Why wasn’t anyone charged in connection with the death of Frank Paul?

Attorney General Wally Oppal’s assistant deputy, a B.C. Supreme Court justice, and a provincial court judge are among the present and former Crown counsels who may be summoned to a public inquiry to answer this question, according to a Vancouver lawyer.

Michael Tammen, counsel for the B.C. Civil Liberties Association in the Frank Paul inquiry, said those people are: Robert Gillen, currently the assistant deputy attorney general in charge of the criminal justice branch; B.C. Supreme Court justice Austin Cullen; and provincial court judge Michael Hicks.

“I suppose they will outline their assessment of the available evidence and give some statement as to the reasons that they think it did not meet the Crown charge-approval standard,” Tammen told the Georgia Straight. “They’ll say there is no substantial likelihood of conviction—here’s why.”

Paul is the 47-year-old homeless Mi’kmaq man who was found dead in the early morning of December 6, 1998, in a back alley where he was left by a Vancouver police constable the night before. The intoxicated New Brunswick Native was earlier “breached” from a police jail upon orders of a police sergeant. Based on a jail video, the barely conscious Paul had to be dragged out to a patrol wagon.

No inquest was conducted by the B.C. Coroners Service into Paul’s death, which was attributed to hypothermia. Constable David Instant and then-sergeant Russell Sanderson were meted out one-day and two-day suspensions, respectively, by the Vancouver Police Department.

The criminal justice branch didn’t lay any criminal charges in connection to the death of the Native man.

However, Tammen indicated that it is also possible that Cullen and Hicks will not be required to appear before the inquiry headed by William Davies, a retired B.C. Supreme Court justice.

“I suspect there may yet be an argument that they’re immune from testifying because of their status as judges,” Tammen said. “That’s one of the arguments that the criminal justice branch made back in February before Commissioner Davies.”

Cullen was appointed to the B.C. Supreme Court in 2001 and Hicks to the provincial court in 2005.

It was Oppal who released the terms of reference for the Frank Paul inquiry, on August 10, 2007. The scope of the inquiry includes an examination of the response by the criminal justice branch to the Native man’s death.

The Davies-led inquiry conducted 49 hearings from November 2007 to May this year. Davies had wanted to summon at least five of the prosecutors who were involved in the no-charge assessments, but the criminal justice branch argued that it enjoys Crown immunity and privilege.

Davies rejected such a claim in his February 27, 2008, ruling. “The purpose of a public inquiry into the death of an individual when there was police involvement is to assure the public of the integrity of our criminal justice system (or, if it is not performing with integrity, to recommend measures that will restore integrity),” the former justice wrote in his ruling.

Davies also noted that the role of Crown prosecutors in the Paul case “has been, and continues to be, a concern to the Aboriginal community”.

“Would charges have been laid, if Frank Paul were not an Aboriginal person?” Davies asked in reflection of the concerns of the First Nations community.

The criminal justice branch questioned Davies’s ruling before the B.C. Supreme Court but lost the argument. In his June 24 decision, Justice Thomas Melnick noted that Davies may summon at his discretion persons who were involved in the decisions not to file any charges in the Paul case.

Branch spokesperson Stan Lowe had little to say when sought for comment by the Straight on June 27. “There are some complex legal issues,” Lowe said, referring to the court’s ruling.

Lowe said that it was still “early days” to determine what next step will be taken by the criminal justice branch. He also noted that it has 30 days from the date of the B.C. Supreme Court decision to file an appeal.

In oral arguments before the B.C. Supreme Court on May 28, Steve Kelliher, lawyer for the Paul family, pointed to the public perception that police officers are accorded “special consideration” compared to others who come under the scrutiny of Crown prosecutors.

“This perceived different treatment is inequality before the law,” Kelliher stated. “It is submitted that the only way this cloud will ever be dispersed is to permit a full examination of the role of the criminal justice branch into the decision not to bring charges in the death of Frank Paul. Not to do so will only darken the cloud and contribute to greater cynicism and loss of respect for the administration of justice.” -