Frank Paul inquiry commissioner wants prosecutors to testify
Friday, February 29, 2008
VANCOUVER - In a precedent setting ruling, Frank Paul inquiry commissioner William Davies has ordered B.C.'s criminal justice branch to explain why charges weren't laid against police involved in the death of the homeless man.
It was the actions of two Vancouver police officers that resulted in the insensibly intoxicated man being refused entry to the city jail on the night of Dec. 5, 1998, then being dumped in a downtown alley where he died of exposure some hours later.
Saying the branch was "currently under a cloud for its response to Mr. Paul's death," Davies rejected arguments the inquiry didn't have the jurisdiction to order former prosecutors - who are now judges - to testify.
The former prosecutors are Michael Hicks, now a provincial court judge in the South Fraser district, and Austin Cullen, who was appointed to the B.C. Supreme Court in 2001.
Davies, a retired justice of the B.C. Supreme Court, also rejected arguments the branch couldn't be subpoenaed for evidence concerning why a charge was or was not laid or that it had immunity against disclosure based on the principle of the independence of the Crown counsel's office.
It was also argued there was a solicitor-client relationship between salaried prosecutors of the branch and the assistant deputy attorney-general for whom they work, but Davies laid waste to that saying no such privilege existed.
Without any explanation from the criminal justice branch concerning charges, the inquiry wouldn't be able to fulfill its mandate, Davies argued.
"If the branch's assertions are correct then the commission will be unable to properly answer the question of the response of the branch to the death of Frank Paul," wrote Davies in a 57-page ruling.
"The fact that the branch was included among the public bodies enumerated in the [commission's] terms of reference satisfies me that there is public concern respecting the branch's response and this concern relates to both the processes followed and the decisions made," said Davies.
"That being so the branch is currently under a cloud for its response to Mr. Paul's death. It is too early to tell whether or not that cloud is warranted. Only a full and public examination of the branch's charge assessment will resolve that issue."
Just how the criminal justice branch will respond to the ruling isn't clear.
Spokesman Stan Lowe didn't have a lot to say when asked today.
"We're in the process of reviewing the ruling and once we've completed that we will decide what course of action to take," said Lowe.
The ruling could be appealed to the B.C. Supreme Court but Lowe said he wouldn't speculate on whether an appeal would be made or if the branch would comply with the order.
From information made available to the commission, it appears the branch sought five separate opinions on whether to pursue a conviction and each concluded the evidence wouldn't support charges.
Paul's death has become a cause celebre for First Nations groups, anti-poverty activists in the Downtown Eastside and organizations concerned with the poor and addicted following the failure by any government agency to order an investigation into his death.
No inquest was held by the B.C. Coroners Service and there was no public inquiry into the officers' conduct by the B.C. police complaints commission.
The only review was a Vancouver police internal investigation, which resulted in one officer being suspended from duty for two days, the other for one.
A commission of inquiry into Paul's death was ordered by Solicitor-General John Les a year ago following ongoing public concerns about how he died.
Davies was charged to inquire into the response to his death by the B.C. Ambulance Service, Vancouver police, B.C. Coroner's Service, the office of the B.C. police complaints commissioner, and the criminal justice branch of the Attorney-General's Ministry.
Victoria lawyer Steven Kelliher, representing Paul's family at the inquiry, said the argument used by the ministry "had never been made in Canada before."
"They are claiming the reasons behind a decision to prosecute or not prosecute is sacrosanct. This is rubbish. If someone feels they've been the victim of a malicious prosecution and files a private action the prosecutor is there at the drop of a hat saying why he did it.
"This is a public inquiry and the commission can't do its job if it can't consider the role played by the criminal justice branch," said Kelliher.
Kelliher said he was drawn to Davies' remarks about the Frank Paul affair leaving a cloud hanging over the criminal justice branch.
"This isn't a lawyer saying this. This is a former B.C. Supreme Court justice making those remarks. How did that cloud come about? Is there a suspicion of bias operating within the administration of justice and was it reflected in the actions of the various other agencies that failed to respond to Mr. Paul's death? That's what the inquiry is all about," he said.
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