Articles of Interest

Obtaining legal advice: what are the rights of RCMP members?

by Madeleine Riou, Counsel
September 2001

Given the particular nature of their duties, RCMP members are often called upon to take part in legal proceedings and, on occasion, to serve as litigants, either for the defence or the prosecution. In such cases, members will wish to obtain legal advice in order to protect their interests. The following article outlines the parameters governing the right to representation for RCMP members, as defined by Government policy and the rules of natural justice.

Relevant policy

In 1999, an article appeared in the October/December Communiqué on the application of the Policy on the Indemnification of and Legal Assistance for Crown Servants within the RCMP. This policy applies to all civil servants whose employer is listed at Schedule I, Part I of the Public Service Staff Relations Act, which includes all civilian and regular members of the RCMP.

Essentially, the policy recognizes the Crown's obligation, as an employer, to indemnify civil servants and afford them a measure of protection regarding certain costs related to the performance of their duties. RCMP members who are sued for an act they committed while performing their duties as a member of the Force can, under certain conditions, receive legal assistance provided at the Crown's expense. This policy does not apply however to proceedings instituted by members themselves. The RCMP may provide legal assistance to a member at the Crown's expense 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.

Eligibility criteria

Under the Treasury Board policy, for legal assistance to be approved, two conditions must be met: the member has to have been acting within the scope of his or her duties; and the action at issue must be in line with RCMP expectations.

One way to determine if the act at issue was within the scope of the member's duties is to assess whether or not it served strictly personal ends. For example, a member will not be eligible for legal assistance at the Crown's expense if he or she is charged with a criminal offence committed solely for personal benefit. Requests for legal assistance were denied in several such cases where the action at issue, though committed while the member was on duty, was not considered within the scope of the member's duties as an RCMP officer (see cases G-134: fraud; G-122: narcotics theft; G-153: sexual relations).

The second part of this test involves ensuring that the action is in line with what the RCMP should reasonably expect of its members. This is an objective standard, which is assessed by determining whether or not a reasonable person, acting in good faith with due care and diligence, would have taken the same action. For example, in case G-200, the member had agreed to look after three firearms. He was then accused of possessing a restricted weapon without a registration certificate. The Committee found that, in keeping the firearms, the member had intended to discharge a police duty and had therefore acted "within the scope of his duties". However, the Committee also found that the member had not acted "within reasonable departmental expectations", as he had completely failed to follow official firearm registration procedures and to treat the weapons as confiscated items.

As the Committee stated regarding case G-234, the objectives of the Treasury Board policy are thus twofold: "On the one hand, civil servants and members of the RCMP should be able to count on the support of their employer when they are called upon to appear in court in the course of their duties. It is unreasonable to expect an employee to have to pay legal fees for simply doing his job. On the other hand, if an employee abuses his position, Canadian taxpayers should not have to pay for his legal representation, simply because the act occurred while the employee was at work or because he claimed to be acting on behalf of his employer."

Once the Department of Justice (DOJ) makes a determination on the validity of the claim, a lawyer is appointed to represent the member. When the case is a civil action, a DOJ lawyer will normally defend the member. Should DOJ determine that a conflict of interest prevents it from adequately representing a member, a private practice lawyer will be retained and paid by DOJ at a predetermined rate.

Where a member is charged with a federal offence, including a criminal offence, the member can be represented by a lawyer in private practice. Unlike civil actions, criminal charges are of such a personal nature that the member must have every confidence in his or her legal representative. This being said, DOJ will determine the level of experience required from a lawyer to defend a given case, and then set an hourly fee accordingly. The hourly fee for a normal case must not exceed $120 per hour, to a maximum of $10,000 per case. Higher fees can be authorized, on an exceptional basis, for very complex cases. In either event, the fee must be authorized in advance of securing the services of a lawyer.

The Policy on the Indemnification of and Legal Assistance for Crown Servants was amended on June 1, 2001, to reflect changes made to the Policy on the Prevention and Resolution of Harassment in the Workplace, which is highlighted in an in-depth article in the April/June 2001 Communiqué. The main changes are designed to grant automatic legal assistance to public employees who are the subject of a harassment complaint pursued before a court or tribunal if the complaint is determined to be unfounded at the departmental level.

Contrary to other indemnification requests, where the RCMP has discretion to approve or deny legal assistance, it will now be mandatory for the RCMP to provide counsel to a member if the harassment complaint brought against the member is determined to be baseless following an internal review. In such cases, the member has only to inform his immediate superior that such a complaint has been lodged against him before a court or tribunal and to request that defence counsel be assigned to him.

Right to prosecution assistance

While the Treasury Board policy provides for legal assistance at the Crown's expense when employees are involved in cases as respondents, the RCMP Act also gives members the right to be represented by a lawyer or by another member when they themselves institute the proceedings. In such cases, if the member chooses to be represented by a lawyer, he or she must bear all related costs. Under the RCMP Act, the member can be represented when appearing or testifying before a board of inquiry (s. 24.1), a hearing to inquire into a grievance conducted by the External Review Committee (s. 35), an adjudication board hearing regarding a serious disciplinary action (s. 45.1), a discharge and demotion board (s. 45.22) or the Commission for Public Complaints against the RCMP (s. 45.45). In all these circumstances, the member's representative may act on his or her behalf as it relates to appearing, presenting written evidence, making representations and cross-examining witnesses.

Also, under section 47.1 of the RCMP Act and the 1997 Commissioner's Standing Orders (Representation), the RCMP grants legal assistance to members in certain circumstances. Within the RCMP, there is a Member Representative Unit, made up of members having received legal training who represent any member who: is subject to serious disciplinary action; is subject to discharge and demotion proceedings; is a party to a hearing before the External Review Committee; or is presenting a grievance relating to administrative discharge (restricted to discharge for physical or mental disability, abandonment of post or irregular appointment). Members' representatives must meet all standards applicable to members of the legal profession. In addition, they must adhere to the Representative's Code of Conduct [AM ch. XII.9-1].

Right to retain counsel

Above and beyond the right to representation set out in the RCMP Act, do RCMP members have the right to retain private counsel if they deem to have been adversely affected by a decision made by their employer or if they are subject to an inquiry? Be it because the member was denied legal assistance at the Crown's expense, or because he himself instituted the proceedings, can a member of the RCMP be represented by counsel, like any other citizen, if he agrees to bear all related costs?

The courts have recognized that an agency subject to procedural fairness should ideally respect the right to representation by counsel. This right is not however absolute, and agencies enjoy considerable discretion as relates to granting or denying legal representation. Where the law has not formally prescribed the right to representation, the employer must consider the irrevocable nature of the decision and its impact on the rights of the employee.

In Laroche v. Canada (RCMP), [1981] F.C.J. 1108, the Federal Court of Appeal spoke to the right to representation by counsel before an RCMP discharge and demotion board. The applicant in that case claimed that the board's decision was contrary to the rules of natural justice, because he had not been given the opportunity to exercise his right to be represented by a lawyer. Justice Le Dain found that guidelines allowing "any member to be represented by any other member" do not preclude the right to be assisted by independent counsel. The RCMP Act has since been amended to include the right to representation by counsel before boards of inquiry constituted under the Act.

More recently, in case G-248, the issue of the right to counsel was raised in the context of an internal RCMP inquiry into public complaints brought against a member. In that case, the Appropriate Officer refused to share certain documents with the member's lawyer, arguing that the member did not have the right to be represented by counsel at that stage of the process, and that the information requested was protected by the Privacy Act. Though the grievance was denied, because it had not been submitted within the required timeframe, the Committee made the following remarks concerning the Appropriate Officer's position on the right to counsel:

Firstly, I wish to address the Appropriate Officer's comment that there is "no authority for legal representation within the public complaints process unless it is as a result of an investigation and hearing by the Public Complaints Commission". It may be that the Force considers that it is not under an obligation to pay a member's legal expenses, but that does not mean that the member would not be entitled to be represented by legal counsel. On what basis the Force would seek to deny a member's right to legal representation under such circumstances is not evident to me.

[...]

The requirement to be objective, impartial and neutral necessarily carries with it an obligation to inform the member who is the subject of the complaint of the evidence against him or her and provide the member with an opportunity to respond. If a member considers that the presence of legal counsel will be of assistance in that regard, the member should not be deprived of that opportunity, as long as it is understood that the recognition of that right does not necessarily entail a commitment on the part of the Force to pay that member's legal fees.

Given these remarks and the overall rules of procedural fairness that apply to all administrative decisions that affect a member's rights, it would be difficult for the RCMP to deny a member's right to counsel when the member is prepared to bear all related costs, especially since no section of the RCMP Act precludes such representation.