Indemnification (TB LAPE Policy).

The Grievor grieved the Respondent’s decision. The arguments centered on: the sufficiency of the Respondent’s reasons, the inconsistency with previous approvals and the potential for the approval to be justified as exceptional circumstances. The Level I Adjudicator found that, even though the decision letter does not explain the basis for the decision, the information that came out through the grievance process clarified the basis for the Respondent’s decision. The Adjudicator found she could infer from the information relied upon by the Respondent that the impugned decision was based on the documents disclosed and that those documents led to a proper decision to deny LAPE. Specifically, the Adjudicator found that the approval of criminal charges against the Grievor meant that LAPE was undeserved. 

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.

Apprehension of Bias

The Grievor, in his Level II submissions, alleged that the Respondent was biased against the Grievor in his decision to deny LAPE. The Grievor relied on an article available to the Grievor prior to the commencement of the Grievance. As the allegation was not raised at Level I, the ERC found that the allegation could not be considered at Level II. 

The ERC recommended that the Grievance be allowed. 

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

The Grievor challenged 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 allowed the grievance. However, as a result of the Grievor’s subsequent guilty plea to a charge under the RCMP Act, the Commissioner determined that the corrective action is moot.