A decision by the Supreme Court of Canada has cleared the way for the resumption of a public inquiry into the death of Frank Paul, a homeless man who died from hypothermia after being dumped in an alley by Vancouver police.
The court on Thursday rejected an application by the Attorney-General of British Columbia to appeal a B.C. Supreme Court ruling that said Crown prosecutors could be compelled to testify at the Frank Paul inquiry.
Neil MacKenzie, communications counsel for the B.C. Criminal Justice Branch, said the Supreme Court decision means Crown prosecutors will now have to testify.
"We will work with counsel for the commission on this," he said.
Geoffrey Cowper, commission counsel for the Frank Paul inquiry, said the hearings will resume as soon as is practicable, though he could not give a date.
"We will be interviewing all of the prosecutors who had a significant involvement with the file, and we'll call any prosecutor who's reasonably necessary to understand what was done with the case," he said.
After 60 days of hearings, the Frank Paul inquiry, headed by retired B.C. Supreme Court justice William Davies, released an interim report in March, 2009.
But the commission withheld its final findings because of the unresolved dispute concerning testimony by Crown prosecutors.
Mr. Davies had wanted prosecutors to explain why charges were not laid against the Vancouver police officers who had dragged Mr. Paul out of jail and left him in an alley on a cold December night in 1998.
Mr. Paul, who was severely intoxicated and unable to walk, was found dead the next morning where he'd been left.
The commission heard there were five reviews by Crown prosecutors before a decision was made not to lay charges. But when Mr. Davies sought details, the Criminal Justice Branch said Crown prosecutors didn't have to testify because they had immunity.
The dispute went to court and, in July, 2008, B.C. Supreme Court Justice Thomas Melnick ruled the inquiry's terms of reference - which included examining the procedures of the Criminal Justice Branch - gave Mr. Davies the authority to call prosecutors.
"In my view, there is no principled reason why a prosecutor from the CJB who receives a notice to appear before the commissioner should be treated any differently than any other participant in the inquiry," Judge Melnick ruled.
He stated that while it is important to protect the independence of prosecutors, it is equally important to maintain public confidence in the justice system.
"The aboriginal population and the Paul family placed their trust in the Crown … to provide them with the truth about the events surrounding the death of Mr. Paul. From what was said to me by counsel at this hearing, they have confidence in the commissioner," he said in deciding prosecutors should appear before Mr. Davies.
The B.C. government sought to appeal that ruling, but the Supreme Court of Canada decision closes that option and serves as an endorsement of Judge Melnick's decision.
In his interim report, Mr. Davies said the Vancouver police were wrong to have taken Mr. Paul from jail and subsequently failed to adequately investigate his death.
"The evidence requires me to conclude that despite the service of many fine and diligent professionals, our systems of justice and social service ultimately failed Frank Paul," he said.
Mark Hume