Thu Apr 8, 2010, 4:13 PM
By Camille Bains, The Canadian Press
VANCOUVER, B.C. - Former Crown lawyers who are now judges will have to appear before a public inquiry and explain their decisions not to charge any of the police officers involved with a man before he was dumped drunk in a Vancouver alley, where he froze to death.
The Supreme Court of Canada announced Thursday that it will not hear a Crown appeal of a lower court decision requiring the former prosecutors to explain their actions in the death of Frank Paul.
Five separate times the case was reviewed and the decision made not to charge either the officer who dumped Paul in the alley or the officer who refused to allow him to stay in the police lockup after he was arrested for public intoxication.
Up to three Crown lawyers may have to appear at the inquiry set to resume later this year. All of them are now judges - two in B.C. Supreme Court and one in Provincial Court.
As usual, the high court judges gave no reasons for their decision.
Paul, a 48-year-old Mi'kmaq from New Brunswick, died in December 1998 after the officer dumped him in an alley, soaking wet.
A decade later, retired judge William Davies, who is leading an inquiry into the death, ruled that Crown lawyers had to explain their repeated decisions not to lay charges.
The B.C. Criminal Justice Branch disagreed, saying the principle of prosecutorial independence gives prosecutors constitutional protection against having to justify their decisions.
Davies rejected that argument and the B.C. courts backed him.
Geoff Cowper, a lawyer for the inquiry, said Crown lawyers have testified at previous inquiries but the Paul case represents the first time any court has refused to hear an argument about prosecutorial immunity.
"There hasn't been a previous court decision in which the question of whether prosecutors are entitled to immunity was considered.
"There are other commissions which have inquired into various aspects of prosecutions but this is an unusual and rare event," Cowper said.
The terms of reference for the inquiry, fought for by First Nations groups who accused police of racism and a coverup, required Davies to look into the actions of the provincial Criminal Justice Branch.
Cowper said the inquiry that's been on hold for over a year will now resume.
Steven Kelliher, a lawyer for Paul's family, said the public will now get a chance to hear why police weren't charged despite the overwhelming evidence heard at the inquiry.
"For the Frank Paul family and for the First Nations of British Columbia I'm delighted that we will have some answers about why no charges were brought and why Crown counsel repeatedly told the public that there was no evidence upon which charges could be brought," he said.
Neil MacKenzie, spokesman for the justice branch, said the Crown was prepared to explain the decisions but did not wish to have individual Crown lawyers appear. During the inquiry, the branch offered to have a representative testify on behalf of the prosecutors involved in the case but that was rejected.
MacKenzie said the branch will now co-operate with inquiry lawyers so the former prosecutors can provide reasons for their decisions.
The B.C. Court of Appeal ruled last July that the inquiry into Paul's death was specifically asked to look at the role of the Criminal Justice Branch, and therefore the prosecutors would have to appear.
Last spring, Davies released a highly critical report about Paul's death, saying he was a victim of indifference and callousness who died cold and alone.
Davies also lashed out at the Vancouver Police Department, saying a botched investigation by police investigating themselves was part of a flawed system that failed Paul.
And he said the branch remains under a cloud more than a decade after Paul was found dead.
Paul was a regular at the city drunk tank, where he was taken by police for being intoxicated in a public place.
On the evening of Dec. 5, 1998, when Paul was brought there for a second time within a few hours, the sergeant in charge refused to take him in and ordered an officer to remove the man from the facility, saying he didn't look drunk.
However, a video shown at the inquiry revealed Paul was unconscious when he was dragged out of the drunk tank, his wet clothes leaving a streak on the floor.
Const. David Instant tearfully told the inquiry that he was sorry for what happened to Paul but that he was only following orders.