Frank Paul inquiry clears Crown of bias
A public inquiry into the death of an aboriginal man who froze to death in a Vancouver alley has cleared prosecutors of allegations of bias in their decision not to charge the officers involved.
In his final report released Wednesday, inquiry commissioner William Davies found that the B.C. Criminal Justice Branch addressed all possible criminal charges against one officer who refused Frank Paul entry into the city drunk tank and another who dragged him out and left him in the alley.
Davies said prosecutors applied the law to whether there was a substantial likelihood of conviction, and decided against charging the officers.
"I am, however, concerned that given the close and ongoing working relationship between the police and branch prosecutors, informed members of the public may reasonably conclude that there is a risk of preferential treatment in police-related cases," the retired judge wrote in the long-awaited report.
"Broader measures need to be taken to ensure the public's confidence in charging decisions that affect police officers."
He recommended that the decision on charges in police-involved cases be made by a special prosecutor, perhaps a lawyer in private practice or a lawyer or prosecutor from another province.
He recommended earlier in an interim report that police no longer investigate themselves in such deaths but rather implement a civilian-based independent investigation office modeled on Ontario's Special Investigations Unit.
Last month, the B.C. government passed legislation establishing the new office, based on the recommendations of Davies and commissioner Thomas Braidwood, who conducted an inquiry into the October 2007 death of Robert Dziekanski at Vancouver's airport.
Paul, a 47-year-old Mi'kmaq from New Brunswick, died of hypothermia in the early hours of Dec. 6, 1998.
The inquiry heard that Sgt. Russell Sanderson did not believe Paul was intoxicated, even though the officers who picked him up for being drunk in a public place said he smelled of potent rice wine.
Sanderson ordered Const. David Instant to remove Paul from the drunk tank, saying he'd be looked after by his buddies near his home on the streets of Vancouver's west side. Paul's home consisted of cardboard boxes behind a liquor store, and Instant took him to another part of the city near a detox centre and left him in the alley there.
A video shown at the inquiry revealed Paul was dragged out of the facility soaking wet and apparently unconscious.
The Crown challenged Davies' summons for Crown lawyers to appear and explain the reasons for the charge decision, taking their case all the way to the Supreme Court of Canada. The high court refused to hear an appeal on the matter, and several former prosecutors did appear at the inquiry last winter.
Davies said in his report that several policies must be changed so the Crown can adequately make charge assessments, including getting detailed reports from police, which was not the case after Paul's death.
The branch should also improve its file management system, he said. There were so many delays in Paul's case that it required four assessments between 1999 and 2004.
Davies also said the branch needs to revise its policy on public statements, so they provide a fair understanding to the public. He said such statements must include the names of the accused, the criminal offences that were considered, reasons why the evidence was insufficient to approve charges and why there were delays in completing the charge assessment.
None of that happened in Paul's case. The Crown issued a news release six years after his death announcing that the two officers wouldn't be charged, and cited a coroner's report that concluded the death was an accident.
Davies also recommended a detailed policy for notifying victims' families about charge decisions, another thing that wasn't done in Paul's case. His family was told by police that he died after being hit by a cab.
Paul's cousin, Peggy Clement, said she can't believe that the commissioner thought the Crown acted with integrity.
"I'm really surprised," she said in a telephone interview from Elsipogtog, N.B.
She said there is no justice for Paul after almost 11 years. Sanderson received a two-day suspension and Instant was suspended for one day over the incident.
"It's like nobody's taking responsibility for what happened," she said. "I'm not saying that they should be sitting in jail but it was a serious, serious thing that happened. A person in their custody died."
Clement commended Davies for the recommendations he made, but said it remains to be seen whether they are actually implemented.
The interim report issued two years ago recommended the Vancouver Police Department's drunk tank should be closed and replaced with a civilian-operated sobering centre and detoxification program. That has not happened, which Davies noted in the latest report.
Attorney General Barry Penner said deputy attorney general David Loukidelis will review the recommendations and report back to him within 45 days.
David Dennis, who heads the Frank Paul Society, formed last year to ensure the recommendations are implemented, said it will be up to Premier Christy Clark to create something positive from Paul's death.
"Clearly, the interest of the aboriginal community and the family from the outset has been to create a system where people like Frank Paul are not met with death and ultimately when they are met with death there (are policies) that hold the system accountable."