Province refusing to pay legal fees for HMP guards, dispute heading to arbitration

·3 min read

Ambiguous language and the alleged killing of an inmate have led to a dispute between the Newfoundland and Labrador government and the province's largest public sector union.

The province is refusing to pay the legal fees for 10 correctional officers accused of playing a role in the homicide of Indigenous inmate Jonathan Henoche, according to a source close to the situation.

It's believed the total amount could range as high as $1 million to represent the officers in criminal proceedings, let alone any civil actions that are likely to follow.

An arbitrator will be called in to settle the dispute between the government and the officers' union, NAPE.

Both the union and provincial government declined comment for this story.

According to the source, there is a fundamental disagreement between both sides around the wording of the collective agreement.

"The employer shall undertake to assure a full and complete defence to any employee who is sued or charged in a criminal proceeding arising from the performance of his/her duties provided he/she was not deemed to have performed in a negligent manner as determined by the facts or the courts," the collective agreement states.

Sherry Vivian/CBC
Sherry Vivian/CBC

According to several lawyers consulted by CBC News, the phrase "facts or the courts" leaves room for interpretation.

It leaves space for someone other than a judge to interpret the facts of the case, and could allow the province to walk away from covering the guards if it deems them to have acted with negligence.

"Management will abide by the terms of the collective agreement," reads a statement that theTreasury Board Secretariat issued last Tuesday. When pressed for more details, a government spokesperson said they could only provide that one line.

How legal aid works

Information on the Treasury Board Secretariat website states that in cases where the province provides lawyers for its employees, it will also pay for any settlements or damages that arise in civil court.

It also states the province cannot claw back money from an employee in a case where a lawyer has been provided.

That seems to indicate the province could not pay their legal fees in the beginning and then recoup money if the guards are found guilty.

Jonathan Henoche/Facebook
Jonathan Henoche/Facebook

Seven officers are charged with negligence causing death, while three are charged with manslaughter. The officers, who are between the ages of 28 to 51, range in experience from newer guards to a senior lieutenant who has twice been commended by the province for exemplary service at Her Majesty's Penitentiary.

Jonathan Henoche was involved in a physical altercation in his cell, before being taken to the segregation unit in the basement of the jail. It's not clear what happened next, or how much time elapsed before he was pronounced dead.

Henoche was charged with first-degree murder in the 2016 death of Regula Schule, 88, a Swiss-born former missionary who had been living in Happy Valley-Goose Bay. He had been transferred to HMP while he awaited trial.

Sources tell CBC News the incident in Henoche's cell was captured on video.

Once an arbitrator has been appointed to the case, both sides will make arguments and the arbitrator will render a judgment. Both sides will then have a chance to appeal the decision in the Supreme Court of Newfoundland and Labrador.

No timeline of proceedings has been provided to CBC News.

The 10 guards are set to make a first court appearance on Feb. 11 in St. John's.

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