Former prosecutors who made the controversial decision not to prosecute Vancouver police officers over the 1998 death of chronic alcoholic Frank Paul must testify at a hearing into Paul’s death.
Last year, B.C.’s Court of Appeal ruled that the prosecutors should be compelled to testify at the inquiry.
That decision was appealed by the attorney-general’s ministry and on Thursday the Supreme Court of Canada dismissed the appeal.
The ministry’s criminal justice branch had argued that, in order to maintain their independence, individual prosecutors should not have to explain their decisions about whether charges should be laid.
Paul, 47, a Mi’kmaq from New Brunswick who suffered from mental illness as well as alcoholism, died of hypothermia in an alley behind a detox centre in Vancouver’s Downtown Eastside on the night of Dec. 5, 1998.
He was left there by a Vancouver police constable who was acting on the orders of the sergeant in charge of the jail, who refused to admit Paul to the drunk tank because he did not believe he was drunk.
Paul had a blood-alcohol level of 0.29 — almost four times the legal limit to drive.
Retired B.C. Supreme Court justice William Davies chaired a wide-ranging public inquiry into Paul’s tragic death and issued an interim report last year.
Davies criticized the Vancouver Police Department and B.C. Coroners Service for various failures. But he was unable to deal with matters surrounding Crown counsel’s decision not to lay charges against the police officers because the prosecutors involved in the case refused to testify, arguing the time-honoured tradition of prosecutorial independence.
All three prosecutors involved, who may be compelled to testify now that the Supreme Court has made its decision, are now judges.
"Obviously, we accept the court’s decision to dismiss the application for leave to appeal the [B. C.] Court of Appeal decision," criminal justice branch spokesman Neil MacKenzie told The Province on Thursday.
He said Crown counsel have been compelled to testify in commissions of inquiry in other provinces.
"It’s a well-established principle of the justice system that prosecutors should make their decisions independently of any form of political influence or public pressure," explained MacKenzie.
"The decisions should be principled decisions that are made on the basis of the evidence that’s available in the case and the applicable law."
New Democratic Party justice critic Leonard Krog called the top court’s decision "a good thing," noting it applies only to the Frank Paul inquiry.
Krog said the appeal court ruling means an attorney-general can’t order a public inquiry then refuse to allow "the very people who chose not to prosecute . . . to give evidence."
"I don’t think it will have a broad impact on prosecutorial discretion or the immunity that they generally enjoy," said Krog.
The night Paul died, he had been discharged from the drunk tank less than two hours earlier.
The sergeant in charge ordered a rookie police constable to drop Paul off in Kitsilano.
Videotape from the jail shows the constable and a corrections officer dragging Paul in his soaking-wet clothes into an elevator on his way back to the wagon.
The constable later learned Paul, who had been in the drunk tank dozens of times, did not live in Kitsilano, so he left him propped up against a wall in an alley behind the civilian-run detox centre. Because Paul had a history of being violent when drunk, he was not considered admissible to the detox centre.
Davies said in his report there should have been a more suitable place for Paul to go than the jail.
Vancouver Coastal Health now has a "sobering centre" that accommodates up to 18 people who are not interested in detoxing, said spokeswoman Anna Marie D’Angelo.
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