Top lawyers in British Columbia's Criminal Justice Branch agonized over a decision not to charge police officers in the death of Frank Paul, a public inquiry has heard.
At the start of what was described as "a rare and unusual exercise" because senior prosecutors and judges are being called to the stand, Gregory Fitch, director of legal services testified on Wednesday about the inner workings of the Criminal Justice Branch.
"I found the case extremely difficult to resolve. A close call. I vacillated," Mr. Fitch said as he described how he reviewed a decision not to prosecute made by Austin Cullen, who was regional Crown counsel in Vancouver.
Mr. Paul, a 47-year-old Mi'kmaq, died of hypothermia after his limp body was dragged from a Vancouver police jail and left in a back alley on Dec. 5, 1998, a cold and rainy night.
His death has haunted officials, leading to an investigation by the Vancouver Police Department, a review by the B.C. Coroner's office, a re-examination by the Office of the Police Complaint Commissioner, and finally, a public inquiry headed by retired B.C. Supreme Court justice William Davies, who issued an interim report last year that was highly critical of how police handled the case.
After a legal battle, Mr. Davies established his authority also to examine how the prosecutorial service handled the matter, and those hearings are taking place in Vancouver.
Before testimony began, commission counsel Geoffrey Cowper told lawyers representing police, the Paul family, aboriginal groups and other interested parties that an examination of the Criminal Justice Branch is a rarity.
"The terms of reference of your commission have provided the public with the unusual opportunity of seeing the CJB at work. … My task as your counsel is to ensure that our inquiry is thorough, respectful of the law and constitution, but deferential to no one," Mr. Cowper said, addressing Mr. Davies.
"We may explore fully what was done and why, but must not ask the prosecutors to second guess their decision in light of the facts which came to light since they made their decision," he said.
Under questioning by Mr. Cowper, Mr. Fitch described how a report by the Vancouver police made its way through lawyers at the Criminal Justice Branch.
He said Mr. Cullen handled it first and returned it to police with a request that additional witnesses be interviewed.
He said Mr. Cullen decided against laying charges, but asked for the file to be reviewed a year later, after new evidence emerged, by which time he had been promoted to deputy attorney general.
"What I remember of the conversation with Mr. Cullen is he indicated … he found the charge assessment to be a very difficult one. He wanted me to look at the new evidence … he wanted another set of eyes on it," said Mr. Finch.
"Did you feel under any improper influence?" asked Mr. Cowper.
"No. I felt no improper influence by the Criminal Justice Branch, by Mr. Cullen or anyone else … it took me too long [to reach a decision] but like Mr. Cullen, I found the case extremely difficult to resolve," he said.
Mr. Finch said he turned to other lawyers in the department for help, and they looked at the possibility of charging Vancouver police officers for "failure to provide necessaries of life."
But in the end, the review concluded "the correct decision had been made" not to lay charges.
Cameron Ward, a lawyer representing the United Native Nations Society, reminded Mr. Davies the inquiry has already heard testimony that between 1992 and 2007, there were 52 police-related deaths in Vancouver, and none has ever led to charges against officers.