Frank Paul's death no accident, Crown agrees

The Crown's decision not to publicize a flawed police investigation could have left the impression that Frank Paul's death was an accident, says the lawyer for the family of the man who died of hypothermia in a Vancouver alley.

Steven Kelliher told a public inquiry Wednesday that six years after Paul's 1998 death, the Crown issued a news release saying the officers involved wouldn't be charged and mentioned a coroner's report that concluded the death was an accident.

But the release didn't include information about a report by the Office of the Police Complaint Commissioner, which had considered the police investigation incomplete and prompted a final review of the file, Kelliher said.

Robert Gillen, who was assistant attorney general when the Criminal Justice Branch made the no-charge announcement in 2004, said he could have included a statement that the police investigation was not thorough enough.

But he added: "I don't see the purpose of the communication as being one to protect the police in any fashion."

He said he didn't know why the coroner's finding was included in the statement.

Additional information in the release could have conveyed the idea that the Crown was unable to gather enough evidence to lay charges against the officers because of the flawed report, said Gillen, who now heads the Criminal Justice Branch of the Attorney General.

But he said at least five reviews of the Paul case between 1999 and 2004 convinced several prosecutors that charges were not warranted against then-Sgt. Russell Sanderson and Const. David Instant.

Refused entry

Paul was brought to the city drunk tank for a second time on the evening of Dec. 5, 1998, but Sanderson refused to take him in, saying he'd been released just two hours earlier and couldn't be intoxicated again.

Instant, then a police wagon driver, was ordered to get Paul out of the drunk tank, but he left the aboriginal homeless man in an alley where he died of hypothermia a few hours later.

The inquiry has heard that two police officers saw the chronic alcoholic passed out on a vegetable stand in the rain and smelled rice wine on his breath before he was taken to the drunk tank.

A video shown earlier at the inquiry revealed Paul was dragged out of the drunk tank soaking wet and apparently unconscious before he died.

On Tuesday, B.C. Supreme Court Justice Austin Cullen, who made the first no-charge determination against the two officers, testified there was a clear failure in the way Vancouver police dealt with Paul.

Cullen, who was the regional Crown lawyer when he made his 1999 assessment, said 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 statements from Sanderson and Instant, who weren't interviewed immediately after Paul's death, and it made no charge recommendations.

Cameron Ward, a lawyer who represents the United Native Nations Society, said Wednesday there were 127 police-involved deaths in British Columbia between 2001 and 2007 but that no officers have ever been charged.

The inquiry also heard that out of about 460 Crown lawyers in the province, only seven are aboriginal, and none of them worked on the Paul case.