Articles of Interest

Legal Assistance for Crown Servants

by Christian Roy
Legal Counsel
December 1999

The Committee has had to rule on several occasions on grievances relating to the provision of legal assistance at the Crown's expense. These grievances usually concern the RCMP's refusal to reimburse legal fees paid by members to be represented in investigations or court hearings. The following article provides an overview of the principles that govern the provision of legal assistance to RCMP members.

Relevant policy

According to paragraph 22(1) of the RCMP Act, it is the Treasury Board that establishes the pay and benefits to be paid to RCMP members. The reimbursement by the RCMP of legal fees incurred by its members is thus governed by the Treasury Board and the applicable policy is entitled Policy on the Indemnification of and Legal Assistance for Crown Servants. Effective May 6, 1998, it has replaced the Policy on the Provision of Legal Assistance to Crown Servants. Both policies are relatively similar as concerns eligibility criteria for legal assistance. The new policy is somewhat more liberal, however, in that it now allows the deputy head of a department to authorize payments for legal assistance in cases where the situation does not fall within the basic policy criteria but where there are extenuating circumstances (7.2(c)).

The RCMP provides an interpretation of this policy in chapter VIII.4 of the RCMP's administrative manual. It should be emphasized that the RCMP's policy is an interpretation and that it may not diverge from what is stated in the Treasury Board policy.

Representation

A member who is eligible for legal assistance will be represented either by counsel from the Department of Justice of Canada or private counsel. If there is a risk of a conflict of interest between the Crown and the servant, representation shall be by private counsel.

Eligibility criteria

Under the Treasury Board policy, a member must meet certain conditions in order to be eligible for legal assistance. A basic condition is that he must have acted within the scope of his duties. A subsidiary condition is that he must have met reasonable departmental expectations, in this case those of the RCMP. If these two conditions are met, it is government policy to provide legal assistance in the following circumstances:

• when the member is required to appear before or be interviewed in connection with a judicial investigation, or other inquest or inquiry;
• when the member is sued or threatened with a suit;
• when the member is charged or likely to be charged with an offence; or
• when the member is faced with other circumstances that are sufficiently serious as to require legal assistance.

a) The member acted within the scope of his duties

The need for legal assistance must arise as a result of a job related matter or activity. This means that the act giving rise to the need for legal assistance must have been performed in furtherance of Force work. This can be contrasted with an action taken strictly for personal ends.

When examining the member's actions in light of the scope of duties test, it is not relevant to assess the manner in which they have been taken. An activity may pass the scope of duties test even if it was performed incorrectly, or was irregular, unauthorized or even illegal. As long as it was performed in furtherance of Force work, the member will be considered to have been acting within the scope of his duties. It should be noted, however, that a criminal conviction in relation to the action could be pertinent if the nature of the criminal violation tended to demonstrate that the member had acted for his personal gain. This is what the Committee explained in the matter reported at G-134, where a member was convicted of attempted fraud for submitting a claim for a meal that he had not purchased because it had been provided by the employer.

Cases referred to the Committee cover a range of actions that were considered as having been committed within a member's scope of duties. In G-63, for example, the member had been charged for keeping a citizen in custody in a police vehicle. The citizen had just been released on a promise to appear when the member detained him in the vehicle while he was checking into the possibility that the man had committed another criminal act. The Committee found that the member's action was related to his duties. In another case, G-175, the member had sprayed pepper spray into a cell, toward a prisoner who was agitated, even though the latter was handcuffed and shackled to the floor of the cell. In G-200, the member was accused of possessing a restricted weapon. He had agreed to keep three antique guns for a family that he knew, until they could settle the mother's estate and register the weapons. At first, he stored the weapons in his office, but then he took them home when the RCMP office moved to another location. The Committee found that the possession was part of his duties, since, according to the evidence, his intention was to perform a police duty in keeping the weapons. The fact that he had not followed official procedures to register the weapons or that he had not treated them as seized articles did not exclude his actions from the scope of his duties.

There are also cases where the Committee found that the action leading to a need for legal assistance had been taken for the purpose of obtaining a personal benefit. In G-122, for example, the member was the custodian of an exhibits vault and he had been accused of theft, as a result of removing drugs from the vault for personal consumption. He claimed that he had acted within the scope of his duties as custodian since this theft had occurred while he was exercising these duties. The Committee explained that it was the act of stealing the drugs, and not the act of guarding the vault, that had led to the criminal charge and the need for legal assistance. The theft had been committed for personal gain. In G-153, the member had sexual relations with a person whom he was driving back after intercepting her for impaired driving. He had been accused of obstructing justice and other crimes. According to the Committee, it was clear that it was the sexual relations, not the fact of driving the person in his patrol car, that had led to the charges. The Committee found that the sexual relations were solely for the member's benefit and that he was not entitled to legal assistance at the Crown's expense.

b) The Member's actions must have met reasonable RCMP expectations

Not only must the actions have been taken within the scope of duties, they must also have met reasonable RCMP expectations. This condition is subsidiary to the condition concerning the scope of duties. The criterion establishes an objective - not subjective - standard. This means that the member's actions must be examined to see whether they were actions that a reasonable person would have taken in good faith and with a reasonable standard of care. The criterion may not be used to refuse legal assistance for the reason that a member omitted to comply in a quasi-perfect manner with a directive or practice. In terms of eligibility for legal assistance, it would not be reasonable to expect a member to have complied perfectly with RCMP policies.

The matter reported at G-200 gives a good illustration of the limits of what could be considered reasonable expectations. As was mentioned earlier, the case concerned a member who had in his possession weapons that had not been duly registered. They had been given to him by the members of a family that he knew, until they could settle their mother's estate and register the guns. He had these guns in his possession for 21 months. Throughout this period, he had not filed any report to the effect that he had these weapons. He had not opened any file and had done nothing to identify them. The Committee ruled that the member had omitted to record his processing of the weapons in writing or in any other official manner that might have been consistent with his intention of discharging a police function. This omission showed that, in general, his actions failed to comply with those expectations of the RCMP which would have been reasonable in the circumstances. He could have complied in a less than perfect manner with the provisions of the Operations Manual on the processing of seized articles and still met the RCMP's expectations in a general way. However, he had not complied with any of the guidelines provided for such a situation, and this over a very long period of time. Consequently, despite his good faith, his honourable intentions and the fact that his actions were within the scope of his duties, the Committee found that he was not eligible for legal assistance by the Crown.

Specific situations

a) False or unfounded allegations against a member

What happens when there is no specific action to be assessed? In general, in cases of requests for legal assistance, it is possible to identify the specific action giving rise to the need for assistance. Usually, this is the action which is the subject of the investigation, the criminal charge, or a suit. The action may then be assessed on the basis of applicable criteria. When it is clear that the act was committed, it is possible to carry out the assessment. However, when it is not possible to conclude that the member committed the act in question, how can it be determined whether he acted within the scope of his duties and in accordance with RCMP expectations? This situation could, as an example, result from false accusations being made in reprisal for legitimate police duties. In such a case, it becomes necessary to assess the general circumstances of the matter and avoid limiting the evaluation to the action that is subject to a charge. For example, in G-181, the member was accused of several criminal violations related to a case of sexual abuse of children. The Committee found that the member had not been involved in the alleged criminal acts. The Committee therefore examined the circumstances from a broader perspective. According to information on file, there was no personal relationship between the victims and the member. The identification of the member by the victims appeared rather to result from the sole fact that he was a policeman who was visible to them in the community in question. Since the member had been linked with the criminal acts by reason of his activities as a police officer, the circumstances that led him to have to defend himself had therefore arisen in the context of his duties.

b) Duties of an administrative nature

In G-162, the Committee took into account the Commissioner's Standing Order (CSO) concerning members' duties and found that administrative actions could, as a category, be covered by the policy on legal assistance. The CSO states that in addition to their duties under the Act and Regulations, members must perform duties of an operational and administrative nature, including related support functions, as required for the efficient operation of the RCMP. In this matter, a claim for travel costs had to be assessed. Although the Committee had judged that the member had acted for personal purposes by submitting the claim for a trip he had not taken, it found that the RCMP's position, that the policy does not cover administrative actions such as submitting a claim, was unfounded.

In G-179, Committee also assessed the behaviour of a civilian member in relation to actions that were not directly related to his duties. The member had approached a colleague to attempt to solve a workplace dispute. The colleague became agitated and approached the member, pointing a finger in the member's face. The member's reflex action was to push away the colleague's hand, which led to a complaint of assault. In this case, it was necessary to examine the action of approaching the colleague as being the triggering component. The Committee judged that the purpose of the member's initiative was to defuse the workplace conflict. It was an action taken in the interests of the RCMP.

c) "Other circumstances that are sufficiently serious" - internal investigations

The fourth circumstance in which a member can be indemnified by the Crown for legal assistance is "when [he is] faced with other circumstances that are sufficiently serious as to require legal assistance." The Committee has not often had an opportunity to examine what might come under the heading of circumstances that are sufficiently serious. In general, requests for legal assistance concern situations similar to the first and third set of circumstances mentioned in the policy, i.e., appearing before or being interviewed in connection with a judicial, investigative or other inquest or inquiry, and being charged or likely to be charged with an offence.

In G-181, however, the Committee examined the issue of what sufficiently serious circumstances might be. The member had requested legal assistance in the context of a disciplinary investigation of which he was the subject. This was the matter referred to above where it was alleged that he had participated in the sexual abuse of children. The Committee found that an internal investigation could be considered a serious circumstance under the policy. This type of investigation may lead to serious disciplinary measures and result in dismissal. The case at issue represented a sufficiently serious circumstance, and the fees related to the investigation could be reimbursed.

Practical advice for submission of a request for legal assistance

In closing, it should be emphasized that a member who submits a request for legal assistance must be able to demonstrate that he acted within the scope of his duties and in accordance with reasonable RCMP expectations. It is not sufficient, for example, to simply claim that one was on duty at the time. In order to avoid reaching the grievance stage, the initial request should therefore contain a detailed description of the circumstances that led to the need for assistance, so that the decision-maker may determine whether the eligibility criteria have been met.

If the grievance stage is reached, it must be remembered that the burden of persuasion rests on the grievor. The precise action giving rise to the need for legal assistance must be clearly identified, and the circumstances of the matter must be explained in detail. It must be established that the act in question was taken in furtherance of Force work and that it met reasonable RCMP expectations. Once these points have been established, the burden will then fall on the RCMP to justify its decision not to grant legal assistance. It can either demonstrate that the member's version of the facts is not accurate, or demonstrate that the member's action was taken for personal gain, and thus not within the scope of his duties, or that the member did not, in general, meet RCMP expectations.

Lastly, it should be noted that a member who has been denied legal assistance may ask for reconsideration of the request at subsequent stages of any legal proceedings.

December 1999