Two judges, a prosecutor, the assistant deputy attorney-general and the head of special prosecutions for British Columbia have all been called to testify at a public inquiry that resumes Wednesday into the troubling death of Frank Paul.
"It's rare, it's unusual, but not unprecedented," said Geoff Cowper of the decision by the Davies commission of inquiry into the death of Frank Paul to call top legal officials to the stand.
Mr. Cowper, counsel to the commission, said "there have been a couple of cases" in Canada in the past where senior members of the judiciary have been required to give evidence about the charge approval process.
Called to testify this week are Robert Gillen, B.C.'s assistant deputy attorney-general; B.C. Supreme Court Justice Austin Cullen and Provincial Court Judge Michael Hicks, who were both regional Crown prosecutors at the time of Mr. Paul's death; Gregory Fitch, who is now director of criminal appeals and special prosecutions but who was director of legal services at the time; and Joyce DeWitt Van Oosten, who is now a Crown prosecutor but was then on the legal service team of the province's Criminal Justice Branch.
The officials have been ordered to appear before William Davies, who is trying to wrap up the public inquiry he all but concluded last year when he issued a detailed, but not final, report on Mr. Paul's 1998 death.
Mr. Paul, a 47-year-old Mi'kmaq man, died of hypothermia in a Vancouver back alley where he had been left by police after his limp body was dragged out of the Vancouver jail on a cold, rainy December night.
The report Mr. Davies issued in March, 2009, made numerous recommendations for the treatment of homeless, chronic alcoholics, and was critical of how Vancouver police treated Mr. Paul and how police later conducted an investigation into the death.
Mr. Davies's report was an interim document because it left dangling one loose end - the question of why the Crown decided not to lay any charges stemming from Mr. Paul's death.
In 2000, the Vancouver Police Department concluded disciplinary proceedings against two officers for their handling of Mr. Paul. One was suspended for two days for discreditable conduct; the other was suspended for one day for neglect of duty.
During the inquiry, the Criminal Justice Branch argued Mr. Davies didn't have the authority to inquire into legal advice given or received by Crown counsel.
"Accordingly, the Crown cannot be subpoenaed to testify either at trial or at an inquiry about why a charge was laid, or not laid, in any given case, nor can documents relating to this function be ordered disclosed," the Criminal Justice Branch claimed in an application at the time.
Mr. Davies disagreed, however, stating: "I am satisfied that the individuals who made charge assessment decisions in the Frank Paul matter can be required to testify as to what they did, what materials they reviewed, what decision they made and the reasons for it, and any other matters that do not constitute communications between themselves and the Assistant Deputy Attorney General respecting his exercise of prosecutorial discretion."
That led to a legal battle that didn't end until last April, when the Supreme Court of Canada dismissed an application by the Criminal Justice Branch for leave to appeal.
Mr. Davies is now clear to pursue an investigation into how the Crown handled the matter.