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Robert Dziekanski's mother Zofia Cisowski talks with a friend outside the public inquiry into her sons death March 23, 2009 as RCMP Cpl. Peter Thiessen waits for the lunch break. (JOHN LEHMANN/GLOBE AND MAIL)
Robert Dziekanski's mother Zofia Cisowski talks with a friend outside the public inquiry into her sons death March 23, 2009 as RCMP Cpl. Peter Thiessen waits for the lunch break. (JOHN LEHMANN/GLOBE AND MAIL)

Courts

Mounties’ cases delayed by muddy legal policy Add to ...

Several criminal cases against Mounties in British Columbia are facing delays as the RCMP considers whether to pay for defence lawyers and in some instances to revoke legal funding after it was approved.

It’s a legal policy critics complain is too subjective and places an undue burden on officers who find themselves on the other end of the justice system.

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The issue was highlighted in Vancouver last week, when lawyers for four officers charged in connection with their involvement in a high-profile gang investigation told the court the force had yet to confirm whether it would pay the Mounties’ legal bills.

A separate case involving three RCMP officers and a civilian jail guard in Kamloops, B.C. – charged over allegations they didn’t stop two female inmates having sex while on video surveillance – was delayed in the summer after the officers said the RCMP rejected their funding request.

Those cases, and all others involving RCMP officers, fall under a Treasury Board policy that dictates when the government pays the legal bills for federal public servants. The policy considers whether officers were acting within the scope of their job and if they were acting in good faith.

But David Butcher, a Vancouver criminal lawyer with extensive experience defending police officers, said the enforcement of that policy has changed over time, leaving officers unable to predict if they’ll have to fund their own lawyers.

“There was a period of several years where it appeared the policy was more liberally applied, and it appears to me that they have reverted back to a stricter interpretation of the policy,” said Butcher, who is not involved in either the Vancouver gang case or the Kamloops case.

“These cases are not proceeding in an ordinary and expeditious way, when I think everybody in the community has a right to expect that they will.”

Under the current policy, local divisional headquarters can approve expenses of less than $10,000. Anything higher than that lands on the desk of the RCMP commissioner in Ottawa until those expenses reach $50,000, in which case the minister of public safety has the final say.

That policy, in itself, represents a change, said Butcher. Until recently, regional headquarters could approve requests up to $50,000 without going through Ottawa, he said.

That change, along with the apparent shift in how the policy is applied, has resulted in a number of cases in which funding has either been denied or approved and later revoked, said Butcher.

The gang investigation case in Vancouver involves four RCMP officers who worked on what’s been known as the “Surrey Six” case, in which six people, including two innocent bystanders, were murdered in Surrey, B.C. The officers face a range of charges including breach of trust, fraud and obstruction of justice.

Lawyers for two of the officers withdrew from the case last week, while two others told the court they will pull out unless the RCMP approves legal funding soon.

Michael Bolton, who represents one of the officers, declined to comment, but confirmed he told the court his client’s funding was initially approved by the RCMP, but that approval was later overturned. The officers are now awaiting a final decision from the RCMP commissioner, said Bolton.

Another high-profile case in B.C. involves four RCMP officers involved in the death of Robert Dziekanski, who was stunned with a Taser at Vancouver’s airport in October 2007. The officers are charged with perjury for their testimony at a public inquiry.

Those officers had government-funded lawyers for the public inquiry, but no decision has been made about their perjury trials. Butcher represented one of those officers at the public inquiry, but another lawyer in his firm is handing that officers’ perjury trial.

The RCMP would not discuss the status of legal funding for the Kamloops case, citing privacy issues, but confirmed the force is still reviewing requests associated with the Vancouver gang case and the Dziekanski perjury case.

“I think the public would be pleased to know that we closely scrutinize applications to have legal expenses paid by the taxpayer,” Sgt. Rob Vermeulen said in an e-mail.

An RCMP spokesperson in Ottawa said in a statement that the current policy is under review, but details of potential changes won’t be revealed until they have been approved.

Abe Townsend, a spokesman from the force’s staff relations program, which represents officers in labour issues, said delays make it difficult for officers to prepare potential legal defences and can slow down court cases.

“If they’re going to approve it or they’re going to deny it, that’s another matter,” he said.

“But it’s the delay in the decision that appears to be at the head of the issue. The uncertainty just adds another level of anxiety that really isn’t necessary.”

Townsend suggested that moving the decision-making process back to regional divisions, rather than Ottawa, would be a good start.

“Based on my experience, when the decisions are made closer to the source of activity, they’re normally best-informed,” he said.

Rob Creasser, a former Mountie who now speaks for the Mounted Police Professional Association of Canada, which wants the RCMP to unionize its workforce, suggested a collective agreement that clearly spells out the policy would make the system more fair and predictable.

“If the Treasury Board looked at the case on day one Day 1and said, ‘We don’t feel these fellows were acting in good faith and they’re denied legal funding,’ obviously the members won’t be happy to hear that, but then we don’t have lawyers on board that are in limbo about whether they will be paid and who’s going to pay them,” said Mr. Creasser.

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