Crown erred in Frank Paul case: lawyer

Crown prosecutors should have charged a police officer who refused to admit an intoxicated man to the Vancouver drunk tank in 1998, a lawyer has suggested.

Instead, the Crown ignored key aspects of a senior Vancouver police officer's actions on the night Frank Paul died of exposure to the cold, lawyer Stephen Kelliher said Thursday at the continuation of the inquiry into Paul's death 12 years ago.

Russell Sanderson, who was then a sergeant, ordered another officer to get Paul out of the facility, and the man was left in an alley where he died of hypothermia.

The 48-year-old Mi'kmaq from New Brunswick had been picked up for being drunk in a public place.

The inquiry, being held in Vancouver, has heard that Sanderson believed Paul, who'd been released from the drunk tank two hours before being picked up, could not have become intoxicated so soon afterwards.

Gregory Fitch was director of legal services with the Criminal Justice Branch at the time and reviewed a decision not to charge Sanderson and Const. David Instant, the officer who dumped Paul in the alley.

Charges considered against officers

Fitch testified at the inquiry that the officers failed in their duty to exercise reasonable care with Paul, and that charges of manslaughter, criminal negligence causing death and failure to provide the necessities of life against the officers were considered.

But he said his decision to not lay charges was based on his finding that there wasn't a substantial likelihood the officers would be convicted.

"I think Sgt. Sanderson was dealing with a very complex situation including organic debilitation," he said.

Kelliher, who is the lawyer for Paul's family, responded by saying, "I suggest to you that the only complexity here is that these are police officers."

"That's absolutely untrue," Fitch replied.

Kelliher suggested Fitch should have focused on Sanderson's belief that Paul wasn't drunk despite the fact that the arresting officer smelled rice wine on his breath and that Paul had to be dragged out of the facility because he couldn't walk.

Fitch admitted he knew a police officer had given Paul a toonie after his first release from the drunk tank and that bottles of rice wine were sold within a block of the jail for about a dollar.

The Vancouver Police Department investigated its own officers and recommended no charges in a report to the Crown.

Kelliher also questioned Fitch about why neither he nor anyone else in the Criminal Justice Branch bothered to contact Paul's family, despite a policy requiring next of kin to be updated about developments in a case.

Family misled

Fitch said there wasn't any contact information in Paul's file but he didn't take any extra steps to try to find relatives, adding such tasks are a shared responsibility with the regional Crown's office.

"It's a matter that the branch needs to be attuned to," he said when Kelliher questioned the Crown's obligation to provide family members with information.

The inquiry has heard that police told Paul's family in New Brunswick that he died after being hit by a taxi.

Fitch's testimony at the inquiry is providing a rare glimpse into the workings of the Criminal Justice Branch, which had fought against having to justify its decision to not charge the two officers.

The Crown challenged the summons to the Supreme Court of Canada, which in April refused to hear an appeal on the matter.

Retired judge William Davies wrapped up the original inquiry in March 2009 with a 446-page report that was harshly critical of Vancouver police in Paul's death.

The inquiry ended without hearing from the three former Crown lawyers after the B.C. Criminal Justice Branch argued they should not be compelled to explain their decision not to lay charges against the officers.

Davies vowed to reconvene the inquiry if the courts ruled the three should defend their decision not to charge any of the officers.

Fitch is the first of the legal officials to appear at the inquiry.