(JENNIFER STAHN / iNFOnews.ca)

KAMLOOPS - A judge wants to hear arguments from lawyers about the legality of the charge against an RCMP corporal accused of breach of trust in connection with a jail-sex incident in Kamloops.

Cpl. Ken Brown, two other Mounties and at least one guard were accused of failing to intervene when they watched a video monitor that showed two drunk female inmates having sex in a cell.

Brown’s trial related to the incident on Aug. 18, 2010 is slated to get underway on Sept. 9.

However, next Thursday, lawyers will meet for a special hearing before B.C. Supreme Court Justice Selwyn Romilly to discuss the charge.

Brown, known by his middle name Rick, was watch commander on the night the inmates — one of whom claimed to be HIV-positive — were allegedly seen engaging in a sex act.

In a pre-trial conference on Tuesday, Romilly said he wasn’t convinced the matter should go to trial.

“I’m not sure this is a criminal matter as opposed to a civil matter,” he told Crown lawyer Winston Sayson.

“I want to know if this is a criminal matter. Let’s assume that all the things that you say on your summary (of Crown evidence) are proved. Is this a criminal matter?”

Brown’s defence lawyer, Glen Orris, argued the allegations against his client wouldn’t stand up to scrutiny.

“This may be an internal RCMP matter, but it doesn’t rise to a criminal offence,” he said.

Brown was suspended with pay after the incident and then placed on paid administrative leave, where he remains.

RCMP officials in Ottawa would not elaborate on how administrative leave is different from a paid suspension, but Brown has not worked since the incident more than four years ago and has been paid the entire time.

Last year, jail guard David Tompkins was placed on a year of probation after pleading guilty to breach of trust.

Tompkins remained employed by the city after his conviction.

RCMP constables Evan Elgee and Stephen Zaharia were charged alongside Brown and Tompkins, but charges against them were later dropped.

Elgee’s charges were stayed following a preliminary inquiry in 2013 and Zaharia’s in June of this year.

Elgee has since been transferred to a detachment outside B.C., and Zaharia is working out of the RCMP's rural office in Kamloops.

News from © The Canadian Press, 2014