Judge criticizes police work at freezing death probe
There was a clear failure in the way Vancouver police dealt with a homeless aboriginal man who froze to death in an alley where an officer left him, a former Crown lawyer turned B.C. Supreme Court judge told a public inquiry into the death.
Justice Austin Cullen was the regional Crown lawyer when Frank Paul died of hypothermia in an alley on Dec. 6, 1998, and he was the first of at least four prosecutors to review the case between 1999 and 2004.
In a rare glimpse behind the Crown curtain, Cullen and the others have been forced by a Supreme Court of Canada decision to testify at the inquiry into Paul's death about their decision not to charge the officers involved.
"Clearly there was a failure here, there's no doubt about it," the judge told the inquiry Tuesday.
"I found it a troubling case because of the nature of the allegations," he said. "The fact that somebody had died, whose death may have been prevented."
Cullen told the inquiry that manslaughter charges may have been warranted because the officers had a duty to care for Paul but there was reasonable doubt about whether their actions caused his death.
Cullen was promoted to assistant deputy attorney general in November 1999, which meant subsequent prosecutors who reviewed the case reported to him. He became a judge in 2001.
Paul was picked up for being drunk in a public place but was refused admission to the city drunk tank by former sergeant Russell Sanderson who ordered a police wagon driver, Const. David Instant, to get the homeless man out of the facility.
Instant dragged Paul out of the lockup and left him in an alley, where he died. A video played earlier at the inquiry showed Paul being dragged, soaking wet and apparently unconscious, in the hours before his death.
Cullen said Instant wasn't trained to assess intoxication or deal with homeless, chronic alcoholics.
Cullen also told the inquiry that Vancouver police submitted what he considered a tentative report about the actions of their fellow officers -- a report that meant "the die had been cast" as far as what the Crown could consider in the case.
The report didn't include complete statements from Sanderson and Instant, who weren't interviewed immediately after Paul's death, and it made no charge recommendations.
"It would have been much preferable to have a full police report with full recommendations of charges, with interviews of the various officers," Cullen said.
He also said Sanderson and Instant got legal advice before they submitted their duty reports about Paul's death.
He said he sought further information from the department in May 1999, but didn't receive a reply until four months later, which he considered a longer-than-usual time frame.
Steven Kelliher, the lawyer for Paul's family, said the video clearly showed the homeless alcoholic was unable to stand, let alone care for himself when he was dragged out of the drunk tank.
He suggested Sanderson should have known Paul's life would be in danger on the cold, winter night he died.
But Cullen said Paul had previously refused shelter when being released from the drunk tank and appeared to have somewhere to go when he was released.
Kelliher suggested the video showed Paul was clearly more vulnerable on the night he died and police should have ensured he was safe.
Cullen, who did not see the video, said neither Sanderson nor Instant could have had the foresight to know Paul would die.
Kelliher said Paul died because he couldn't care for himself and ended up with hypothermia on the street, although Cullen said intoxication, linked with the hypothermia, was the fatal factor.
Provincial Court Judge Michael Hicks was also a regional Crown lawyer when he reviewed the Paul case in 2004 after evidence of the video emerged. He told the inquiry the police report was missing a cover page that would have indicated whether charges were recommended against the officers or not.
Hicks, who became a judge the following year, said the cover page should have been there, the same as for reports about civilians, although that was typically not the case when police submitted information about deaths involving their own officers.