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.
Mr. 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, Judge Cullen and the others have had to testify at the inquiry into Mr. Paul's death about their decision not to charge the officers involved in Mr. Paul's death.
"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."
Judge Cullen told the inquiry that manslaughter charges may have been warranted because the officers had a duty to care for Mr. Paul, but there was reasonable doubt about whether their actions caused his death.
Judge Cullen was promoted to assistant deputy attorney-general in November, 1999, which meant subsequent prosecutors to review the case reported to him. He became a judge in 2001.
Mr. 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 the arresting officer, Constable David Instant, to get the homeless man out of the facility.
Constable Instant dragged Mr. Paul out of the lockup and left him in an alley, where he died. A video played earlier at the inquiry showed Mr. Paul being dragged, soaking wet and apparently unconscious, in the hours before he died.
Judge Cullen said Constable Instant, a junior officer, wasn't trained to assess intoxication or deal with homeless, chronic alcoholics such as Mr. Paul.
Judge Cullen also told the inquiry that Vancouver police submitted an incomplete 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 Mr. Sanderson and Mr. Instant, who weren't interviewed immediately after Mr. 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," Judge Cullen said.
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 Mr. 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 Mr. Sanderson should have known Mr. Paul's life would be in danger on the cold winter night.
But Judge Cullen said Mr. Paul had previously refused shelter when being released from the drunk tank and appeared to have somewhere to go when he was released.
Mr. Kelliher suggested the video showed Mr. Paul was clearly more vulnerable on the night he died and police should have ensured he was safe.
Judge Cullen, who did not see the video, said neither Mr. Sanderson nor Constable Instant could have had the foresight to know Mr. Paul would die.
Mr. Kelliher said Mr. Paul died because he couldn't care for himself and ended up with hypothermia on the street, although Judge Cullen said intoxication, linked with the hypothermia, was the fatal factor.