CANADA, like Australia is a big country. And like Australia, there were people living here long before the colonisers. Also, like Australia, these people have not fared well since.
Across our 10 Provinces and two Arctic Territories, there are approximately 1.2 million people who identify themselves as being Inuit, Metis or North American Indian, also referred to as First Nations.
The Inuit are predominantly in Nunavut, the Metis and First Nations reside across the breadth of the country and throughout the Northwest Territories and into the Arctic.
Of this 1.2 million people, approximately 750,000 identify themselves as First Nations.
Looking back over the years and through the generations, the lives of all Aboriginal people in Canada, and most certainly First Nations, have been characterised by systemic racism, injustice and suffering.
Astonishingly, they exist in largely third world conditions even today. By the standards of any civilized nation, let alone as prosperous a country as Canada, First Nations, by and large, live in poverty and on the margins of Canadian society.
Infant mortality, imprisonment, HIV rates, life expectancy, alcoholism, drug addiction, child suicides – by any measure the living conditions of the First Nations people of Canada are a national disgrace.
A disgrace that goes largely ignored; without any sign of a national will that recognises the enormity of the problem and is prepared to devote the necessary effort and resources to bring it to an end.
This story is one part of this disgraceful history, of a First Nations man who was let down by a system that tragically failed in its duty of care.
THE LIFE AND TIMES OF FRANK PAUL
Frank Joseph Paul was a North American Indian of the Mi’kmaq (pronounced Migmaw) First Nation.
He was born on the Elsipogtog Reserve, close to the Atlantic Ocean in the Province of New Brunswick, in the summer of 1951.
On a winter evening 47 years later, in 1998, he would be arrested by Vancouver police for being in a “state of intoxication in a public place”.
On this night, he was refused entry to the jail by the jail sergeant, who then ordered a young probationary police officer driving the police van to drop him on the streets of Vancouver, where he was known to frequent.
It was, like most winter nights in Vancouver, a few degrees above zero and raining intermittently. Frank Paul was dragged from the jail, hoisted into the police wagon and left in an alley open to the weather.
He was grossly intoxicated. He could not stand, he could barely mumble, he was soaking wet and as the autopsy report would later indicate, he was suffering from the onset of hypothermia. He was clearly unable to care for himself.
But at approximately 2 o’clock that morning, a nearby resident who was out looking for his cat called to report a man lying in the alley. The same officers who had arrested him earlier that evening arrived at the scene to find Frank Paul dead.
At 6:30am the Coroner arrived on the scene, and after making observations, sent his body for autopsy.
The autopsy identified two areas of significant brain injury related to seizure, and a blood alcohol level of 290 milligrams in 100 millilitres of blood.
A reading of 290 milligrams is approximately four times the legal limit for the operation of a motor vehicle, and it was noted the reading would have been significantly higher in the hours prior to his death (in Australia, it’s almost six times the driving legal limit). Despite the cause of death, and the circumstances surrounding his death, the Chief Coroner indicated to the attending coroner that an inquest was not warranted.
Such an inquest, in the form of a public hearing before a jury, is mandatory if a death takes place in police custody (a questionable rotational, given that Frank Paul was not transferred to anyone else’s custody and was unable to care for himself at the time). But technically, Mr Paul was deemed not in custody at the time of his death.
The attending Coroner had reviewed the documentation on file and in the autopsy report, as well as still photos from the jail video showing Mr Paul being dragged out of jail.
But in her report, she categorised the death as an “accident” rather than a homicide. It was also the responsibility of the Coroner’s Office to advise Mr Paul’s next of kin.
They apparently forgot to do so.
In fact, the families were initially told by the Royal Canadian Mounted Police that he had died as a result of a “hit and run”.
Frank Paul, by this time of his life, was seriously ill. He suffered from significant brain damage and it was questionable whether he was able to care for himself even in his rare moments of sobriety. He was, nevertheless, a human being, in desperate condition and in need of care. But there was no public inquest and barely any media coverage.
And it would be another 13 years before a comprehensive public inquiry would be held into the tragic circumstances of his death.
THE POLICE INVESTIGATION
By policy, all police related deaths are immediately assigned to the Major Crime Section and, in this case, it was undertaken in a fashion that was characteristic of such investigations.
Neither the wagon driver nor the jail sergeant was ever interviewed. Rather, keeping with Vancouver City Police Department policy, written ‘duty reports’ were requested of each officer after they had an opportunity to obtain legal advice.
There was no forensic examination.
Indeed, the forensic engagement at the Frank Paul death scene was described by another senior officer as being “… more a matter of recording the circumstances of a death by hypothermia than a criminal investigation”.
Several civilian witnesses were not interviewed.
In the written summary of the investigation, referred to as the Report to Crown Counsel, there was a summary of the evidence which had been collected but there was no analysis of any inconsistencies, nor comment on the accuracy or reliability of any of the evidence.
No criminal offences were identified and no effort was made to relate evidence to any offence. There was no recommendation for any criminal charge, or apparent consideration of that possibility.
This ‘report’ was then sent to the Chief Constable’s office, where it would be used to determine whether any further discipline was warranted. It was sent on to the Coroner’s office where it would be relied upon to determine whether an inquest should be held. And it was sent to the Office of Crown Counsel in order to determine whether any criminal charges could be laid.
It also eventually went to the office of the Police Complaints Commissioner, which had only a few years earlier been legislated into existence as civilian oversight of municipal police conduct.
A subsequent Police Complaints Commissioner who reviewed the file several years later was scathing of the police investigation in his interim report, stating that it was “methodically flawed”.
“In particular the unwritten, unpublished, and generally unknown policy of preparing so-called ‘neutral’ reports into police-related shootings provided an unaccountable environment for the conduct of superficial investigations and inadequate Reports to Crown Counsel, and hence had the effect of ensuring that, despite police involvement in the death and assignment of responsibility to the Homicide Squad, facts were overlooked, suspicions unaddressed, and clarifying evidence left untouched,” the Commissioner wrote.
And in respect to the conduct of the police officers, he found the following:
“The various explanations offered by Sgt Russell Sanderson (jail sergeant), responsible for the Jail on the evening of December 5, 1998, must be rejected in their entirety.
“From any perspective Frank Paul was in need of care that evening and if the superficial care of a sobering cell (commonly referred to as the ‘drunk tank’) was to be kept from him, this experienced officer could not properly conclude that he could be safely discharged to the winter streets of Vancouver.
“I emphasise that the decision to reject Frank Paul from admission to the jail, despite being sent there by two experienced and capable patrolmen to sober up, was a decision made in a moment and without any responsible level of attention or care.”
The Commissioner referred to here is Commissioner Davies, who prepared his interim report in which these comments were made. His comments therefore had no bearing on the various original investigations.
The police department began their internal investigation into the matter in 1999 (this was the internal disciplinary investigation begun after the criminal investigation was complete. The point is that the internal ‘disciplinary investigation’ relied wholly on the flawed police criminal investigation).
This investigation did not make any further requests for reports or interviews with either the jail sergeant or wagon driver. The senior sergeant in charge of the investigation had initially considered that informal “management advice”, basically an informal caution, be given to the two officers, but decided it was inappropriate.
Instead, he recommended that the jail sergeant receive a two day suspension without pay for failing to have Mr Paul medically assessed or to consider some other form of shelter such as a detox centre. He further recommended that the wagon driver receive a one-day suspension without pay.
The Chief Constable agreed.
To date, these suspensions have been the only disciplinary measures doled out on anyone in relation to the death of Frank Paul.
THE ROLE OF THE PROSECUTORS
Before charges can be approved against a police officer in British Columbia, the file must be reviewed by two senior prosecutors. The police recommend the charges and the prosecutors either approve or disapprove the charges going forward.
The legal test of whether charges should proceed in British Columbia is whether there is, “a strong, solid case to put before the court’ or put another way, ‘a substantial likelihood of conviction”.
It is more than “reasonable and probable grounds” but far less than “proof beyond any reasonable doubt”.
In this case, the first prosecutor in the Criminal Justice Branch recognised many of the deficiencies and considered it a tentative report, but he also felt that ‘the die was cast’ and that on the evidence set out in the obviously deficient criminal investigation report, there could be no successful prosecution.
His superior simply signed off on this recommendation.
The evidence that he did have, however, consisted of the testimony of the two police officers who arrested Frank Paul just before 8pm, reeking of rice wine, unable to stand and barely able to speak and clearly unable to care for himself.
He had the photographs of the deceased being dragged into and out of the jail, leaving a long wet trail behind him.
He knew of the autopsy report, which had already established a blood alcohol level quite likely in the range of 320 milligrams in 100 millilitres of blood, well over the legal driving limit.
He also knew that there was a nurse on duty at the jail that night.
Against this body of evidence, he felt that the officers were entitled to consider Frank Paul’s life on the street, and that he would ordinarily find himself a place safe on the street or in some sanctuary.
Despite all this, he concluded that he did not have a strong case to put before the court.
The file was reviewed again by another prosecutor after it came back to the Office of Crown Counsel in 2001.
There was a further request from the Office of the Police Complaints Commissioner that charges against the officers be re-considered.
This prosecutor’s few notes on file were headed “R v. Paul”. ‘R’ is an abbreviation for ‘Regina’, meaning that Frank Paul was (consciously or otherwise) being thought of as having committed a criminal offence.
After thinking about it for seven months he decided that no charges should be laid against either officer. This delay would later be relied upon by the Police Complaint Commissioner for declining to order a public hearing.
FIRST Nations organisations in British Columbia and across Canada, as well as several people from within the office of the Police Complaints Commission, repeatedly pressed for a public inquiry for years without success.
With the eventual installation of a new Police Complaints Commissioner, the file was re-activated and the new commissioner, upon doing a thorough review of the file, prepared a report for the Attorney General with a recommendation that an inquiry be held.
The head of the Criminal Justice Branch, on his own initiative, requested the file for a further review undertaken by another senior Crown counsel prosecutor.
This opinion, like the others before it, concluded that there was not a substantial likelihood of conviction. The opinion however, was flawed in that it considered only the test for criminal negligence as being ‘wanton and reckless disregard’ and concluded that the Crown did not meet that test.
His opinion did not consider the lower more easily reached threshold of a ‘marked departure from the conduct of a reasonable person’.
This is all that is required in Canadian law to establish the offence of failing to provide the necessaries of life. And, if that offence is established and there is a loss of life; that is manslaughter. The head of the Criminal Justice Branch received and agreed with this opinion but, “out of an abundance of caution”, referred the file to yet another prosecutor.
This person had previously reviewed the file and had recently retired from the Criminal Justice Branch, and was receiving work on a private basis. He was the most senior lawyer to review the file. It was not felt that it would be an advantage to refer the matter to a senior criminal practitioner outside the Criminal Justice Branch.
This final review concluded that there was not a substantial likelihood of conviction against either officer, and in respect to the jail sergeant it was felt that he would be entitled to presume that Frank Paul would be returned to an address and that he would have a place to stay where he would be cared for by his buddies and associates.
There was, however, no evidence anywhere in the file to suggest that Mr Paul either had a home or anyone to care for him. He was known to be homeless and to live on the streets of Vancouver. His innumerable booking sheets at the drunk tank recorded no known address.
He also, quite strangely, identified the following point as an impediment to a successful prosecution: “Crown is unable to prove that Frank Paul would not have died on the vegetable stand had he not been arrested by the officers”. What bearing that fact had on the prosecution of either of these two officers remains a mystery other than to the most cynical.
In June 2004, the Criminal Justice Branch released, what it thought, was the final word on the matter.
It prepared a media statement which explained that there had been five thorough reviews of the file (without mention of the known deficiencies in the investigation) and assured the public that there was insufficient evidence upon which charges could be pursued against either officer.
The clear implications of this release were that there were no failings in the police investigation, that the prosecutorial reviews had been thorough and exhaustive and that there was an insufficient basis to conclude that charges were appropriate. That is to say, that the police had committed no offences. But this was not the end.
First Nations leaders across Canada repeatedly called for a public inquiry and the leaders of the First Nations Leadership Council of British Columbia continued to press the Government for action.
Frank Paul’s family instructed a lawyer to join the demand for a public hearing. Finally, in 2007, the Solicitor General announced a public inquiry into the Frank Paul case.
The next month he announced that William H. Davies, QC, a retired Supreme Court judge, would head the inquiry.
On August 10 of that year the Attorney General published the inquiry’s purpose and terms of reference. Two years later, on February 12, 2009, Commissioner Davies published his interim report: Alone and Cold.
It was complete in every aspect, and delivered a scathing indictment on the circumstances that lead to Mr Paul’s death, but it didn’t deal with the Criminal Justice Branch – whose only role was to decide whether or not charges should be laid.
The branch had breathtakingly announced on the first day of the inquiry that the terms of reference should not be interpreted to require Crown Counsel to either disclose documents touching on the issue, or to attend and be examined under oath. They argued that they were constitutionally protected to not disclose their reasoning behind decisions.
It came despite the terms of reference clearly empowering the Commissioner to look into the response of the Criminal Justice Branch and the decisions of the various prosecutors not to charge anyone in relation to Mr Paul’s death.
It was gravely disappointing to members of the Paul family and their supporters, particularly due to the reversal of the Attorney General on the matter, who had already negotiated and signed off on the Terms of Reference.
Commissioner Davies rejected the Crime Justice Branch’s application, spurring the body to take the matter on appeal to the Supreme Court of British Columbia.
The Supreme Court rejected their reasoning, and so did the British Columbia Court of Appeal, who similarly agreed with these three rejections. It was then taken to the Supreme Court of Canada, the highest court in the country and the last avenue of appeal.
The Supreme Court in April declined to hear the appeal and as a result the Commissioner reconvened and began hearing from the prosecutors. Closing arguments were heard in mid-December and the final report is expected next month, some 13 years after the death of Frank Paul.
COMMISSIONER Davies was a thoughtful choice as Commissioner, and brought to his task a reputation for fairness and wisdom built over of 50 years as a lawyer and Supreme Court Judge.
By all accounts he has the confidence of all of the participants in the Inquiry – no small accomplishment.
And while no participant will say they see everything in exactly the same way as does the Commissioner, all will say that he did the best job that could be done to determine the truth about the issues he was to consider. And all will acknowledge that the recommendations he has made will greatly benefit the least fortunate of Vancouver’s east side, and are a fitting and positive legacy for Frank Paul.
The welcome reception he gave Peggy Clement, Frank Paul’s cousin, did as much as could be done to bridge the gap between a courthouse in Vancouver and a small reserve in New Brunswick 5,000 miles away. But as the Frank Paul Inquiry comes to a close, another Inquiry begins.
It is again focused on the downtown east side of Vancouver, only this time surrounding the deaths of numerous women in the sex trade – most of whom were First Nations. Serial killer Robert Pickton has been convicted of two of the deaths, and will never be released from prison; the remaining 26 charges will not be pursued. He is suspected of having killed many more young women, and has smirked that the number could be closer to 100.
The inquiry is being headed by Commissioner Wally Opal, who has called for an expanded mandate to look at why marginalised women, like First Nations, were targetted.
One of the questions that sparked the Inquiry is how could so many First Nations women go missing without triggering a massive and sustained investigation into their disappearances and deaths?
Also at issue is whether the fact that so many of these women were prostitutes and of First Nations heritage had a bearing on the inattention their disappearances were given by the Vancouver Police Force and the Royal Canadian Mounted Police.
Done well, as I am sure it will be, this Inquiry will get to the truth as to what happened, and it will likely make recommendations that will be helpful.
However one can’t help but think we’ll be back before long with some other similar Inquiry relating to some other aspect of the tragic lives and deaths of First Nations people.
While these inquiries are certainly necessary to support confidence in the administration of justice, it appears that it is not the front line individuals and agencies alone that warrant closer examination but, more importantly, it is the governments of Canada, both provincial and federal who should ask why, generation after generation, the national travesty of First Nations in Canada goes only obliquely addressed.
What is really needed is a national public inquiry into the status of First Nations within Canada, and, building on what would be learned, a joint federal and provincial commitment to join with First Nations in a fresh determination to dismantle the barriers that separate us.
* Steven Kelliher is a Canadian lawyer, representing the family of Frank Paul. He asked that his writing fee for this article be donated to an Australian charity associated with Aboriginal people. Tracker has donated $550 to the Death in Custody Watch Committee WA on Mr Kelliher’s behalf.