The quality of justice a Vancouver homicide victim’s family receives apparently depends on who caused the death, according to testimony today at the Frank Paul Inquiry.

Retired VPD detective Doug Staunton said the investigation of a death in police custody is handled differently than a typical homicide case involving civilians. When Vancouver police investigators are investigating a death occurring at the hands of their colleagues, they prepare a “neutral” report for Crown Counsel, rather than a recommendation for charges.

Mr. Staunton also confirmed that investigators departed from usual investigative practice when Frank Paul’s body was discovered, by allowing Cst. Instant, the main officer involved, to attend the death scene, by failing to separate and interview police witnesses and by failing to prepare accurate scene diagrams. He also confirmed that Leonard Doust, QC was called early Sunday morning, December 6, 1998 to provide legal assistance to Cst. Instant, though Instant was not considered a suspect. After meeting with Mr. Doust over two days, Cst. Instant delivered a written statement and was never questioned on why he left Frank Paul in the isolated alley that December night.

Mr. Staunton confirmed that in all of the 11 in-custody death investigations he handled in his career as a VPD homicide investigator, as well as in several dozen other similar cases involving the VPD, charges were not laid after his section’s “neutral” reports were submitted to the Crown.

Police should not be investigating cases of police-involved deaths, according to former coroner Jeanine Robinson, former Chief Coroner Larry Campbell and current Chief Coroner Terry Smith. They were testifying at the Frank Paul Inquiry when they confirmed that the public is not being well-served by the present system.

Evidence supporting the proposition was then offered in the person of Insp. Robert Rothwell of the VPD, who found “no credible evidence” that Frank Paul’s family was misled about the circumstances of his death. The Inquiry heard that the VPD did not notify the next of kin until January 11, 1999, more than a month after Frank Paul succumbed to hypothermia on December 6, 1998. He had been dumped there, soaking wet and incapacitated, by a Vancouver police wagon driver a few hours before. The family reportedly was told he had been a victim of a hit and run accident.

The Frank Paul Inquiry was interrupted for two days this week as lawyers representing the Attorney General of BC made legal arguments about the scope of the terms of reference that were approved by the Attorney General himself. Richard Peck, QC and Michael Code were seeking a direction from Commissioner William Davies QC that none of the prosecutors involved in the case be questioned about their decision not to lay criminal charges.

Commission Counsel Geoff Cowper, QC opposed the Attorney General’s application, as did lawyers representing Frank Paul’s family, the United Native Nations Society, the BC Civil Liberties Association and Aboriginal Legal Services of Toronto.

On behalf of the UNNS, we argued that the Inquiry’s terms of reference were clear, that other commissions of inquiry have routinely reviewed prosecutorial conduct and decision-mauking and that the issue of why no charges were laid is of critical importance to the Inquiry’s work. We pointed out that objectively, this was a clear case of criminal negligence causing death, but that no police officer has ever been charged in the death of an aboriginal person in BC and that Crown Counsel seem to have an unwritten code that precludes them from laying charges in these cases. These observations have important ramifications for the administration of justice within the province.

Commissioner Davies reserved decision on the application, and the Inquiry resumes next Wednesday, January 23, 2008 with testimony from former Chief Coroner Larry Campbell, current Chief Coroner Terry Smith and other members of the BC Coroners Service. They are expected to testify as to why no inquest was ever held into Mr. Paul’s death.

“For the world’s more full of weeping than you may understand”…W.B. Yeats

This Christmas, spare a thought for those less fortunate than ourselves. There is no shortage of candidates; Iraqi and Afghan orphans, Darfur refugees, Katrina hurricane victims and the poor and disenfranchised, wherever they may be.

And spare a thought too for Ivan Henry, 61, who is spending his 25th consecutive Christmas Day behind bars since November 23, 1983, the day he was sentenced by BC Supreme Court Justice John Bouck to an indeterminate period of incarceration as a dangerous offender. Mr. Henry steadfastly maintained his innocence and represented himself at his criminal jury trial, where he was convicted of ten counts relating to sexual assaults committed on eight women. No physical evidence was offered to link Mr. Henry to the crimes, and it was Mr. Henry’s word against the complainants’. Crown Counsel Michael Luchenko later directed a stay of proceedings with respect to seven other similar counts faced by Mr. Henry.

On February 24, 1984, the British Columbia Court of Appeal dismissed Mr. Henry’s appeals against conviction and sentence for want of prosecution, as a result of Mr. Henry’s failure to file documents with the court within time. Mr. Henry, still representing himself, then launched a barrage of proceedings from jail, some of which are chronicled in Court of Appeal reasons for judgment pronounced December 16, 1997.

On December 15, 2006, Attorney General Oppal announced that Leonard Doust, Q.C. had been appointed a month earlier to review the convictions “to determine whether there has been a potential miscarriage of justice”. The Attorney General apparently became aware of “new evidence” casting doubt on whether Mr. Henry was the perpetrator of the crimes.

Mr. Henry and his two daughters, who were only six and nine years old when he was incarcerated a quarter of a century ago, are spending their second Christmas apart since the conviction review was announced, awaiting the result.

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Read the Court of Appeal’s 1997 decision in R. v. Henry here: upload

Frank Joseph Paul, 1951-1998

The Frank Paul Inquiry resumes January 7, 2008, when testimony is expected from the Vancouver Police Department members who had custody of Frank Paul before his body was found.