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Spotlight
on
Justice for Aboriginals

Public Inquiry
The Death of Frank Paul

Frank Paul's death in 1998 has BC making policy changes now
October 2011

FINAL REPORT
Of The Commission of Inquiry
June 2011

Here is the inquiry web site
read the transcripts, and background information

Justice for Frank Paul
News and Comment by Tehaliwaskenhas
Bob Kennedy
Copyright

April 8th, 2010 - British Columbia has lost its legal battle to keep its lawyers from being forced to testify at the public inquiry into the death of a First Nations man (Frank Paul, a Mi'kmaq man living in Vancouver who died in an alley shortly after police released him from custody). The Supreme Court of Canada has dismissed the case of the Attorney General of British Columbia v. William H. Davies, Q.C., Commissioner (BC had sought an appeal but the high court said no). This decision clears the way for Commissioner Davies to get the Crown lawyers to testify at the Frank Paul inquiry to provide key information. The way Mr. Paul was treated by two police officers became a big issue at the inquiry, especially because BC authorities chose not to lay charges against them. Everybody wanted to know why, but that's when the government lawyers dug in their heels and launched legal actions to protect themselves from being forced to appear at the inquiry. With the high court's ruling, we now will hear what led the Crown to decide not to charge the police. Previously, BC's highest court supported the right of the Commission of Inquiry to question prosecutors why didn't they lay any charges in connection with Frank Paul's death. When the BC government continued to fight the Commissioner, Urban Aboriginal groups accused the provincial Attorney General of "double dealing" and pointed to a police cover-up. Following the BC Supreme Court decision, a news release issued by First Nations leadership said, "The First Nations Summit, Union of BC Indian Chiefs, BC Assembly of First Nations and other BC Aboriginal organizations have always believed that the surviving family and relatives of Mr. Paul deserve to know exactly how and why Mr. Paul died, as does the B.C. public. We have clearly maintained that the unusual circumstances surrounding his death require further investigation which includes the full disclosure of all pertinent evidence and testimony in the case." Meanwhile, the Interim Report of The Davies Commission said the justice system failed Frank Paul, who died after not being treated like a human being by the police.

BC's highest court supports Commission of Inquiry right to question prosecutors
why didn't they lay any charges in connection with Frank Paul's death
July 23rd, 2009

Frank Paul Inquiry - Report

First Nations leaders call for complete overhaul of police system in BC
March 16th, 2009

Alone and Cold
An interim report of a public inquiry into the death of Frank Joseph Paul
March , 2009

Court favours access to key information in the Frank Paul Inquiry
June 24, 2008
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PERSPECTIVES

BC Civil Liberties Association
"The Inquiry provided a unique opportunity for the BCCLA
to uncover the truth of Mr. Paul's death
and to advocate for positive changes for reform."
2009
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Urban Aboriginal groups say Attorney General is double dealing
January 31, 2008
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Frank Paul inquiry raises questions of police cover-up
November 22, 2007
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Native deaths in police custody come under scrutiny in Vancouver

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News and Comment
by Tehaliwaskenhas
Bob Kennedy,
Copyright
Turtle Island Native Network
http://www.turtleisland.org

May 2009

The justice system failed Frank Paul, a Mi'kmaq man living in Vancouver who died in an alley after not being treated like a human being by the police.
Here are some of the conclusions contained in the Interim Report of The Davies Commission.
- Sgt. Sanderson wrongly refused Frank Paul access to the Jail's sobering cell, and Cst. Instant wrongly left him exposed to the elements, when he was incapable of caring for himself and where there was obvious risk to his health and safety. Sgt. Sanderson's explanations for refusing Frank Paul admission to the Jail are wholly unpersuasive and I reject them in their entirety.
The arresting officers were correct to conclude that Mr. Paul was severely intoxicated and unable to care for himself, and they were acting within existing departmental policy in referring him to the sobering cell of the Jail.
Frank Paul's condition at the Jail without question justified his admission to the sobering cell, and also justified an immediate assessment as to whether he also required medical assistance. He made no resistance and offered no objection to people caring for him, and he did not in any way cause or contribute to being left exposed to the elements in an alleyway on a winter's night. He was not left in circumstances similar to those in which he lived on the street-he was arrested under the cover from the rain afforded by an awning on the street front where he was found, but was left exposed to the wet and the rain in the alleyway.
It is not the case that the risks to his health and safety were the same where he was left as they were in his daily existence.
- The Aboriginal community quite understandably became concerned about the actions of the police officers involved, and became suspicious of the adequacy of the investigation. However, in my view, some of that community's more grave concerns can now be laid to rest. Specifically, Frank Paul did not die in the police wagon-the witness Patrick Lewis saw Frank Paul alive at least two hours after Cst. Instant left him in the laneway. I am also satisfied that neither ethnic discrimination nor overt hostility motivated Frank Paul's arrest, and that his Aboriginal status was not a factor in Sgt. Sanderson treating him with callous indifference.
Although I have seriously criticized the decisions and actions taken by some of the police officers involved, I accept that they did not intend to cause Frank Paul harm and were not seeking to accelerate or bring about his death.
- Here are some of the recommendations
-that the City of Vancouver, the Vancouver Coastal Health Authority, the provincial Ministry of Housing and Social Development, and the Aboriginal community jointly develop a comprehensive response to the needs of homeless chronic alcoholics within the city of Vancouver.
This would include (but not be limited to) the following components: a civilian-operated program for attending to chronic alcoholics who are incapacitated in a public place, a civilian-operated sobering centre, an enhanced civilian-based detoxification program, the provision of permanent low-barrier housing designed for the specific needs of chronic alcoholics, which would offer (if needed) palatable alcohol substitution and managed alcohol programs, and the provision of community-based, multidisciplinary assertive community treatment services.
- that British Columbia develop a civilian-based criminal investigation model for the investigation of police-related deaths occurring in the municipalities policed by the 11 municipal police departments.
- that the initial mandate of this organization ( the Independent Investigation Office - the IIO ) include a wide variety of factual circumstances, including (but not limited to) a death in a police department jail cell, a death resulting from an officer's use of force or a motor vehicle, or a death arising from some other form of police interaction with the deceased.
- that the statutory mandate of the Police Complaint Commissioner be extended to include the requirement that the commissioner conduct professional standards investigations of all police-related deaths arising in those British Columbia jurisdictions policed by municipal police departments.
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June 24, 2008 - Justice for Frank Paul might be easier to achieve, following a BC Supreme Court decision. Mr. Justice Melnick has ruled that the Commissioner in the Frank Paul Inquiry should have the full ability to review Criminal Justice Branch (CJB) documents pertaining to the Paul case and if necessary, require individuals who were with the CJB at the time of Mr. Paul's death to give evidence. While provincial authorities fought the Inquiry demands, Mr. Justice Melnick stated, " However, in my view, in the narrow and possibly unique circumstances here, if the written expression of the will of the Lieutenant Governor in Council and of the Attorney General has not been effective in waiving both Crown immunity and solicitor-client privilege, then the result is manifestly unfair to the public in general and to a significant group of interested citizens, namely the Aboriginal population and the Paul family. The Aboriginal population and the Paul family placed their trust in the Crown, as represented by the Government of British Columbia and the Attorney General, to provide them with the truth about the events surrounding the death of Mr. Paul. From what was said to me by counsel at this hearing, they have confidence in the Commissioner. Is there an honourable way out of this impasse for everyone? I have concluded that the answer lies in the concept of the honour of the Crown." The First Nations Leadership Council is calling on the Attorney General of BC and the Criminal Justice Branch to immediately act on this decision and allow William Davies, Commissioner of the Frank Paul Inquiry immediate access to all pertinent documents and witnesses and allow him to conclude his inquiry. Frank Joseph Paul, a Mi'kmaq man, died of hypothermia in December 1998 shortly after being released by the Vancouver police department into an east Vancouver alley. A news release issued following the BC Supreme Court judgment said, "The First Nations Summit, Union of BC Indian Chiefs, BC Assembly of First Nations and other BC Aboriginal organizations have always believed that the surviving family and relatives of Mr. Paul deserve to know exactly how and why Mr. Paul died, as does the B.C. public. We have clearly maintained that the unusual circumstances surrounding his death require further investigation which includes the full disclosure of all pertinent evidence and testimony in the case. The First Nations Leadership Council ultimately hopes the on-going public inquiry will provide recommendations on provincial policing practices involving, and relating to First Nations and Aboriginal peoples, as well as reconciliation measures between First Nations and the Crown in the area of policing."

January 26, 2008 - Hindsight is twenty-twenty, according to the familiar saying that we often use when we "should" on ourselves or others. Shoulda, coulda, woulda! It seems Senator Larry Campbell's sight was 20-20 when he testified at the Frank Paul Inquiry Friday. Senator Campbell is a former Vancouver Mayor and more importantly - that city's chief coroner at the time of Frank Paul's tragic death in a back alley. Ten years ago Campbell decided an inquest wasn't necessary. But during a gruelling day on the witness stand, bombarded by questions from Paul family lawyer Steven Kelliher, the Senator agreed he should have ordered an inquest. However, his -shoulda- acknowledgment didn't come until after he verbally jousted with the lawyer, and said he made the decision based on the facts - not because he didn't want to offend police, and certainly not because of racism against Aboriginals. It took ten years for "the system" to agree to an inquiry. Video was available ten years ago that proved an inquest was imperative. Another coroner did advise Campbell an inquest was appropriate at that time. This public probe may not be about racism, but who could blame us for assessing what we know so far, and coming to the conclusion that racism was a factor in not doing the right thing in 1998?
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November 13, 2007
Frank Paul "did not have an easy life," said Peggy Clement a cousin, who testified on the opening day of an Inquiry into the Mi'kmaq man's death in December 1998, shortly after being released by the Police into an east Vancouver alley.

He was well known to the police who had picked him up 231 times.

George Macintosh, lawyer for the Vancouver Police Department testified "at the jail, at that time, Frank Paul was ill-served by the unusual and perhaps unprecedented decision by the officer in charge of the jail to not admit him again into custody". In a statement, the First Nations Leadership Council said it hoped the truth will come in the Inquiry and bring closure to all. "It was systemic, institutionalized racism that led to Frank Paul's Death." said Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs. "This inquiry is about exposing the investigation, or rather, lack of investigation into Frank Paul's death" he added. "This inquiry has been a long time coming," said the AFN Regional Chief, Shawn Atleo. "It is important that this inquiry provide an accurate account of the night Frank Paul died, so that recommendations can be made to change the policies and practices of justice systems so that this doesn't happen in the future."

Chief Judith Sayers of the First Nations Summit political executive stated, "We are very relieved after years seeking justice for Frank Paul that the province through its commitment in the New Relationship, have established this important inquiry investigating the circumstance surrounding his death. We look forward to finding the answers to some of the questions that have plagued Frank Paul's family for the past decade and to have the inquiry table recommendations that will help alleviate some of the systemic problems in the justice system faced by First Nations people".

For Frank Paul's family, the inquiry represents a chance to bring some much needed closure to a sad chapter in their lives. "What happened to my cousin was a grave injustice. We will never see Frank again, but through this inquiry, he may finally get the justice he deserves. I pray this never happens to another family," said cousin Peggy Clement.

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Aug. 10, 2007
Terms of Reference announced in Frank Paul Inquiry

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March 9, 2007 - B.C. Solicitor General John Les appointed Mr. Justice William H. Davies, a retired BC Supreme Court judge, to lead the public inquiry into the death of Frank Paul.

The BC First Nations Leadership Council responded by saying, "We expect to be fully involved in the development of the inquiry's terms of reference as it is critical for us to ensure the family of Frank Paul and aboriginal people have the appropriate standing". Shawn Atleo, B.C. AFN Regional Chief and member of the First Nations Leadership Council welcomed the appointment of Mr. Justice Davies said, "We hope his work will finally provide closure to the family of Frank Paul, by providing them answers to questions they have been asking for almost ten years". Grand Chief Stewart Phillip, President of the Union of B.C. Indian Chiefs and member of the First Nations Leadership Council commented on the importance of the public inquiry, "Many, many individuals, aboriginal organizations, and human rights groups marched and lobbied for a full public inquiry into the tragic death of Frank Paul. Therefore, we need to ensure the public inquiry is fully empowered to carry out a comprehensive investigation into the conduct of all police, corrections, and Provincial government officials involved in the Frank Paul tragedy".

Mr. Paul, a Mi'kmaq man, died of hypothermia in December 1998 shortly after being released by the Vancouver police department into an east Vancouver alley. It is hoped the inquiry will answer the many questions that remain regarding the circumstances of his death.

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BC Government finally announces public inquiry
into the death of Frank Paul in a Vancouver alley

February 22,2007
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PERSPECTIVE
"We owe him, and ourselves, some answers, about what happened
and whether anything needs to be done to make sure
it doesn't happen again"

Paul Wilcocks
February 22,2007
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PUBLIC INQUIRY is a MUST!
News and Comment
by Tehaliwaskenhas
Bob Kennedy, Oneida
Copyright
Turtle Island Native Network
http://www.turtleisland.org

February 20, 2007 - It was obvious and still is - what happened to Frank Paul, a member of the Big Cove First Nation, must be the subject of a public inquiry. The Union of BC Indian Chiefs has issued a call for justice - five years after lawyer Dana Urban did the same, as he testified at a Special Committee to Review the Police Complaint Process in British Columbia and explained, "A human life was needlessly lost, racial prejudice or indifference was likely involved . . . Surely, Frank Paul, aged 47, a first nations person of the downtown east side, deserved at least the same consideration as a pit bull. What do we have? We have a man who didn't make a movement, whose clothes were soaking wet, being dumped in the middle of nowhere in 2 degrees Celsius weather." The BC Police Complaints Commissioner recommended a public inquiry in 2004. But authorities refused! Solicitor General Rich Coleman said in March 2004, "I have not seen anything as yet that would actually lead me to see that in the public interest, a public inquiry would serve any purpose."

This week media reports revealed more about Frank Paul and what he faced on that ill-fated night in December 1998. Mr. Paul died of hypothermia. "The circumstances surrounding the death of a Mi'kmaq man warrants an inquiry under the Inquiries Act in order that the concerns of his family, the aboriginal community and those directly involved may be fully addressed." The Union of BC Indian Chiefs called for the inquiry into the death of Frank Paul, who died eight years ago in Vancouver, of exposure after being dragged out of the police station and into a police van. "The Union of BC Indian Chiefs strongly urges Wally Oppal, BC's Attorney General, to immediately convene an independent public inquiry into the death of Frank Joseph Paul," stated Grand Chief Stewart Phillip.

He was responding to reports that Greg Firlotte, a Corrections Officer who was on duty the night Frank Paul died, has come forward with new information about that night in December 1998. "The officers swore a duty to protect all citizens. I believe Mr. Firlotte is courageously speaking out because it is the right thing to do. The Vancouver Police Department must be held accountable. Mr. Firlotte's statement that the VPD did not interview him either, suggests a gross oversight or a deliberate cover-up attempt to protect the VPD," said Grand Chief Phillip.

"It appears that the death of Frank Paul is a case that would greatly benefit from Justice Josiah Wood's recent review of the police complaints process in BC, where he made excellent recommendations for change such as requiring officers to cooperate with misconduct investigations, empower the Office of the Police Complaints Commissioner to direct police to take any investigative steps it believes necessary and requiring all investigation of deaths in custody to be handled by an outside police agency . . . First Nations continue to express our grave and growing concerns about police conduct in cases where First Nations people die in police custody. Rather than setting out to disprove or dismiss allegations, police are expected to conduct a full, fair and just investigation."

It is not the first time the Union of BC Indian Chiefs called for a Public Inquiry. In March 2004 there was another



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BACKGROUND

At 8:18 p.m. on December 5, 1998 Frank Joseph Paul, a 47-year-old New Brunswick Mi'Kmaq First Nations man living in Vancouver, was arrested in the Downtown Eastside of Vancouver by two Vancouver police officers for being intoxicated in a public place. He was transported to the Vancouver Police Department's jail facility at 312 Main Street. Several minutes later he was removed from the lockup, placed into a police van, and left in an alleyway in East Vancouver. Mr. Paul's body was found at the same location at 2:41 a.m. the following morning.

According to the autopsy report, death was attributed to hypothermia due to acute alcohol intoxication. The coroner decided against calling a Coroner's Inquest, choosing instead to conduct an Inquiry without a jury under s. 20 of the Coroners Act, and issued a Judgment of Inquiry.

In 2000 the Vancouver Police Department concluded disciplinary proceedings against two officers. One officer was suspended for two days for discreditable conduct, and the other officer was suspended for one day for neglect of duty.

In January 2002 the Police Complaints Commissioner advised the Chief of the Vancouver Police Department that, in his view, a Public Hearing under the Police Act would not be the appropriate vehicle to address the issues arising from the death of Mr. Paul, and that he would be taking no further action. He subsequently wrote to the provincial Solicitor General, recommending an inquest and suggesting a province-wide review of police response to circumstances where they detain or release people who are unable to care for themselves.

In June 2003 the new Police Complaints Commissioner released to counsel acting for Mr. Paul's family portions of the police jail surveillance video depicting Mr. Paul's arrival and departure at the Vancouver Police jail on December 5, 1998. Based on new information concerning the circumstances of Mr. Paul's removal from the jail hours before his death, the Police Complaints Commissioner re-opened the Frank Paul file. In January 2004 he published Reasons for Decision in which he recommended a full public inquiry.

On several occasions the Criminal Justice Branch of the Ministry of Attorney General examined the circumstances surrounding Mr. Paul's death. In each review, the Branch decided not to proceed with criminal charges against any of the police officers involved.

On February 22, 2007 the Minister of Public Safety and Solicitor General announced a public inquiry into the Frank Paul case. On March 9, 2007 he announced that William H. Davies, Q.C. would act as commissioner, and that the inquiry would be conducted under the proposed new Public Inquiry Act.

On August 10, 2007 the Attorney General published the public inquiry's purpose and terms of reference. The Commission is to submit a final report to the Attorney General on or before May 31, 2008.

May 5, 2004
Vancouver Police Chief admits officers did not do enough
to safeguard Mi'kmaq man, Frank Paul who died in 1999
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Despite compelling evidence
BC Government rejects idea of a public inquiry
into the tragic death of Frank Paul

March 18, 2004
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BC Legislature - TUESDAY, MARCH 23, 2004

CALL FOR PUBLIC INQUIRY INTO CASE OF FRANK PAUL

J. Kwan: On December 20, 2001, the Solicitor General rejected a request from the independent police complaint commissioner to hold a coroner's inquest into the death of Frank Paul. Why? Because he was worried that it might bring up charges of racial discrimination. God forbid that we discuss racial discrimination in the case of an aboriginal man left to die on the streets of Vancouver by the Vancouver police.

At the time it was the Attorney General, not the Solicitor General, who had the power to act on the police complaint commissioner's recommendation. But the Solicitor General blocked the recommendation, saying that he was concerned that the issues "of racial discrimination are likely to become the central features." Did the Attorney General agree with his colleague's rationale for blocking the coroner's request?

Hon. G. Plant: The Solicitor General is the minister responsible for the Police Act and for any of the provisions under that act that are of interest to the member.

Mr. Speaker: The member for Vancouver–Mount Pleasant has a supplementary question.

J. Kwan: This is a serious matter. A man was left to die in the streets of Vancouver, and the Attorney General was in charge at the time, when the recommendation was made to him. He passed the buck then, and he's passing the buck now.

Since the Solicitor General denied this request, a new independent police complaint commissioner has now asked that a public inquiry be held based on new evidence and new witnesses. The new commissioner points out that the case of Frank Paul is not an isolated incident, citing the Stonechild inquiry in Saskatoon.

"Not my problems anymore," says the Attorney General. "I handed over responsibilities for this to the Solicitor General two weeks ago in cabinet through an OIC."

J. MacPhail: Secret.

J. Kwan: Secretly — with no fanfare, no public acknowledgment that he has passed the buck. Instead of passing the buck…

Mr. Speaker: Please, order.

J. Kwan: …on the death of the aboriginal man….

Mr. Speaker: Order, please, hon. member. Time for the question.

J. Kwan: Here's the question: instead of passing the buck on the death of an aboriginal man who was dragged from his jail cell and left to die alone on the streets in Vancouver, will the Solicitor General now call for a full public inquiry into the case so that we can face up to legitimate questions about racial discrimination and possible wrongdoing by the police — any possible wrongdoing by the police — so that the man who died, Frank Paul, is not in vain?

Hon. R. Coleman: Frank Paul died in 1998. The member was in government in 1999, 2000 and 2001. Her previous government saw fit to not do any more than take the advice of a coroner's inquiry. There was a coroner's inquiry done at the time that this took place. There was discipline given to the police. Two previous police complaint commissioners made it very clear that they did not request and did not ask for a public inquiry.

In addition to that, the chief coroner has reviewed the file from the police complaint commissioner and has come to the opinion that the coroner's inquiry acted correctly at the time of the incident. I think the member should recognize that what we'd like to do — and I've already started this process and will continue it…. We need to find long-term solutions for people who would be found in situations like Frank Paul in her constituency and others. That's what we need to do from this. I have not seen anything as yet that would actually lead me to see that in the public interest, a public inquiry would serve any purpose.


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For Immediate Release January 20, 2004
RECOMMENDATION FOR PUBLIC INQUIRY INTO DEATH OF FRANK JOSEPH PAUL
Click Above to Read the Commissioner's Reasons

VICTORIA - Police Complaint Commissioner Dirk Ryneveld QC has made recommendation to the BC Attorney General for a Public Inquiry into the circumstances surrounding the death of Frank Joseph Paul - the New Brunswick Mi'Kmaq man who was found dead in a Vancouver Downtown Eastside alley in the early morning hours of December 6, 1998.

Citing the Paul case as one of the most prominent of the files awaiting his attention, upon his taking office as Police Complaint Commissioner in February of 2003, Ryneveld has determined that the issues are so serious that an Inquiry is necessary in the public interest:

"An Inquiry under the Inquiry Act at this late date is best suited to arrive at the truth and make recommendations for future conduct. Those recommendations would not necessarily be limited to the policies and practices of the Vancouver Police Department, but may have province-wide or even country-wide benefits," said Ryneveld.

Ryneveld also recommended as an alternative, that the Chief Coroner reconsider conducting a Coroner's Inquest into the circumstances resulting in the death of Frank Joseph Paul, on the basis that the police duty of care continued to make the police responsible for Frank Paul after leaving him in the alley where he was found dead - since Paul was incapable of caring for himself. Indicating that the Coroner's Inquest option did have limitations in its scope, Ryneveld indicated that the preferable option was for the Attorney General to appoint a Commissioner to conduct a Public Inquiry under the Inquiry Act.

The police complaint commissioner's Reasons for Decision may be found in its entirety on the website of the Office of the Police Complaint Commissioner: www.opcc.bc.ca - 30 -

Contact: Dirk Ryneveld Police Complaint Commissioner 250-356-7458
www.opcc.bc.ca
------- Commissioner's Report (.pdf file)

Frank Joseph PAUL - REASONS FOR DECISION - Background:

On December 6th, 1998, the body of Frank Joseph Paul was discovered in an alley in the downtown eastside of Vancouver. A postmortem examination of Mr. Paul's body determined that the cause of death was hypothermia due to or as a consequence of acute alcohol intoxication. Accelerated heat loss of the body was attributed to his rain-soaked clothing.

The discovery of Mr. Paul's body in the early morning hours of December 6 th launched a chain of events with far reaching consequences. The troubling circumstances of Mr. Paul's tragic death are still, now some five years later, in need of a full public examination to determine what factors led to his death and how a similar tragedy may be avoided in the future.

Brief facts:

Very briefly stated, Mr. Paul was in police custody on two occasions on 5 December 1998. At 10:45 hours, police attended at 404 Abbott Street as a result of a telephoned complaint and found Frank Paul in a state of intoxication in a public place. He appeared to be intoxicated, uncooperative and unsuitable to take to a detoxification centre. Police therefore arrested Mr. Paul and transported him to the police jail at 312 Main Street. On arrival at the police jail, police reported that he was unable to keep his balance so he was guided to a wall where he slid down to a seated position. Police jail video shows Mr. Paul crawling on hands and knees to the elevator door at 11:22 hours. Correctional officers assisted him with the removal of wet clothing since he was unable to accomplish that by himself.

Mr. Paul spent time in the "drunk tank" while his clothing was being dried and he was sobering up. By 16:57 hours the police jail surveillance video recorded Mr. Paul emerging from the jail elevator walking upright and unassisted by anyone. At 18:06 Mr. Paul walked out of the police jail. In the interim time, he can be seen on the video putting on a sweater and an outer jacket, unassisted; being handed a cup of coffee while he sat against the wall in the wagon bay area, and speaking to police officers prior to his departure. Approximately two hours later, at 20:18, two Vancouver police officers once again arrested Mr. Paul for being intoxicated in a public place, having found him rain-soaked, lying on his back on a vegetable stand in the 400 Block of Dunlevy Street with the temperature at about 2 degrees C. The arresting officers reported that his speech was slurred and incoherent, he was unable to sit up or walk, and was apparently unable to care for himself. The police wagon driver then attended and transported Mr. Paul to the police jail.

The arresting officer had reported that Frank Paul could not stand and had to be carried and placed inside the wagon. At 20:25 hours, Mr. Paul arrived at the police jail and the jail surveillance video recorded the dragging of a motionless Frank Paul from the police wagon into the jail elevator; a visible wet trail left behind as his rain-soaked body was dragged along the concrete floor. Over the ensuing minutes a number of individuals are noted on the video to witness Mr. Paul's physical condition. He was seen by the Sergeant on duty who determined that he did not believe that Mr. Paul was intoxicated. The Sergeant had considerable experience with Mr. Paul who was an unemployed chronic alcoholic with no fixed address who had been "a regular" for some months at the city jail for being in a state of intoxication. The Sergeant reported that Mr. Paul's condition "did not appear any different to his usual state of post-gaol stay sobriety" despite the Sergeant's observing his actual state of sobriety when Mr. Paul walked out of the jail two hours earlier.

The Sergeant was unable to confirm any residence for Mr. Paul, who had been booked in as "no fixed address" and told the wagon driver to "breach Mr. Paul out of the [downtown] area". At 20:30 hours the jail surveillance video depicts the wagon driver and a Provincial Correctional Guard dragging a still rain-soaked, motionless Frank Paul from the elevator to the police wagon along the floor of the wagon bay area. After the wagon driver delivered another intoxicated individual in the police wagon to a detox center, Mr. Paul was placed in a nearby alley. Mr. Paul's lifeless body was found at 2:41 early the next morning at that same location.

Historical review of process:

When I took office in February of 2003, the Paul file was one of the most prominent of the many files that awaited the attention of the incoming Police Complaint Commissioner. This file had been the subject of significant media attention during the term of the previous Police Complaint Commissioner and was also a major topic of discussion before the Special Committee to Review the Police Complaint Process. It has been said that the handling of this very case by both the police and the Office of the Police Complaint Commissioner (OPCC) led to a significant loss of public confidence in the police complaint process.

On January 18 th , 2002, approximately two years after the Vancouver Police Department (VPD) had imposed a two day suspension on one of the officers involved for discreditable conduct and a one day suspension on the other for neglect of duty, the former Commissioner Don Morrison, communicated his decision by letter. He advised the Chief of the Vancouver Police Department that, in his view, a Public Hearing would not be the appropriate vehicle to address the issues arising from the death of Frank Joseph Paul and that no further action would be taken by the Police Complaint Commissioner. The stated reasons in that letter cited "extended delays" and "other public interest considerations".

In his evidence before the Review Committee on 16 May 2003, the former Commissioner expanded on those reasons stating: "I took the position on Mr. Paul's tragic death that the province would be best served by a process that had a wider scope and a broader focus and allowed for a fuller airing than is possible at a public hearing." He cited other considerations which included inter alia: that a Police Act Public Hearing is limited to police conduct and cannot examine the duty of care owed by other agencies into whose care people may be released; that police officers are not compellable witnesses under the Police Act whereas they are compellable at an Inquest; and that an Inquest would be followed by recommendations for police policies and practices that will help avoid similar deaths or injuries to persons who are detained and released by police. He further indicated that he had written several letters to the Solicitor General recommending both the holding of an Inquest and suggesting a province-wide review of police response to circumstances where they detain or release people who are unable to care for themselves. He also advised the Review Committee that the Solicitor General had declined his requests but agreed to include this issue as the next high risk item for examination in his regular audit of police agencies within the province.

My review of the file indicates that Mr. Morrison indeed wrote to the Solicitor General on 4 October 2001 recommending a province-wide review. By reply on 20 December, the Solicitor General advised Mr. Morrison that he agreed it would be timely to conduct the recommended evaluation under section 50 of the Police Act and had requested the Director of Police Services to include the issue as the next high-risk item for examination in his regular audit of police agencies within the Province. On 24 March 2003 I wrote a follow-up letter to the Solicitor General requesting a status update regarding the review. On 15 May 2003 the Solicitor General replied to the effect that they had conducted a preliminary review of the issue and in April 2002 had released the Municipal Police Evaluation of Detention Facilities, but that staff had not yet had the time to undertake a full examination of the issue. To my understanding, to date the matter is still outstanding.

Subsequent to the testimony of various staff members of the former Commissioner's office before the Special Committee concerning the Frank Joseph Paul case during April 2002, the Office of the Police Complaint Commissioner received two “third party” complaints regarding the death of Frank Joseph Paul.

In July 2002, legal counsel on behalf of the family of the deceased requested that the Paul family be provided with a copy of the police jail surveillance video and later in July, the BC Civil Liberties Association requested that the then Acting Police Complaint Commissioner publicize the details of the investigation into the death of Frank Joseph Paul and the actions taken, to prevent the reoccurrence of such a tragedy. Also in July of 2002, the President of the United Native Nations Society lodged a Police Act complaint regarding the death of Frank Joseph Paul.

On September 26 th , 2002, Ben H. Casson, QC, the Acting Police Complaint Commissioner, who was appointed in July 2002 following Mr. Morrison's resignation, wrote to legal counsel for the Paul family advising that he lacked jurisdiction to re-consider the decision of the former Police Complaint Commissioner to not order a Public Hearing into the death of Mr. Paul. He also concluded that the Freedom of Information and Protection of Privacy Act precluded a copy of the police jail video tape being provided to the Paul family. During the transition of responsibilities when I took office, Mr. Casson shared his ongoing concerns about this file with me and indicated that he had been considering an option of referring the matter to an independent, experienced person to conduct a review of the file and prepare a report on what happened to Mr. Paul.

It was pursuant to this abbreviated history of events that I, as the incoming Police Complaint Commissioner, had to make a determination as to what action would, in my view, be in the public interest.

File review:

After having reviewed the extensive file, the evidence before the Special Review Committee, and having personally viewed the police jail surveillance video depicting the last known moments in the life of Frank Paul, I concluded the family deserved to know the facts concerning Mr. Paul's death in light of conflicting reports the family had received regarding the circumstances of his death. It was my understanding that the family had received differing reports from the police that included one version that Mr. Paul had been the victim of a "hit & run" accident and struck by a taxi cab; and another version that simply advised them that he had died of hypothermia. It was apparent that the family did not know that Mr. Paul had been in police custody at the time of or shortly before his death.

Accordingly, on June 20 th , 2003, I authorized the release of portions of the police jail surveillance video depicting Mr. Paul's arrival and departure at the Vancouver Police jail on December 5 th 1998, to the family's counsel.

That video subsequently found its way into the hands of the media and received wide circulation, both on television and selected images in the print media. In the interim, in early June 2003, my office received new information concerning the circumstances of Mr. Paul's removal from cells hours prior to his death. I assigned a member of my staff, an experienced retired RCMP officer, to follow up that information by conducting an interview with an individual who had new information to provide concerning the incident. That interview also provided the office with additional leads of potential new evidence that needed to be followed up.

Accordingly, on June 23 rd 2003, I advised Chief Graham of the Vancouver Police Department that I had re-opened the Frank Paul file and requested accessto the Major Crime Section death investigation file, the VPD Internal Section investigation file and all relevant historical arrest booking and release records associated with Frank Paul. I also requested them to identify all guards and officers depicted in the video who had not previously been identified or interviewed.

Lack of Clarity in the Legislation:

Throughout my dealings with this tragic case I have agonized about what was the "right thing to do". Unfortunately, not only are there differing independent legal opinions about whether a Police Complaint Commissioner under Part 9 of the Police Act has the power to re-consider the decisions made by the previous Commissioner, but there are also other competing legal and fairness issues at play. One view is that I do not have jurisdiction to re-open a file once a previous Commissioner has made a decision. The other view is that in certain exceptional circumstances, I have the power to do so.

Assuming that I have the authority to make any decisions at all in these unique circumstances, there are many competing interests to be taken into consideration in making a subsequent discretionary determination as to what course of action is appropriate in the public interest.

For the purposes of these Reasons for Decision, I will summarize my understanding of the applicable administrative law that relates to my power as the Police Complaint Commissioner under Part 9 of the Police Act to re-open decisions that have been previously made under the Act.

In my view, generally speaking, decisions of the Police Complaint Commissioner are intended to be final and conclusive once made. Although I am unaware of any case law directly on point, my view of the law contained in certain analogous administrative law cases is that arguably, in appropriate circumstances, a tribunal can re-visit past decisions in order to remedy an injustice that cannot otherwise be remedied where the circumstances are extraordinary; the reasons for re- opening are compelling; and where the re-opening is supported by indications in the enabling statute.

Also to be taken into consideration is the fact that in most of those cases the legal proposition is that where a request for re-opening is advanced long after the decision in question has been made, justice may be best served by favouring the finality of the decision-making process, even if a legal case can be made for re- opening.

Unfortunately, the Police Act is not clear as to whether or not a Commissioner may re-open previous decisions. I have read a number of independent legal opinions on this issue with differing conclusions. I must therefore rely on my personal legal interpretation and the exercise of my discretion as to what is in the public interest. Rightly or wrongly, I have concluded that I have the discretion to re-open or re-consider a previous decision in exceptional, compelling circumstances. In my view, that power is inherent in the legislation which requires me to provide effective civilian oversight of the police. The legislature surely did not intend to provide me with a duty, responsibility or obligation without also providing me with the authority or means to carry it out.

Having said that, it must be remembered that the Acting Police Complaint Commissioner, Ben H. Casson Q.C., earlier came to a contrary conclusion having decided that he lacked jurisdiction to re-consider the decision of former Police Complaint Commissioner Don Morrison to not order a Public Hearing into the death of Frank Joseph Paul. In complete fairness, given the uncertainty in the legislation, I cannot find legal fault with Mr. Casson's conclusion. I am simply of a different view. Additionally, the Acting Commissioner did not have the same facts available to him that I do at this time. The subsequent information available to me prompting our re-investigation of certain aspects of the file persuaded me that this case falls into the category of exceptional circumstances providing compelling reasons for re-opening the file.

Having decided that the combination of new information and the unsatisfactory communications with Mr. Paul's family by the VPD dictated that I should re-open the file in the public interest, I instructed members of my staff to review the file. Unfortunately, because of the complexity of the file and due to other pressing matters, I have not been able to formulate my final decision until now. Once having decided to re-open the file and having conducted a thorough review, I next had to turn my mind to exercising my discretion as to whether or not it was appropriate in all the circumstances to order a Public Hearing. After careful consideration, much deliberation and a weighing of relevant factors, I have come to the reluctant conclusion that for a number of reasons it would not ultimately be in the public interest to now order a Public Hearing under the Police Act.

In my view, the public interest would be much better served by my recommending other viable alternatives authorized by legislation to provide an open and transparent account of what happened to Mr. Paul on the 6 th of December, 1998, and hopefully to prevent such tragic and unnecessary circumstances from ever occurring in the future anywhere in the Province.

.CONSIDERATIONS:

Delay

In my respectful view, this case cried out for a Public Hearing to have been called in the first instance when the two officers involved were first assessed their one and two day suspensions respectively by the VPD Discipline Authority. It continues today to cry out for a public airing of the facts, policies, and circumstances that permitted this tragedy to occur.

The Police Act is very clear in providing authority to the Commissioner to order a Public Hearing in the first instance where he determines that there are grounds to believe that a Public Hearing is necessary in the public interest

1[1], and requires him to notify the relevant parties within 10 business days after making a decision to arrange or to refuse to arrange for a Public Hearing

2[2] . Now, however, nearly three years have passed since the decision not to arrange for a Public Hearing was made, and more than five years have passed since Mr. Paul's death. That delay has raised a significant legal question as to whether there is now authority to do what ought to have been done earlier.

Family's concerns

Complicating the matter is the fact that Mr. Paul's family residing on the Big Cove Reserve in New Brunswick was not provided with accurate information as to the circumstances leading to Mr. Paul's death. Consequently, they did not file a complaint with the Police Complaint Commission, and did not have the rights and privileges flowing from such a complaint process available to them. Once apprised of the true circumstances of Mr. Paul's death, the family's reaction seems to me to have been best expressed by the statements of a family member reported in the media to the effect that "a dog would get better treatment than he got" and "I hope with all my heart…that someone will be able to do something about it, look into it anyway, what really happened".

In my respectful view, although not determinative of the issue, in these unique circumstances the family;s concerns are to be given considerable weight in my determination of what is in the public interest. Through their counsel, the family is not seeking a Public Hearing under the Police Act. Instead, they are requesting that a Public Inquiry be held and that I exercise my discretion under s.50(3)(f) of the Police Act to make recommendations to the Attorney General to hold a Public Inquiry. I have the power to do so if there are reasonable grounds to believe that that the issues are so serious that an inquiry is necessary in the pubic interest or where in my view an investigation, even if followed by a Public Hearing would be too limited in scope. In my view both of those preconditions exist in this case.

Limitations of a Public Hearing under the Police Act

There is often confusion in the media and minds of the public as to the nature of a Public Hearing. Too often the terms "Public Hearing" and "Public Inquiry" are used interchangeably. They are not interchangeable. They have both a different focus and a different scope. A Public Hearing under Part 9 of the Police Act is called when the Police Complaint Commissioner disagrees with the decision of the Discipline Authority (usually the Chief of Police or his designate) to dismiss a complaint, or alternatively with the type of penalty imposed on an officer who was 1[1] See S. 60 (3)(b) and s. 60 (4). 2[2] See S 60 (6)found to have committed a disciplinary default. The focus of that Public Hearing is intended to be on the behaviour of the officer(s) and is limited in scope to a particular incident or penalty (or lack of one). The Adjudicator appointed to preside over the Public Hearing has the power to make findings of fact, decide if a disciplinary default took place, and, if so, to impose the appropriate penalty. Thus, the purpose of the Public Hearing is to deal with allegations of misconduct by a particular officer or officers, and has a potentially punitive nature to it. It is limited in scope and therefore usually cannot address concerns about systemic problems within a police force or policing in general in the Province, or general policies governing the way police practices are conducted. There are also limitations on the participation of individuals who may have evidence to give, and limitations on legal standing of certain parties during the course of the Public Hearing.

Legal challenges

Further complicating matters is the fact that essentially for the reasons outlined earlier concerning the legal issues respecting the commissioner's power to revisit previous decisions, to now order a public hearing would undoubtedly result in legal challenges being raised in court by the police, the respondents, the police union and any other party who may be affected by my decision. Those challenges would undoubtedly be protracted, with a potential of ultimately reaching the Supreme Court of Canada, and based on my experience, could take another three years to resolve. It would not be in either the interest of the family, the complaint process or the public interest to further delay these proceedings because of legal challenges to my authority under existing legislation. In addition to the legal challenges to my authority to re-open the case, I could anticipate potential common law legal arguments of res judicata, issue estoppel, double jeopardy, abuse of process based on delay, and challenges under the Canadian Charter of Rights and Freedom.

Practically speaking, not only would the time delays be adverse to the public interest, but the cost of litigation does not warrant embarking upon such a course of conduct. The public interest includes many aspects and cost to the taxpayers as a factor cannot be overlooked as a proper consideration.

Finality and fairness

As I have stated earlier, there is another legal consideration that dictates against ordering a public hearing at this stage – one of finality and fairness. It must be remembered that although I disagree with the minimal penalty imposed by the discipline authority against the two officers involved, they did “serve their sentence” so to speak. Regardless of how inadequate I deem their one- and two-day suspensions to be for their actions, at law there has to be a reasonable finality to the complaint process under the Police Act. To now, approximately three years later, put them again in jeopardy for an increased penalty under the Police Act that they had thought was behind them, may violate the fundamental principle of fairness, and contravene the administrative law concept that theremust be some degree of finality. Unlike a Coroner's Inquest or a Public Inquiry, a Public Hearing under the Police Act focuses on imposing corrective measures or discipline on officers found to have committed a disciplinary default. These two police officers had already been dealt with and had their punishment imposed. Therefore, in all of the circumstances, this consideration also militates against now ordering a Public Hearing.

ALTERNATIVES: Once having decided that a Public Hearing under the Police Act at this stage of the proceedings is not appropriate for the aforementioned reasons, I next turn to the available alternatives that have both the legislated mandate and the proper scope to address many of the concerns raised by the Paul incident. I initially considered the option contemplated by Mr. Casson of hiring an independent person of impeccable qualifications and standing in the community to conduct a review of the file and to prepare a report to our office outlining that individual’s findings and recommendations. The difficulty with that option was that such an individual would not have the legislated powers of summons or subpoena to have access to the kind of information necessary to prepare a report that was comprehensive in scope. Such a report would be based on available evidence and would have to rely on total co-operation of all individuals and agencies who may have information material to the matter. Nor would any recommendations flowing from such a report have any binding legal effect.

Additionally, there is no provision under the present legislation which contemplates that route as an option. The Police Complaint Commissioner seems to be limited to arranging a Public Hearing – not hiring an independent person to conduct an inquiry and publishing a report. On balance therefore, in my respectful view, the public deserves to have a thorough public airing of the circumstances, in a process whereby the decision- makers have legal access to all the relevant information, supported if necessary by subpoena and summons powers. I next turned to the consideration of two other options:

1. A Coroner’s Inquest under the Coroner's Act: At the outset, it must be pointed out that a Coroner’s Inquest with a jury was never held in this case. Instead, the Coroner’s office issued a Judgment of Inquiry authored by the Vancouver Regional Coroner. Pursuant to s. 10 of the Coroner’s Act an inquest is mandatory where there is a "death in the circumstances referred to in section 9(3)". Section 10 states:The coroner must issue a warrant to hold an inquest in the case of a death in a police prison or lockup or of a death in the circumstances referred to in section 9 (3). Section 9(3) states: If a person dies while detained by or in the actual custody of a peace officer, the peace officer must immediately notify the coroner. [Emphasis added] It is my understanding that such a mandatory Coroner's Inquest was not held because of the Coroner's view that this was not technically an "in-custody" death. The Coroner in coming to that determination obviously relied on the facts contained in what I now deem to have been an incomplete and therefore flawed investigation. In fairness to the Coroner, their office at the time of making their determination not to hold an Inquest, did not have the benefit of two vital pieces of information - Dr. Ferris' report that, among other things, indicates that Frank Paul may well have died in the police wagon itself; and the most cogent piece of evidence-the surveillance video. Nor did the Coroner have the benefit of highly relevant new evidence obtained by my office since we re-opened the file. In my respectful view the circumstances by which Mr. Paul was deposited in the alley and allowed to succumb to hypothermia indicate that arguably he never left police custody. In his condition, he was unable to look after himself. He was in police custody once they brought him into the police station. He remained in their custody when they dragged him in a helpless state into the police transport. The police officers dealing with Mr. Paul that night had a duty of care towards him. In addition to the duties of care defined over many years in our common law, the VPD has its own policy manual establishing the duty of care owed by its officers to persons like Mr. Paul. That duty of care is set out in a number of sections in their Policy Manual. They are as follows: Section 13.1 (Code of Ethics). That section provides, among other things: As a member of the community and as a police officer, I recognize that my fundamental duty is to protect lives…and be constantly mindful of the welfare of others…. I will preserve the dignity of all persons…. I will honour the obligations of my office and strive to obtain excellence in the performance of my duties.Section 77.2(1) states: members shall be responsible… for the safe custody, at all times, of … (a) (a) persons arrested by them; (b) (b) persons guarded by them; and (c) persons escorted by them. Section 128.1 (Arrest-hold State of Intoxication in a Public Place) reads: (1) (1) only those persons who are intoxicated by alcohol or a drug to the extent that they are unable to care for themselves will be arrested…. (b) intoxicated persons who are found to be medically questionable, injured, ill…must be sent to the hospital. Members are advised that the individual may be unable, given the nature of his injuries or degree of intoxication, to make rational decisions with respect to medical treatment…. (4) non-violent persons arrested shall be taken to the designated detox center located at 377 E. 2 nd Avenue. Mr. Paul was at their mercy as to where he would be taken. Whether they lodged him in cells, took him to a detox facility, or dumped him in the alley was not within his control. He had no say in the matter, and had no ability to affect his situation. Had they taken him in that condition to either a detox facility or to hospital, he would have been turned over to others who had a duty to care for him. Arguably, by dumping him in an alley, the police did not turn over his care to anyone else. They continued to be responsible for his care since he was incapable of caring for himself. In that sense, he remained in their custody, albeit not in a traditional location. A similar reasoning process drives one to the conclusion that he had also been "detained by…a peace officer" and therefore also met the preconditions in s. 9 (3) to make the holding of an Inquest mandatory. Additionally, it is significant to note that the police themselves referred to this matter in all of their investigations as an "in custody" death. The file cover report received by our office from the VPD reads: 'SUDDEN DEATH (IN CUSTODY)". Hence, for all of those reasons in my view, the Coroner ought to consider this to be an in-custody death and be governed by the mandatory duty to hold an Inquest. If I am wrong about the determination as to whether Mr. Paul was "detained by a peace officer" or "in custody" and therefore holding an inquest was not mandatory, then in my respectful view, the Coroner still had a residual discretion to hold a Coroner’s Inquest pursuant to section 18 of the Coroner’s Act. Thecircumstances of Mr. Paul's death, including factors of the VPD policy of "breaching", the fact that Mr. Paul was a member of a marginalized group of individuals residing in the Vancouver downtown East end, and the fact that the VPD had decided that the officers involved had committed disciplinary defaults warranting suspensions to be issued, could have provided the Coroner with ample reasons to conduct a Coroner's Inquest. Instead of calling a Coroner's Inquest, the Coroner decided to conduct an Inquiry without a Jury pursuant to s. 20, and ultimately issued a Judgment of Inquiry on 8 November 1999. The Coroner concluded that the immediate cause of death was hypothermia due to exposure/alcohol intoxication and classified the death as accidental. The Coroner also made certain recommendations involving staff education at the Vancouver jail and amendments to the policy manual and record keeping. The Coroner made these recommendations because of "a series of non-medical judgments and lack of clear policy"(by the VPD). It is tangentially of interest that the recommendations contained in the coroner's 8 November 1999 Judgment of Inquiry are directed to the Vancouver City Police Corrections located at 312 Main Street. Arguably, those recommendations are limited to that institution. The problem is that the VPD jail facilities were moved from 312 Main street to the Provincial Remand Centre at 222 Main Street on 22 August 1999. Since that date all remanded persons in custody at that facility are under the jurisdiction of the Provincial Corrections Department and hired by the provincial government. Arguably, the coroner's recommendations were directed to an institution that no longer existed. Section 20(5) of the Coroner’s Act states: (5) A person may apply to the chief coroner to have an inquiry reopened on the grounds that new evidence has arisen or has been discovered after the coroner's report is forwarded to the chief coroner under subsection (4). (6) The chief coroner may direct that the coroner reconsider the matter if the chief coroner considers that the evidence referred to in subsection (5) (a) is substantial and material to the inquiry, and (b) did not exist at the time of the inquiry or did exist at that time but was not discovered and could not through the exercise of due diligence have been discovered. One option would be for me to make an application to the Chief Coroner to re- open this matter and request the Chief Coroner to hold a Coroner's Inquest.Such an application would include a request that the Chief Coroner revisit the circumstances and make a fresh determination as to whether this was a "detention by a peace officer" or an "in custody" death requiring a mandatory Inquest to be held. It would also provide the Chief Coroner with the information that would enable the Chief Coroner to conclude that the new information and evidence is substantial and material to the inquiry and permit the Chief Coroner to make a discretionary decision under s.18 that an inquest is necessary. However, my first option of making an application to the Chief Coroner to hold a Coroner's Inquest at this time, is not the optimal means to comprehensively deal with the problems raised by the Paul file. Coroner's Inquest not the best option in all of the circumstances: Although holding a Coroner's Inquest would be better than nothing at all, in my view it is not the best option. At the outset, a Coroner’s Inquest would be limited to having the jury "inquire into who the deceased was, and determine how, where and by what means he or she died". 3[3] Such an Inquest is not mandated to determine "why" such a tragedy occurred or, the conduct of the police investigation that followed. In order to fully appreciate the limitations of a Coroner's Inquest in similar circumstances, it is relevant to consider and briefly discuss some recent and ongoing Saskatchewan experiences that are directly on point.

The Saskatchewan incidents:

To date, no less than five incidents over the last 13 years have recently come to light involving four deaths and one near death of aboriginal or Metis men in the Saskatoon area. To understand the significance of these events to the Paul case considerations, a brief historical analysis would be of assistance. On 29 November 1990 a 17 year old Neil Stonechild was found frozen to death in a remote field on the outskirts of Saskatoon in –28 C temperatures. His family alleged foul play by police. A police investigation concluded in 1991 ruling his death as accidental. No inquiry into his death was called at that time. Ten years later, on 19 January 2000, 53-year old Lloyd Dustyhorn was found frozen to death in Saskatoon. He had been taken into police custody the night before for public intoxication. Darrell Night alleged that nine days later, on 28 January 2000 police officers picked him up for no reason and drove him to the outskirts of Saskatoon in –22 C weather, wearing only a jean jacket and summer shoes and left him there. He survived his ordeal to later tell the story that resulted in a subsequent investigation into other similar incidents. 3[3] See S 27(1) Coroners ActThe next day, 29 January 2000 Rodney Naistus, 25, was found frozen to death without a shirt in the same area where Night had been abandoned the day before, an industrial area near the Q.E. power station in Saskatoon. A few days later, on 3 February 2000 Lawrence Wegner, 30 was found frozen to death wearing only a T-shirt, jeans and socks, near the same power station in Saskatoon. The next day, on 4 February 2000, Darrell Night came forward to allege that police officers had "kicked him out of a police cruiser" the previous week, 28 January. Saskatoon Police Chief, Dave Scott ordered an investigation the same day. On 10 February 2000 two Saskatoon police officers, Hatchen and Munson were suspended with pay after they admitted to picking up Night and driving him to the outskirts of town. On 16 February 2000, Chief Scott requested the province to appoint RCMP investigators and that request was granted. It is important to note that this apparent practice of removing individuals from a location within the city to remote areas outside the city are referred to in Saskatchewan as "starlight tours". A similar practice in British Columbia, as in this case, is referred to as "breaching outside the area". After the conclusion of the RCMP investigation into Night’s allegations, on 10 April the two Saskatoon police officers, Hatchen and Munson were charged with unlawful confinement and assault. They were ultimately convicted and sentenced to 8 months jail. Both conviction and sentence were upheld on appeal. It must be remembered that this sentence was for an incident where the victim did not die. Of particular significance to my deliberations is the fact that a Coroner's Inquest was held into each of the deaths of Lloyd Dustyhorn, Rodney Naistus and Lawrence Wegner between May 2001 and February 2002. To my understanding, the First Nations and Metis communities were dissatisfied with the process under their Coroner's Act because the inquests did not answer two of the most fundamental questions – in effect, "why did this happen?" and "was race an issue?". Apparently as a result of the aboriginal community's dissatisfaction with the Coroner's Act process and the unresolved facts of the Stonechild case (1990), on 20 February 2003 Saskatchewan’s Justice Minister, Eric Cline called an inquiry into the death of Neil Stonechild, appointing Mr. Justice David Wright as Commissioner of the inquiry. It is important for the purposes of my Reasons to note that among the terms of reference given to the Commissioner was that he "will have the responsibility to inquire into any and all aspects of thecircumstances that resulted in the death of Neil Stonechild, and the conduct of the investigation into the death of Neil Stonechild…." That inquiry commenced on 8 September 2003 and is currently ongoing.

2. A Public Inquiry under the Inquiry Act

Having outlined my concerns with the limitations of proceeding with the Paul case under the British Columbia Coroner’s Act process, and having outlined what Saskatchewan officials ultimately decided to do, I am of the view that that the public interest dictates that I should recommend to the Attorney General that he order a Public Inquiry into the Paul matter, pursuant to my mandate under S.50(3)(f) of the Police Act.

It must be remembered that Mr. Paul died in 1998. Mr. Stonechild died in 1990, nearly 13 years ago. Therefore, the passage of time alone does not prohibit the calling of a Public Inquiry at this stage.

A Public Inquiry has a much broader scope than a Coroner's Inquest. It can inter alia look into the way certain police practices and policies are conducted and make recommendations for province-wide application, not just one police force. A Commissioner appointed under the Inquiry Act has much wider powers including the power to summon witnesses, enforce the summons and punish for contempt, and report the findings to the Lieutenant Governor in Council. By contrast, although Commission counsel conducting a Public Hearing under the Police Act has the power to summons certain witnesses, counsel has no power to compel the most important witnesses, ie. the Respondent police officers, to testify.

Under the Police Act, the Police Complaint Commissioner has the power to: 50(3)(f) make recommendations to the Attorney General for a public inquiry under the Inquiry Act if there are reasonable grounds to believe that: 50(3)(f)(i) the issues in respect of which the inquiry is recommended are so serious or so widespread that an inquiry is necessary in the public interest; 50(3)(f)(ii) an investigation conducted under this Part, even if followed by a public hearing, would be too limited in scope, and 50(3)(f)(iii) powers granted under the Inquiry Act are needed. In my respectful view, the issues in the Paul case are so serious that an inquiry is necessary in the public interest, and an Inquiry under the Inquiry Act at this late date is best suited to arrive at the truth and make recommendations for future conduct. Those recommendations would not necessarily be limited to the policiesand practices of the Vancouver Police Department, but may have province-wide or even country-wide benefits.

It must be noted that although I have the power to arrange for a Public Hearing under the Police Act, I do not have the power to order a Public Inquiry under the Police Act. I merely have the power to recommend such a Public Inquiry to the Attorney General if, in my view, the preconditions listed above are present. In my respectful view, this is the preferred option for resolving this outstanding issue. Both the Coroner and the Attorney General have ongoing jurisdiction to deal with the matter without risking further legal challenges to their right to call either a Coroner's Inquest, or an Inquiry. As I mentioned earlier, at this late date, given all that has happened in the interim, a decision by me to call a Public Hearing under the Police Act, is undoubtedly going to be challenged, result in further delays and, if those challenges are successful, may ultimately result in no public airing of the circumstances of Mr. Paul's death being held.

The Attorney General also has jurisdiction to order that an Inquest be held pursuant to s. 23(3) of the Coroner's Act in certain situations. Accordingly, I propose to provide as soon as practicable a copy of relevant materials directly to the Attorney General for his consideration with the strong recommendation that he order a Public Inquiry.

CONCLUSION:

For all of the above reasons, I have reluctantly concluded that although I have deemed it in the public interest to re-open the file and have it further investigated, that it would in all of the circumstances not be in the public interest for me at this late date to order a Public Hearing under the provisions of the Police Act. Instead, I have concluded that it is much more likely that the public interest would be best served by providing the Chief Coroner and the Attorney General with the results of our investigation, the new evidence that came to light, along with documentation and video evidence that became available only after the decision by the Coroner not to hold a Coroner’s Inquest. It is my sincere hope that the Chief Coroner and the Attorney General who each have ongoing jurisdiction to deal with this matter under various statutes will be persuaded by the evidence to conduct either a Coroner's Inquest or a Public Inquiry. For the reasons given, of those two options, a full Public Inquiry under the Inquiry Act is preferable and recommended.

Dirk Ryneveld, Q.C.
Police Complaint Commissioner
Victoria, B.C.
16 January, 2004
Return to Commissioner's Reasons

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News and Comment
by Tehaliwaskenhas - Bob Kennedy
Copyright
Turtle Island Native Network
http://www.turtleisland.org

June 24, 2003 - BC's Police Complaint Commissioner has agreed to review the case of a Mi'kmaq man, 40 year old Frank Paul who died in a Vancouver alley five years ago after being left there by city police, who had earlier taken him into custody.

Police complaint commissioner Dirk Ryneveld released a copy of a police videotape depicting the last day in the life of Frank Joseph Paul, the New Brunswick Mi'Kmaq man who died in a Vancouver East End alley in the early morning hours of December 6, 1998.

A news release from the Police Complaint Commissioner said, "After being removed from the Vancouver Police jail in rain-soaked clothing, Paul was placed in an alley by a member of the Vancouver Police Department. He died shortly afterwards of hypothermia. No public hearing, inquest or public inquiry was held regarding this matter. Paul's death gained public attention last year during testimony before the legislative special review committee, which was reviewing the police complaint process in British Columbia."

The Police Complaint Commissioner said he determined that the exceptional circumstances of this case warranted re-opening it. He viewed the videotape depicting Paul's physical condition at the time he was brought to the police jail and his apparent inability to care for himself when transported to the alley, where he was later found dead.

Following a request by Paul's family, Ryneveld released an unedited copy of the videotape to the family's counsel. "The family deserves to know the facts concerning Mr. Paul's death, in light of conflicting reports his family had received regarding the circumstances of his death,- - said Ryneveld. The commissioner recently received new and relevant information regarding Paul's death. Once the commissioner's review concludes, " he will determine what further actions are necessary in the public interest."

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OFFICE OF THE POLICE COMPLAINT COMMISSIONER
British Columbia, Canada
For Immediate Release
June 24, 2003
VIDEOTAPE OF FRANK JOSEPH PAUL RELEASED TO FAMILY

VANCOUVER - Police complaint commissioner Dirk Ryneveld has released a copy of a police videotape depicting the last day in the life of Frank Joseph Paul, the New Brunswick Mi'Kmaq man who died in a Vancouver East End alley in the early morning hours of December 6, 1998.

After being removed from the Vancouver Police jail in rain-soaked clothing, Paul was placed in an alley by a member of the Vancouver Police Department. He died shortly afterwards of hypothermia. No public hearing, inquest or public inquiry was held regarding this matter. Paul's death gained public attention last year during testimony before the legislative special review committee, which was reviewing the police complaint process in British Columbia.

A record of those proceedings is accessible through the Hansard government website, at http://www.legis.gov.bc.ca/cmt/37thparl/session-3/pcp/index.htm online.

Ryneveld, who was appointed police complaint commissioner in February, determined that the exceptional circumstances of this case warranted re-opening it. He viewed the videotape depicting Paul's physical condition at the time he was brought to the police jail and his apparent inability to care for himself when transported to the alley, where he was later found dead.

Following a request by Paul's family, Ryneveld released an unedited copy of the videotape to the family's counsel.

"The family deserves to know the facts concerning Mr. Paul's death, in light of conflicting reports his family had received regarding the circumstances of his death," said Ryneveld.

The commissioner recently received new and relevant information regarding Paul's death. Once the commissioner's review concludes, he will determine what further actions are necessary in the public interest.
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Contact: Dirk Ryneveld,
Police Complaint Commissioner
604-660-2385
Vancouver
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News and Comment
by Tehaliwaskenhas - Bob Kennedy
Copyright
Turtle Island Native Network
http://www.turtleisland.org

June 15th, 2003 - A Vancouver, BC lawyer has been hired by the Mi'kmaq family of a Big Cove First Nation man who died of exposure in an East Vancouver alley five years ago, where police left him, shortly after they had arrested him for being drunk. He died during or soon after his involvement with the Vancouver city police department.

The family of 47 year old Frank Paul has hired Steven Kelliher to fight for a public inquiry, to find out after all this time, what really happened.

Some of the circumstances surrounding Mr. Paul's death became public when, on April 15th of last year, during provincial hearings reviewing BC's police complaints process, human rights lawyer Dana Urban testified about the Vancouver police and their treatment of Frank Paul," . . .a Mi'kmaq first nations man from New Brunswick who was a long-term resident of the East Hastings area of Vancouver. This man died needlessly on the evening of December 5, 1998, or in the early morning hours of December 6. He was a drunk. He was unemployed. He was homeless. He had crippled hands and crippled feet. Though he had little, perhaps, to offer our society, he was, in fact, a human being."

The lawyer, who had worked for the Office of the Police Complaints Commissioner OPCC, said the case haunted him ever since he left the commission in disgust.

A regional coroner reported that Mr. Paul died of hypothermia and that his blood alcohol content at the time was between 0.39 and 0.40. She concluded based only on information that was provided to her at that time, largely by the police - As a result of a series of non-medical judgments and lack of clear policy, this individual was released into inclement weather.

"Mr. Paul did not have the ability to get himself to a place where he would be protected from the weather. Persons who are obviously at risk should be protected and assisted to a safe environment upon their release from custody."

During his testimony before the Special Committee conducting the review of the OPCC, Mr. Urban explained that Bill MacDonald, senior investigator of the commission did a very thorough analysis and pointed out numerous discrepancies in the statements of police officers. He identified other areas of investigation and in August 2000 - -he strongly recommended to the commissioner a public hearing."

The problem is that the commissioner chose not to pursue it.

Looking at what Dana Urban told the Special Committee about the police reports you can get a better idea of what transpired five years ago. Two Vancouver city police officers were working uniformed patrol in an unmarked police car. Urban points out these officers were doing their job . . . doing the right thing, to protect Frank Paul after they found him. The report says, "At approximately 2001 hours we observed an intoxicated male sleeping on the south side of East Hastings. After checking this male, now known to be another person, a second male was observed lying on an empty vegetable stand on the west side of the 400 block. The undersigned approached the male, who was intoxicated and lying on his back. The male identified himself as Frank Paul but was unable to answer any other questions. Mr. Paul's speech was slurred and incoherent. He smelled of what the undersigned believed to be rice wine. Paul was unable to sit up or walk." Given his apparent inability to care for himself, Paul was arrested. A police wagon was called to pick him up. Paul had to be carried to the wagon, as he was unable to get there on his own. The wagon left with Paul.

The paddy wagon driver said he was called for a pickup, and he loaded Mr. Paul into the paddy wagon and took him to jail. He said he took him to his sergeant, and the sergeant said he wasn't drunk and to just breach him outside the area - dump him, in other words; dump this human being. The paddy wagon driver says that he took Mr. Paul - not how or anything - in the paddy wagon to the detox centre to drop off others, but because the detox centre wouldn't take him, due to past violent behaviour, he took him to an isolated alley. He says he took him behind the detox centre, in this alleyway, that Mr. Paul was mobile and that he helped him put his clothes on and his shoes onto his feet and helped him walk across the gravel into this little area in the alleyway where it was apparently environmentally fine. He opined that Mr. Paul's attire was safe for the weather.

The sergeant at the police station where Frank Paul had been taken, stated in his statements to the police investigators that he made observations that this man was not drunk. He based those observations on comparing what Mr. Paul looked like earlier that evening, when he had been released from those very same cells - all of which subsequently comes on video. He says that what he saw that night was that Mr. Paul was in the same condition as when he had been released hours before, that he was able to walk, talk and care for himself. That's why he felt he did not have the right to retain him in custody. He said he had a conversation with Mr. Paul. "This, of course, if nothing else, is in direct contradiction to the two officers that found Mr. Paul in the first place and sought to protect him."

Frank Paul should have been kept at the police station, rather than being put into a paddy wagon. A couple of hours later, ironically, the same original police officers who tried to protect him are the ones who found him soaking wet and dead, his clothes either off or askew, with his shoes six feet from him. "At approximately 0250 hours we were dispatched to a sudden death in the rear of 336 1st Avenue. Upon arrival, the undersigned recognized the deceased as Frank Paul."

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AFN ANNUAL GENERAL ASSEMBLY
Resolution no. 16H/2002
July 16, 17 & 18, 2002
Kahnawake, Quebec

SUBJECT:
INDEPENDENT INQUIRY
INTO WRONGFUL DEATH OF FRANK PAUL

MOVER: Chief Robert Levi, Big Cove FN, NB

SECONDER: Chief John Martin, Micmacs of Gesgapegiag, QB

DECISION: Carried see resolution # 16/2002

WHEREAS Frank Paul, a member of the Big Cove First Nation, died after release from detention by the Vancouver Police Service;

WHEREAS an internal investigation was conducted the Police Complaints Commission in respect of this matter;

WHEREAS the evidence indicates that the conduct of the police contributed to the death of Mr. Paul;

WHEREAS the results of the internal investigation have not adequately addressed the evidence which indicates a different conclusion;

THEREFORE BE IT RESOLVED that the Chiefs in Assembly support members of the family of Frank Paul and the Big Cove First Nation in their request for an independent inquiry into the wrongful death of Frank Paul.

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BACKGROUND INFORMATION

"A human life was needlessly lost, racial prejudice or indifference was likely involved . . ." "Surely, Frank Paul, aged 47, a first nations person of the downtown east side, deserved at least the same consideration as a pit bull."

"What do we have? We have a man who didn't make a movement, whose clothes were soaking wet, being dumped in the middle of nowhere in 2 degrees Celsius weather."

SPECIAL COMMITTEE
TO REVIEW THE POLICE COMPLAINT PROCESS
IN BRITISH COLUMBIA


Monday, April 15, 2002
2:30 p.m.
Douglas Fir Committee Room
Parliament Buildings, Victoria

J. Nuraney (Chair): Good afternoon, members. I would like to call the meeting to order.

As you know, we have today a submission from Dana Urban. Just for the record and as you know, Mr. Urban, we had some concerns that were brought to us in one of our submissions some time ago about the office of the police complaint commissioner. The summons that went out to you was to elaborate a little bit more on some of the cases that were brought to light. I thank you for coming and joining us this afternoon, and I would like you to now make your presentation. Thank you.

Testimony of Witnesses

D. Urban: Thank you, Mr. Chair and members of the committee. Due to a long trial I've been involved in, I have been pressed for time. Though I sat down and made some notes on points I wished to cover, I haven't had the time to read my notes to see if they made any sense. Because of that and because of the fact that I'm sitting down and I'm always used to standing up when I speak in court, I ask for your patience as I move through this. [1500]

As stated to Mr. Chair, I am here because of being issued and served a summons last week to appear before you. I have read the transcripts of many of those that have come before me on prior occasions, including the flowery words of the commissioner himself regarding his independence, impartiality, openness and the transparency of his operation.

In particular, because of the words I have read in Hansard of Mr. Adie, who appeared last week, and because of the press release subsequently issued by the commissioner discounting Mr. Adie's assertions, I have, as well, brought with me binders of some materials I have that may assist you in determining whether or not Mr. Adie was misinformed or a disgruntled former employee.

I'm also here prepared to speak to you and present these documents to you after receiving a copy of the commissioner's letter to you consenting to my appearing in this capacity before you. As well, I have received legal advice from a number of lawyers about speaking to you. I have received advice from a very senior bencher of the Law Society of B.C. I have perused various provisions of government laws regarding my ability to speak before you. Lastly, I have considered that, truly, my employer during the relevant periods of time was not Don Morrison. My employer was the people of this province.

J. Nuraney (Chair): Mr. Urban, just for the record, would you mind telling us your previous positions and the involvement?

D. Urban: Yes. I'm here presumably because I was brought on in a seconded position temporarily, for an eight-month period of time, to serve as senior legal adviser to the commissioner's office. That period of time was roughly September 2000 through to when I walked out in disgust in May 2001.

In order to amplify on that, allow me to briefly tell you about myself so you can better understand why I am concerned with what I observed while at the police complaint commissioner's office with the process, how the process was implemented and how he did his job. I want you to understand that I am not as Mr. Morrison has pointed the finger to Mr. Adie simply another disgruntled employee who is unhappy because my advice was not accepted.

I direct your attention firstly to the book of documents. Tab 1 is my resume. I don't intend in any way to go through that, but it is there should you wish to have a view later. I'll summarize it by saying that I am a Crown prosecutor, and I have been a prosecutor with the Attorney General's ministry for 15 years. I've been a member of the bar for approximately 25 years. With Crown counsel, I have been and continue to be part of a unit that prosecutes major crimes, mainly murders and other sensitive cases. [1505]

In 1994 and 1995 during the war in Bosnia, I was a senior legal adviser to the United Nations war crimes tribunal in The Hague. My primary responsibility with the tribunal was to lead an investigative and legal team into central Bosnia and investigate alleged atrocities that had been committed and were allegedly continuing to be committed against defenceless Bosnian Muslim civilians in central Bosnia by Croats.

Our team was charged with going in there and attempting to find the survivors and, if the allegations proved to be true, to secure evidence and get that evidence out of Bosnia back to The Hague to analyze and work with it. Additionally, one of my prime responsibilities once back in The Hague, and then going back and forth into Bosnia, was to determine whether or not war crimes had, in fact, been committed by the Croats against the civilian population, to draft appropriate indictments, to appear before the World Court to present a prima facie case in order to secure international arrest warrants against the indicted Croats.

I did draft those indictments, and I did receive the international arrest warrants. Those indictments were the first indictments charging the leaders and this becomes important later when I deal with the Georgia Straight and Mr. Kelliher but I drafted the indictments and got the warrants against the leaders instead of the trigger men. One of the notable leaders is General Tihomir Blaskic, who was the general of the Croatian army that was involved in the atrocities. Subsequently, and largely due to the courage of civilian survivors, he was convicted by the tribunal in the year 2000 and at the time received the highest sentence ever handed out: 45 years.

What was also notable about the indictment is that it also charged Vice-President Dario Kordic for masterminding his plan to wipe out, to ethnically cleanse, [ Page 334 ] the Muslim population of Bosnia and to have the Croats take over and realize the greater Croatian destiny. He incited the people. He gave directions to the army commanders, including Blaskic.

Somewhat ironically, however, when he was convicted in the year 2001, he received only 25 years in prison for that. Perhaps, given what clearly was police involvement in many of the massacres, had there been effective civilian oversight in Bosnia, far fewer people would have been massacred, far fewer raped and far fewer left homeless simply because of the colour of their skin or their ethnic or religious backgrounds.

In short, bigotry, prejudice and human rights are, have always been and continue to be of great import to me. My c.v. will show I have lectured in many, many places to many different, diverse audiences about these matters, about bigotry and prejudice, and have tried to convey that those evils in society are not concepts found in far-off lands but within the hearts and minds of people in our own country.

It is because of my respect for basic human dignity that I went to the office of the police complaint commissioner. I thought wrongfully at the time that I could make a contribution in our society. I had high expectations of accomplishing a lot of good. I failed miserably in my job. I'm ashamed to have my name linked in any way to that of the commissioner. I'm so ashamed that I have not yet had the courage to add to my c.v. the fact that I was there at all. [1510]

Lastly, by way of introduction, unlike Matt Adie, I am not retired. I still work for the people of this province. I'm here with a heavy heart regarding speaking about the inner workings of the police complaint commission. I'm here in fear of my career, in fear for the economic well-being of my family and myself, should I speak out. But I am here, and I will tell you the truth, because I think the public need for the truth is greater than mine as an individual. I have nothing to gain by being here. I have everything to lose except one thing, and that is my own dignity. Nelson Mandela has said that those who stand silent in the face of evil indict themselves. By summoning me here, you have allowed me to not be silent.

In tab 2 I have included the commissioner's press release, which, in my view, ridicules Mr. Adie, stating that he gave you misinformation and suggesting that he came before you because he was unhappy because his advice was not accepted. That is absolute rubbish. Mr. Adie is a most dedicated public servant and a person who, in my lifetime, is one of the few who has such high moral standards.

The commissioner, in his third-to-last paragraph on page 2, states: "I hope in the future more effort will be made to verify allegations before presenting them to the public as truth." Morrison said that. I hope my presence and the few documents I have brought with me today will help you in the verification process Morrison demands and will help you as a committee in your search for the truth. Because of the commissioner's public attack on Mr. Adie's integrity, I will restrict myself to matters raised before you by Mr. Adie.

I note that in today's Province, which I'll refer to later, there is a splendid pictorial article defending the police complaints czar words of praise by people in high places, notably Justice Oppal and Chief Battershill of the Victoria city police department. With respect, they are outsiders looking in. Mr. Adie and myself, and perhaps others, will come forward and tell you what it's like from the inside looking out. Prior to dealing with the specific examples and they are only examples raised before you by Mr. Adie, I wish to give you a very brief overview of my view of the need of the OPCC and its successes and failures.

In my view, there is a great societal need for effective, independent, impartial and unbiased civilian oversight. By using the words "independent, impartial and unbiased," I mean in the real sense, not just flowery words. [1515]

Police officers as a group are nothing less than heroes, in my opinion. They repeatedly put themselves in harm's way to protect us from evils in our society. By and large, they are not only courageous but highly moral individuals, and we require of these individuals to do numerous things that we ourselves are not prepared to do or do not have the courage to do. We place them in dark, isolated and violent situations and require them to deal with people who are dangerous, violent, drunk, on drugs, dishonest or just plain and simply evil.

They are targets for and are vulnerable to unwarranted and untruthful accusations of misconduct. In their dangerous tasks and vulnerable situations, we cannot also forget they are citizens of our country, just like you and I, who have families, dreams, emotions and feelings, and good days and bad. They are deserving of our utmost respect and fairness of process in handling complaints against them. Of that there is no doubt. However, like any other group, there are individuals within police departments who do not deserve the honour or the privilege of being called a police officer. Of that there is also no doubt.

Administrators in police departments have added considerations. They have to deal with labour laws, union contracts and internal office politics. They have to take into consideration potential lawsuits against their officers and their departments for harm coming to people. Additionally, it cannot be forgotten that the police leaders themselves are also police officers.

In my view, the only real, effective mechanism to protect those who have in fact been harmed or mistreated by bad cops, to provide protections to officers and to provide comfort to society as a whole comfort in the sense that these concerns are handled in a manner fair to all is by continuing with legislated civilian oversight of a police complaint process such as what we have in part 9.

The Oppal model is, by and large, a good model that needs some minor legislative tweaking, particularly with regard to procedure. With the right commis- [ Page 335 ] sioner at the helm, it is a substantively fine model. Procedural tweaking, in my view, could save the taxpayers of this province millions of dollars that are now going into the pockets of lawyers who seize upon these procedural uncertainties rightfully in advancing their clients' best interests. In my view, this money could be far better spent educating the police and the public or, if nothing else, simply reducing our deficit. The procedural changes I have in mind will occupy more thought and time, on my regard, and those procedural matters, though not unimportant, are not of the greatest significance today. [1520]

The Oppal model's substantive soundness can be likened to a beautiful piece of architectural work for example, the CN Tower. Looking at a tower such as that from the distance, the tower appears quite imposing a large, functional blob suspended high in the air by a very narrow or skinny concrete support pillar. One can examine that tower from a distance and admire it and look at the cement casings supporting it and, not seeing any cracks or chinks undermining its strength, conclude that there are no problems with the tower. However, it is not solely the visible cement that supports the structure but what we cannot see from a distance, what we cannot see from the outside. The rebar inside the cement is what gives it its ultimate strength. If the rebar is faulty, the tower will collapse, and many who trust in its strength will be harmed.

It is no different when looking at the Oppal OPCC model. The real strength or rebar of that model in civilian oversight, in my view, is simply basic human values that must be possessed by any commissioner, particularly given the tremendous discretion, responsibility and power afforded the commissioner. The rebar is not cold, hard steel but basic things such as honesty, integrity, openness, independence, impartiality, dedication, commitment, a strong work ethic and a respect for other people to name but a few. Without that rebar, the best model of civilian oversight will fail, and those whose rights it was designed to protect will be harmed. In my view, the performance or lack of performance by this commissioner shows little rebar, and this leaves, in my view, only two choices open to this committee: either come up with a new model that is not so heavily dependent upon an individual, or do some serious repair work and put in place someone that has the qualities necessary to perform that task. My suggestion, for your consideration only, of course, is to try the latter approach, as I still have faith in the basic Oppal model.

Now, if I may turn to the heart of Mr. Adie's submission. It is my view that Mr. Adie did not expose all but gave you simply some examples of the lack of rebar in this commissioner. Having received permission recently from the Paul family from New Brunswick, I feel more comfortable speaking about Mr. Adie's first example involving a Mi'kmaq first nations man from New Brunswick who was a long-term resident of the East Hastings area of Vancouver. This man died needlessly on the evening of December 5, 1998, or in the early morning hours of December 6. He was a drunk. He was unemployed. He was homeless. He had crippled hands and crippled feet. Though he had little, perhaps, to offer our society, he was, in fact, a human being.

We live in a Canadian society that cherishes human life and a society where the paramount and most fundamental human right is the right to life. He died during or soon after his involvement with the Vancouver city police department.

To understand his case, we need to start with some simple basics, and I direct your attention to tab 3. I quote from the police code of ethics, paragraph 13.1: "As a member of the community and as a police officer, I recognize that my fundamental duty is to protect lives."

Going on in the second paragraph: "I will faithfully discharge my duties in a just, impartial and reasonable manner, preserving the equality, rights and privileges of all persons, as guaranteed by the Canadian Charter of Rights and Freedoms."

On the next page, each officer takes an oath. I quote a portion of that oath, the last portion: "and that while I continue to hold the office, I will, to the best of my judgment, skill, knowledge and ability, carry out, discharge and perform all the duties of my office faithfully, according to law, so help me God."

"All my duties" include the protection of human life.

There were two officers in this case from the Vancouver city police who on that night that I have referred to recognized their duties to protect human life and lived by their oath none others. Tab 4 contains the statements of these two officers. I will semi-quote and paraphrase the first report without mentioning the names of the officers whose names appear. These two officers were working uniformed patrol in an unmarked police car. The report says:

At approximately 2001 hours we observed an intoxicated male sleeping on the south side of East Hastings. After checking this male, now known to be another person, a second male was observed lying on an empty vegetable stand on the west side of the 400 block. The undersigned approached the male, who was intoxicated and lying on his back. The male identified himself as Frank Paul but was unable to answer any other questions. Mr. Paul's speech was slurred and incoherent. He smelled of what the undersigned believed to be rice wine. Paul was unable to sit up or walk.

Given his apparent inability to care for himself, Paul was arrested. A police wagon was called to pick him up. Paul had to be carried to the wagon, as he was unable to get there on his own. The wagon left with Paul. At approximately 0250 hours we were dispatched to a sudden death in the rear of 336 1st Avenue. Upon arrival, the undersigned recognized the deceased as Frank Paul. It is clear. It's there by you to read. The other officer comes to the same conclusions that Paul couldn't stand, was unable to care for himself and had to be carried to the paddy wagon. There are two police officers, doing their duty, biding by their oath and attempting to protect Mr. Paul. [ Page 336 ]

Tab 5 is the regional coroner's report. I haven't included the whole report; it might be in the office if it's important to you. Anyway, on page 1 she makes some determinations: that Mr. Paul died of hypothermia and that his blood alcohol content at the time was between 0.39 and 0.40. She concludes and it's important to bear in mind that she's making these conclusions based only on information that was provided to her at that time, largely by the police at the bottom of page 6: [1530]

"As a result of a series of non-medical judgments and lack of clear policy, this individual was released into inclement weather. Mr. Paul did not have the ability to get himself to a place where he would be protected from the weather. Persons who are obviously at risk should be protected and assisted to a safe environment upon their release from custody."

She later as is shown in tab 8, which I don't wish to quote from revisits the matter and decides that there would be no review simply because of policy. In her view, policy demands a review if it can be shown that Mr. Paul died in custody, and because she was not satisfied that he was in custody when his heart quit, she was no longer interested.

Because of Mr. Paul's death, the police themselves became the complainants in this case under a form 1, as you're familiar with, and sent the file eventually to the commissioner's office. Bill MacDonald, senior investigator of the commission, took conduct of the file that is now known as OPCC file number 0406. He did an initial review. The full review is there in tab 6. I will not quote from it, but it is worth a read in due course.

He noted in there that the file had originally been sent to Crown counsel, as is accepted policy, to determine whether or not in their view there was sufficient evidence to meet the criminal charge approval standard to lay charges against these officers. It must be remembered that the burden of proof in a criminal prosecution i.e., beyond a reasonable doubt is substantially higher than the burden of proof in part 9 of the Police Act.

In any event, as you will see, Mr. MacDonald did a very thorough analysis and pointed out numerous discrepancies in the statements of the police officers involved other than the two that did their duty. In addition to pointing them out, he identified other areas of investigation. In August 2000 he strongly recommends to the commissioner a public hearing for all the reasons he stated, all the reasons of which are clearly set out in the act with which you're familiar.

I wish to add this about Mr. MacDonald so you understand his work. In reading it, you may come to your own conclusions. In my 25 years of working in the criminal justice system, dealing with at least hundreds of investigators the RCMP, municipal forces, investigators throughout the United States and around the world I could say that though Mr. MacDonald is not a police officer, he clearly is one of the finest investigators I have had the privilege of working with.

The Crown, in their decision-making, relied heavily on what the police had given them, particularly the statements of the paddy wagon driver and the sergeant in the booking-in area of the jail. Their version, though it's set out in other materials in more detail, can be summarized thus. The paddy wagon driver said he was called for a pickup, and he loaded Mr. Paul into the paddy wagon and took him to jail. He said he took him to his sergeant, and the sergeant said he wasn't drunk and to just breach him outside the area dump him, in other words; dump this human being. [1535]

The sergeant stated in his statements to the police investigators that he made observations that this man was not drunk. He based those observations on comparing what Mr. Paul looked like earlier that evening, when he had been released from those very same cells all of which subsequently comes on video. He says that what he saw that night was that Mr. Paul was in the same condition as when he had been released hours before, that he was able to walk, talk and care for himself. That's why he felt he did not have the right to retain him in custody. He said he had a conversation with Mr. Paul. This, of course, if nothing else, is in direct contradiction to the two officers that found Mr. Paul in the first place and sought to protect him.

The paddy wagon driver says that he took Mr. Paul not how or anything in the paddy wagon to the detox centre to drop off others, but because the detox centre wouldn't take him, due to past violent behaviour, he took him to an isolated alley. He says he took him behind the detox centre, in this alleyway, that Mr. Paul was mobile and that he helped him put his clothes on and his shoes onto his feet and helped him walk across the gravel into this little area in the alleyway where it was apparently environmentally fine. He opined that Mr. Paul's attire was safe for the weather. A couple of hours later, ironically, the same original police officers that tried to protect him are the ones that found him soaking wet and dead, his clothes either off or askew, with his shoes six feet from him.

If one just stopped there and said okay, if we accept that, then maybe we don't have a public hearing. However, sometime in September or October, after my arrival at the OPCC, Mr. MacDonald had concerns about that file and he brought it to my attention. MacDonald and I spent a lot of time on this file over the remaining months that I had with the OPCC. I took the file. I read it thoroughly. I read his analysis and recommendations. We developed areas to investigate and started the reinvestigation. One of the points was to get the commissioner's agreement to spend money to retain the services of Dr. Rex Ferris, a world-renowned forensic pathologist, in order to get him to look at the file and give us his opinions about the process and mechanisms of death associated with hypothermia and, further, to take the facts as stated by the non-protecting police witnesses, look at their statements and match them up against science to see if there's any validity in what those officers said. [1540] Tab 7 contains, in the latter part of it, Dr. Ferris's c.v., which speaks for itself. He is a man who has repeatedly been called and recognized as an expert in his field throughout the world. [ Page 337 ] He looked at what we could give him at that time. It is paramount to remember that at the time he was given still photographs. We did not at that time have real-time video. It really is quite amazing, once one considers the video, to see why Dr. Ferris is world-renowned. He says a number of things of import. I wish to quote some. He says, on page 4, starting in the second-last paragraph: "In the case of Frank Paul, it is likely that his fatal hypothermia developed over the course of many hours, and there seems no doubt that he was suffering from hypothermia when he was removed from the jail. It is probably of significance that the duty sergeant expressed the opinion that Mr. Paul was debilitated and suffering from a medical condition and not intoxicated. I understand that while he expressed the opinion that Mr. Paul could not be intoxicated, his movements were similar to that of being intoxicated. "The video photographs" unlike the video itself "show that Mr. Paul was unable to stand and had to be dragged in and out of the elevator. It is my opinion that at the time of his discharge from the police jail, Mr. Paul was totally incapable of caring for himself." On page 5 he goes on and says: "I do not believe that at the time he was left in this alley, Mr. Paul was capable of being walked to the side of the lane. I think it is likely that he was dragged to the wall and then positioned on the ground with his back against the wall. "The position of Mr. Paul's clothing at the time he was found is consistent with his body being dragged, and it is unlikely that Mr. Paul was capable of any significant voluntary movement after he was left in the alley. The clothing he was wearing at the time that he was found appears to be the same as seen in the jail video photographs. There is no evidence that at any time he was wearing the red jacket found beside his body." He goes on a little bit later and says: "Because of the nature of Mr. Paul's condition as demonstrated in the jail video pictures, it is highly unlikely that he was capable of the voluntary movements necessary to engage in reciprocal undressing." He then concludes and says: "In my opinion, Mr. Paul's death could have been prevented if (a) his condition had been medically assessed, including recording of his body temperature when he was brought in at the police jail, and (b) he had not been removed from the police jail and left in an alley, exposed to cold and rain. "In my opinion, at the time Mr. Paul was brought to the police jail he was incapable of taking care of his own safety and was both intoxicated and suffering from hypothermia. " Prior to. J. Nuraney (Chair): Mr. Urban, just a question. This report was ordered by yourself? D. Urban: It was requested by me of the commissioner to spend the money to retain Rex Ferris to have a look at the facts as we then had them. He approved of the expenditure. J. Nuraney (Chair): So the commissioner approved of this expenditure? D. Urban: Yes, but then we start to back-pedal. Prior to Dr. Ferris providing this report, as is usual, he discussed matters with me. I was quite excited about his findings, so I went and spoke with the commissioner and passed on my verbal interpretation of what Dr. Ferris said. It struck me as odd that the commissioner was noticeably disinterested and made, at that time, a negative personal comment about Dr. Ferris. [1545] I asked Mr. Morrison at that time not to prejudge things and to allow me to attempt to get Dr. Ferris to come to Vancouver, deliver his report, answer questions and fill in the detail of the skeleton of his report with a verbal presentation. The commissioner agreed. Those arrangements were made, and Dr. Ferris came to our office. We went into the boardroom. Many of you may know that right at the end of that boardroom is a doorway that opens into the commissioner's office. There's MacDonald, myself, the commissioner and Dr. Ferris, who was kind enough to come. Dr. Ferris started putting more meat on those bones of what he really meant by certain words. The bottom line, in his view, was that the police were not telling the truth. It could not have happened the way they say it happened. The moment Dr. Ferris cut to the chase and came to the bottom line, something noticeable happened. The commissioner got up and rudely walked out of that boardroom into his office and shut the door, leaving Mr. MacDonald and me to thank Dr. Ferris for coming and send him on his way. I was displeased by that rudeness, and I immediately went into the commissioner's office. I was shocked to see that he was doing nothing in there. He was doing something that was absolutely, totally non work related. My memory is that he was doing something that he often did in that office, and that was to sit at his computer and play computer solitaire. I tried to speak to him about the import of the Paul case, and he was totally disinterested and snorted and grunted and, with his hand, waved me out of there, as was not uncommon. Mr. MacDonald and I, however, continued on trying to find bits and pieces, including finding out that the conversation that the paddy wagon driver says that he had with the detox centre about not allowing Mr. Paul in there because of his past violence appears to be at odds with what people from the detox centre have to say about Mr. Paul. That's why one has public hearings: to determine truth.

Most importantly, the one piece of evidence that became critical in everything was the video. To the Vancouver city police's credit, they did not destroy that video. They kept it in safekeeping and turned it over to Mr. MacDonald. One of the problems with the still photos that we were looking at and that Dr. Ferris was looking at is that that's what they are. They're still. They're showing Mr. Paul here, still; there, still. Everywhere he's still in that frozen moment of time. What the photographs do not show is motion. When you're [ Page 338 ] dealing with intoxication and hypothermia; whether or not someone can care for themselves; and whether or not the sergeant and the paddy wagon officer were mistaken or not telling the truth, the video was critical.

Mr. MacDonald took it out to the RCMP forensic crime lab, and their experts put together all the different cameras that show different areas in real time. Now we can add motion, the third dimension. [1550]

MacDonald and I watched that video. This case became crystal-clear. The first part of the video put together was Mr. Paul's release earlier that evening. What do you see? You see what you should see. You should see a man who's crippled, who is disabled, who can look after himself. You can see him being treated with kindness by the jail people someone offering him a coffee, being nice to him. That's what that video shows. It also shows what the sergeant said that he was the same as later, when he told the paddy wagon officer to go dump him like a bag of garbage outside of the area.

What does it show? It graphically shows the paddy wagon coming in and Mr. Paul being taken out of the paddy wagon, right onto the cement, spread-eagled, with his hands back, and being dragged, like a sack of garbage or a carcass, all the way down the hallway to the elevator, leaving a clear, definite, distinct, unmistakable wet mark far better than a janitor could do over that area. Nowhere to that elevator does Mr. Paul move not a blink of an eye, not a finger, nothing. The button is pressed. He's taken up the elevator the same.

The door opens to the sergeant's booking-in area, and what do you see? They don't even take him out of that elevator. He doesn't move in that elevator. The sergeant goes in briefly. I don't know when this conversation took place or how he could have assessed an inert object and there's certainly no movement, even if he was alive at that point in time.

Now that it's all happened, you shake your head when you see, on two occasions twice the nurse that is on duty walk right past that open elevator. No inquiry is made of her of this man, and not one police officer said, "Hey, nurse; can you come here for a second and have a look at this man?" nothing. Instead, what you see is directions being given, the paddy wagon officer getting back in the elevator with Mr. Paul, the door closing, reopening on the paddy bay window, or whatever it's called, and the same thing.

This man is being dragged out by his feet, with his pants being pulled down on his buttocks area, exposing the skin that Dr. Ferris was talking about, the guard helping with the arm limbs, therefore bringing the clothing up, very similar to what we see in many rape cases, homicide-rape cases. These are things we looked for, and that's what we saw.

That's how the two officers that did their duty found Mr. Paul. We were excited about that. The commissioner was not excited. To the day I left in May of 2001, he did not and refused to sit down and watch that video.

What do we have? We have a man who didn't make a movement, whose clothes were soaking wet, being dumped in the middle of nowhere in 2 degrees Celsius weather. The power of the video is a corroboration of what Dr. Ferris said, both about the medical condition and about his view as to whether or not it was physically possible for Mr. Paul to have done what those policemen said he did. [1555]

There's much more evidence in that file, but I don't remember it all.

In tab 9, I wrote a letter. This is not the first time I did something. I had excuse me, I attempted to have many oral conversations with the commissioner, always to be cut short, on the Paul case. I couldn't figure out why the Paul case. What was the problem here? In any event, he went on holidays. I drafted a letter on this file, where I spent a great deal of time summarizing the facts as I then knew them facts always change and summarizing all the processes that took place and Dr. Ferris's opinions.

I spent many hours researching and collecting all the law in this area, including many cases of the Supreme Court of Canada, duties of police officers, decisions of our Court of Appeal, etc. I put all that together with a recommendation that, given the new evidence, at the very least this office should be sending the file back to Crown counsel to revisit and determine whether or not they now felt they could meet their criminal charge approval for charges of manslaughter, criminal negligence causing death or, at the very least, failing to provide Mr. Paul with the necessities of life.

Many months later eight or nine after I left, the Crown, for whatever reasons and without articulating why, chose, as is their right, to determine that still it did not meet charge approval standard.

My letter is there for your reading. Those were my thoughts at the time, and I doubt that they have changed. Subsequent investigation, as shown in tab 10, indicates that MacDonald was further able to determine that there was room at the inn that night. It wasn't even a case that the jail was overcrowded. When Morrison returned from holidays in January, I again tried to speak to him about this case, and again he continued his disinterest.

In tab 12 Bill MacDonald did another memo to me. Everyone else in the office had not given up on Paul. In his memo of January 25, 2001, what is of import, I think, is the top paragraph on page 2. This is a real problem that you have to deal with as a committee, especially in who the commissioner is. He says: "On January 24, 2001, the writer received a telephone call from Brian Solomon, an elected council member of the Big Cove band council." That's in New Brunswick. "Solomon advised that he had been in the office when the call had come in from the police regarding the death of Frank Joseph Paul." So the police called. "Solomon advised the police informed him that Frank Joseph Paul had frozen to death in Vancouver." Two paragraphs down: "Solomon stated that no one had been told by the police that Paul had been in police custody shortly before his death." [1600]

That's significant. No one told his family how Frank died, other than that he froze to death. These people in [ Page 339 ] New Brunswick would not have known of their rights to be complainants under this act. The Vancouver city police, by signing the form 1 and notifying the next of kin as they did, were in law allowed to become the surrogate or de facto complainant for Mr. Paul in this case. There was no one in the Paul family or the tribal council who was provided with any information that in any way would enable them to make any informed inquiry or decision about invoking the complaints process. They had no information of police involvement.

In law we often hear these words: "Not only must justice be done, but it must be seen to be done." For the Paul family and the first nations of the Big Cove band in New Brunswick, I think we must also add to that the phrase, "Justice cannot be seen to have been done if it cannot be seen at all," as in this case.

Don Morrison had the power, given the potential lawsuit by the Paul family if they ever learned about what had happened, to have this case investigated not by the Vancouver city police but by an external and more independent police agency. He had that power, and he knew he had that power, and he chose not to use that power.

By a copy of this memo, Don Morrison knew if he didn't know it before that this family had not been provided with any information about the death process in this case. He didn't pick up the phone and dial the numbers that are in this memo and ask to speak to the Chief or to the Paul family. He just kept his mouth shut. He didn't advise these people what their rights were. I repeat: justice cannot be seen to be done if it cannot be seen.

Every person in our office, excluding the commissioner, felt strongly about this case and that this case was a public-hearing case. Matt Adie, in tab 13, as his swan song, as he left on early retirement. What did he choose, of all the things that bothered him in that office? What subject matter did he choose to leave as a lasting thing with the commissioner? [1605]

All I have is a copy of the draft, but I understand that the final is not substantively different. Matt Adie says tab 13, first page amongst other things, that to him this file is extremely important on two grounds.

"The first is that it meets the criteria set out in section 60(5) for the arranging of a public hearing by the commissioner: in particular, section 60(5)(a), the seriousness of the complaint it can reasonably be alleged that two police officers deliberately took actions that directly led to the death of a man through hypothermia; section (5)(b), the seriousness of the harm alleged to have been suffered by the complainant death; section (5)(d)(ii), the disciplinary or corrective measures proposed are inappropriate or inadequate."

The one received a two-day suspension for discreditable conduct, and the other received a one-day suspension for neglect of duty three days in total for the life of a man. I'm not even sure if that was suspension without pay. Mr. Adie goes on and says:

"The second is that if known, this file would, I believe, provoke criticism from the general public and outrage from the native community. Please read the article from the Saturday Night magazine of May 13, 2000, which is in the file. It deals with the alleged treatment of native people by the Saskatoon police department. Could this office withstand such a review on this matter?"

That's the question that he leaves. As I stated earlier, I left the OPCC in May in disgust. Though I have never met Mr. Paul, and I do not know his family, his death has haunted me since I have left. Tab 14 contains a series of my letters. Because I've enclosed the bad with the good, you will see that I am accused of wrongfully attempting, given that I am no longer counsel, to improperly influence the commissioner in his sacred duty of acting impartially and independently.

There are some quotes I would like to put on record, though all is there for you to review. On August 15, 2001 which, I understand, is the only letter of mine, along with other missing documents in that file, that has not been shredded.

J. Nuraney (Chair): Sorry. Did you say "shredded"?

D. Urban: Shredded.

J. Nuraney (Chair): Are you suggesting that documents from the file were shredded?

D. Urban: My information is - and others, hopefully, coming here may well confirm - that of tab 14, of all these letters that I have written, the only letter unshredded is the first letter of August 15, 2001. There are other opinions, of which I am advised by those who know, that there are other documents that have been either shredded or electronically removed from the computer. [1610] If I may place on the record some quotes, beginning firstly with my August 15, 2001, letter to Mr. Morrison. I say:

"This is to confirm that I was intimately involved in your office's conduct of this matter and its reinvestigation. In that regard, you will recall that I had written a lengthy memo regarding this matter. Given that Crown counsel has now decided not to proceed, I am writing you to urge you to now consider exercising your discretion to hold a public hearing. You and I, as trial lawyers, would surely not have difficulty presenting a strong case in this regard. A human life was needlessly lost, racial prejudice or indifference was likely involved, and if the public or the first nations peoples found out about this, the police conduct and the police complaint process may well be put under a magnifying glass.

"In my view, this is the type of case that would clearly demonstrate the reasons behind the Legislature enacting this statute and appointing an independent and impartial civilian overseer."

On August 23, not having heard anything, I wrote again. I asked him to look at Ferris's report and to look at the video. [ Page 340 ] August 27. I now receive what I briefly alluded to, the threat letter from then counsel Kevin Gillett, on behalf of the commissioner, where he says: "However, given that you have now resumed your position with the Crown and are no longer acting for the commissioner, he has expressed a wish that you not urge him to adopt any particular course of action in any file, particularly on Crown letterhead. I hope you will understand his concern in this regard." That did upset me, which resulted in a lengthy letter by me of August 31 to Mr. Gillett, where I wished to correct him. On page 2, I begin by saying: "You incorrectly state that the commissioner was well aware of my views as counsel regarding Mr. Paul, as they 'were clearly expressed at that time' - when I was counsel for the OPCC. While I agree that my views were clearly expressed while at the OPCC, I have no confidence that the commissioner was or is aware of them or the factual basis upon which those views were premised. In fact, the commissioner repeatedly expressed little or no interest in this matter from the time that I first became involved until I left the OPCC at the end of May of this year." Going down a few sentences:

"I recall on a number of occasions trying to discuss this matter with the commissioner, and he refused by walking away, saying that he did not want to discuss it then, or by quickly changing the subject. I recall an occasion in December 2000 or January 2001 - when he returned from one of his trips - when he came into my office to see what I was doing for lunch. I asked him to have a seat, and when he did so, I asked him if he had read my nine-page memo to him, with attachments, dated December 16-regarding this matter." I just wish to correct that. Now that I've looked at the documents, it's the one of December 22 that I've earlier referred to.

"He said that he had not. I handed him my copy, and he glanced at the first page for a few seconds and threw it back on my desk. He told me that the memo was too long and that 'if I wanted him to read something, I should learn to do one-page memos or two at the most' and walked out of my office, leaving the memo on my desk." I go on. I say:

"On at least one other occasion I specifically asked him to watch the 'bloody video-.' He snorted or grunted and flipped his hand in a backward 'poo-poo' motion and walked out of my office. I was not then, nor at any time, given the opportunity to 'clearly express' my views as you have stated." On page 3, the last paragraph, I state:

"So I suppose, amongst other things, my letters, of which the commissioner now complains, were simply my attempt to get him to just take some of the time that he spends playing solitaire on his office computer; some of the time that he spends meeting with police chiefs and/or their lawyers, internal investigators, police union officials, alone, behind closed doors, at luncheons or other social functions; some of the time that he spends working on speeches to be delivered around the globe; some of the time he spends organizing his social calendars with the pillars of society; and simply read the file, view the video and impartially and fairly and independently make a decision based on all the factors set out in section 60(5). That is what I am trying to persuade him to do; nothing more, nothing less. That is his sworn duty; nothing more, nothing less." [1615]

Lastly, to quote the last sentence in the third-last paragraph, I state: "Without the press or the first nations or the family knowing about Mr. Paul and the evidence gathered in the OPCC investigation, only the commissioner is left to be 'the guardian of the guardians.'"

J. Nuraney (Chair): Mr. Urban, just a quick question. Why, in your opinion, was he disinterested?

D. Urban: There is nothing that he ever told me - or told others that has been shared with me - as to why he was so disinterested. I have my opinions, but that's all they are. It would be speculation. I think that if you accept as fact - which is up to you - that Mr. Adie and I are speaking the truth, then it's for Mr. Morrison to tell you why he was disinterested. In my letters, without quoting more-. J. Nuraney (Chair): I'm sorry. Ken, you had a question. K. Johnston: Yeah. If I could jump in here, Mr. Urban. It's something that's probably not that relevant, but I'm just wondering. Is it normal procedure - for example, in the case of you writing the two letters of August 23 and 15 to the commissioner - for somebody other than himself to respond? I was just interested in why he used Kevin Gillett to respond to your letter. You had worked with him and were sending him information. Normally people respond directly. Was there some reason for that? D. Urban: It seems that it was okay for the police to correspond with him in writing or on the telephone or at luncheons or parties, and for other lawyers to correspond directly with the commissioner. My read on that was that the commissioner really did not like to hear what I had to say about that. Therefore, I have been advised by Mr. Gillett that the commissioner instructed him to be the insulator between myself and the commissioner. K. Johnston: It was just a matter that he didn't want to deal with you directly? Was that basically it? D. Urban: That's correct. K. Johnston: Okay. Thank you.

D. Urban: Though I won't quote any more from them, I do refer to them in the bodies of my letters that I have enclosed. I thought it was of great import at the respective times to send to the commissioner, through his counsel, copies of press reports that I thought were highly relevant to the Paul case. That was, firstly, the report entitled: "Police Unable to Plead Mistake in Dumping Man, Judge Tells Jury." The next one is on the next page: "Saskatoon Policeman Guilty in Dump- [ Page 341 ] ing Death." Then the last one is the December 8, '01, article where they're talking about the police officers appealing, which is fair enough.

It's important to just take one moment to look at the import of the facts in the Saskatoon case. In the Saskatoon case, when you compare it to what we had in British Columbia, there was no video on that one. You had a first nations person who was taken into custody by the police and thrown into the back of the police car. That first nations person was obnoxious and violent, and the police, dealing with that kind of individual, went and dumped him in bad weather.

If you're soaking wet and can't move, is placing you out in the rain in 2 degrees Celsius weather really any different from what the Saskatoon police did with this man, who was totally able to look after himself, absent the subzero temperatures that he was dumped in, in the middle of nowhere? [1620]

A marked difference is that this is the response of the Saskatchewan justice system, in a case where this man lived. This man didn't die. What has our province's response been to a man that was helpless and is dead - a marked difference? Even this didn't seem to do anything to breathe life into the Paul case. Life went on. Now, I have read today's paper, as I indicated earlier. Mr. Morrison appears to have moved from the misinformation and personal slagging of Mr. Adie to a different position. I quote from the Province newspaper of today's date: "But Morrison told the Province he couldn't see what more could have been accomplished by rehashing only the single incident again. Instead, he said, he'd asked the chief coroner to consider an inquest or the Solicitor General to call for a broader inquiry, but both turned him down."

I find that absolutely astonishing. Neither of these people - the Solicitor General or the chief coroner - has ever had the file. He talks about rehashing. It hasn't been hashed, let alone rehashed.

Why does he think that they ought to do something about the police conduct regarding Mr. Paul? That's why we have part 9 of the legislation. It's his job. All this is, in my view, is a pitiful trying to pass the buck to other people. Mr. Morrison, on his website, in his annual reports and in his testimony in front of this committee, touts his openness and his transparency.

Anthany Dawson's case came and went during the life of the Paul case. There are clear protocols - there were then, and I assume there still are - that if there is to be no public hearing, the reasons of the commissioner are to be published on his website that he talks about all the time.

Anthany Dawson's was published with full reasons as to why he did not proceed in that first nations case. I invite you to look at that website, and unless it appeared yesterday or today, there's not one single reason put on that website about Mr. Paul. Why is that? J. Nuraney (Chair): Mr. Urban, just a matter of clarification. There is this letter here that you have given on file, dated December 19, 2000. It's a letter from the Vancouver regional coroner. So the file did go to the coroner? D. Urban: I'm sorry. What tab, please? J. Nuraney (Chair): Tab 8 - the first letter. D. Urban: Yes. That is the document that supports what I said earlier - that she later revisited the Paul case after her initial report that appeared in tab 5. J. Nuraney (Chair): So, in effect, the file had gone back to the coroner? D. Urban: Not the entire file. She was asked to revisit it as an in-custody case and with some of the new facts. She rightly, I suppose, determined that because her mandate was to deal with in-custodies and Mr. Paul, in her view, was not in-custody, there would not, therefore, be a review by her. [1625]

J. Nuraney (Chair): Thank you. Sorry, come back to the Anthany Dawson case. Was it that it's not on the website? D. Urban: Yes, Anthany Dawson. That family knew what happened, and they had the resources, the will, the money to retain counsel and get this in the public eye. That's very remarkably different than the Paul case. That's why we know about Anthany Dawson. Why is it that we do not know? After all this time, why is that not on the Internet - his reasons? He tells us now what his reasons are, in the newspaper. They're pathetic. Why have my letters been shredded? Why have Mr. MacDonald's opinions on the computer been deleted? Why has his written copy of his opinion been shredded? If what he says and what I say is so wrong, and if this is supposed to be an open and transparent outfit like the commissioner touts, why is that stuff not there? Surely he can explain it and withstand scrutiny by this committee. Don Morrison said in his prior press release that others will come forward - presumably, his subsequent lawyers - as to why he decided to do nothing. His one lawyer, Mr. Gillett, advised me that though he was writing me these letters, he had never ever read the file or viewed the video. I doubt very much he could give much legal counsel to the commissioner on that.

It is my understanding, and presumably it will be verified by other members of the OPCC coming before you, that the Paul file was very uncharacteristically taken from its usual place. Not only were the documents shredded that I referred to, but it was under lock and key away from the general staff and investigators at the OPCC. How is that open and transparent? J. Nuraney (Chair): But the matter did go to the Solicitor General eventually? [ Page 342 ] D. Urban: I am informed that a letter went to the Solicitor General - no file, no video, no legal opinions.

Lastly, regarding Mr. Paul, I say this: the public has now spent millions of dollars, through police departments, through individual officers defending themselves or through the OPCC implementing part 9, with Morrison as the commissioner. In total, in four years there have been nine public hearings ordered. One of those nine wasn't in fact ordered at all by the commissioner but as a right by a respondent. That leaves eight in four years for the commissioner. Some of those aren't anywhere near completion. Some of those have been called, in my view - and I support Mr. Adie in this regard - as a direct result of being driven by the press.

One of the public hearings that was called by the commissioner was the Abbotsford case handed by then ad hoc counsel Steven Kelliher, a noted and well-respected barrister in this province. This public hearing was called in a situation where an ERT team entered a suspect's house not knowing at the time that there were in fact kids there having a birthday party. A family pit bull attacked the police, and the police shot and killed the dog. [1630]

Surely, Frank Paul, aged 47, a first nations person of the downtown east side, deserved at least the same consideration as a pit bull. On the other matters raised by Mr. Adie, I will be far briefer. Collectively speaking, they are but other examples of the diseased rebar that I have alluded to earlier.

The next specific matter of concern to me is not only the lack of support from the commissioner to fulfil his mandate to educate the public about the police complaint process and their rights in that process but his active discouragement against this to the poor, to visible minorities.

Marilyn Whitfield is still a member of the OPCC. She is, in my view, a caring and dedicated public servant. It is her primary responsibility to be in charge of arranging for and attending these community educational sessions. She was repeatedly upset and dismayed, on a regular basis, by the commissioner's interference in her performing that function, which I feel is essential in our society. There's no good in having any rights if you don't know about them. I personally heard him, on one occasion, state words to the effect that it is improper to go to these visible minority groups and provide them their rights, particularly in the east end of Vancouver, because to do so would only encourage false accusations against police officers.

One day, when she was particularly upset and needed support, I inquired as to what was wrong. She feared that an engagement she had arranged on East Hastings with a native group was going to have the thumbs put down on it at a meeting we were just about to enter with the commissioner. I attempted to calm her. I said: "Don't worry about it. We're going to go in there, and we will take the bull by the horns. When that item on the agenda comes up, I am simply going to make an announcement that I am available tonight, and I will be going with Marilyn to East Hastings Street."

That was done and not a word given. The intro was said by the commissioner. Marilyn and I went to this community centre where these poor people, a lot of them drug addicts, a lot of them alcoholics, prepared a meal for us. We had an enjoyable dinner. Marilyn then stood up after dinner to quite a large, receptive audience and gave her presentation of the police complaint process and the basic rights that these people had. Even given the vulnerability of the people that we were dealing with, they were not only most appreciative, but they stayed past the time that was allotted to ask questions. A number of them wouldn't let us go so that they could talk privately, out of the earshot of others.

Mr. Morrison's fears that this kind of activity generates false complaints is hogwash. Even if it did, that's why the office is there: to attempt to protect police officers from false accusations. That's why the commissioner is there: to protect the rights of police officers. The irony is that after all of that, not one person in that community centre lodged any complaint, let alone a false one. [1635] Mr. Morrison's answer to this alleged ambulance chasing is: "Eh! Not a problem. It's on the Internet. Everything you need to know is on the Internet." I've got to ask: why, then, are we spending money and human resources from that office training the police officers when they've got their own budgets and trainers? He does not understand that the people living under cardboard and in stairwells and other places don't have computers. They don't know. In my view, it's a serious flaw in the performance of his mandate to educate all people, whether they're from Shaughnessy, Oak Bay or East Hastings. I beg you to inquire of this issue of Marilyn Whitfield, of Lori Loseth and of Bill MacDonald.

The next issue regarding the concerns of the diseased rebar is the concept of independence and impartiality or the perception of it. Again, I reiterate that they are not just flowery words. They must be real. The commissioner's conduct in this regard has appalled me, basically, from when I first arrived. I raised it with him constantly, as did others within the office. We were embarrassed, as professionals, by this conduct, by him repeatedly going out to parties - Christmas parties, socializing - and his closed-door meetings with police chiefs, closed-door meetings with their lawyers.

Not only did this perception of bias at the very least cause us embarrassment, but it put him, as was told to the commissioner, in a continuous position of being at risk of being compromised in the public eye and compromised in any particular case by potentially being a witness - as he may end up in the Phillips case by the time the dust settles on what went on behind closed doors.

I finally started quitting just talking about it and started putting it in writing. I direct your attention to tab 15 on a file we haven't talked about. If nothing else, if Morrison denies we verbally talked to him, this then [ Page 343 ] starts to speak for itself in writing, if it has not been shredded like other documents. On the bottom of page 2, I quote in my memo to him dated December 11, 2000: "This brings to issue the matters that we have formally discussed regarding shielding and/or protecting you in your position as commissioner to always be 'seen' to be in a position to make independent and impartial decisions as required of you under the act. I feel that you should at no time be involved in any meeting, let alone a behind-closed-door meeting, with police in matters of this nature where there is sensitivity. "In my view, you open yourself up not only to be a potential witness in a case, but that the integrity of the office of the police complaint commissioner can also be attacked. That clearly would not be in either your interest or the public's interest. "In my brief discussions with another lawyer" very well known in this field of law "he is of the view, as well, that you should insulate yourself from this type of contact with police investigators." I see that Mr. Kelliher is here, and we have been going for some time. I am more than prepared to stand down if you will hear me later. Though I've said most of what I have to say, there is more that I think is necessary. I understand that Mr. Kelliher will not be long. Perhaps conveniencing him would be more prudent.
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Mr. Urban, would you like to resume? D. Urban: As I say, I'm used to speaking standing here. This is still throwing me off. I was talking about the perception, if nothing else, of the important words of impartiality and independence and giving some examples of why it's a dangerous thing to do what the commissioner repeatedly does. In tab 16 Matt Adie, given the accusation of misinformation, raised this particular issue as an example. Now, it is interesting to look at the various documents that I have put in here in relation to what he said.

It all starts on this: after extensive work by investigator Bill MacDonald and myself a lot of it at nighttime and in the early morning hours, well outside work hours, without pay. We worked together on computers, mainly in my hotel room, putting the investigation together on what we called the Vancouver Six six police officers of the Vancouver city police that were alleged to have done a number of things, including not being overly forthright in court in a criminal case, which resulted eventually in a judicial state of proceedings on serious drug charges against individuals. The facts of that case really do not matter for our purposes here today other than to deal with the issues of independence and impartiality.

On December 11, after a long meeting and going through all the paperwork and the commissioner considering the criteria under section 60(5), it was decided to hold a public hearing. All the documentation was being prepared for his signature, and while I was doing that, the commissioner was doing other things. The other things include what he does, and that is to usually get someone else to draft him a press release to go along with his public hearing announcement. [1705]

Life goes on. I'm doing other things, and all of a sudden I'm handed a draft press release, as appears on the fourth page. It says: "December 11, 2000 Draft." All that handwriting is mine, of things I was thinking about, having received that. The moment I saw that, it brought back memories of something that I will talk to you about shortly: what I viewed as the betrayal by the commissioner of his former ad hoc counsel, Steven Kelliher, in the press. I'll speak to that, as I say, momentarily. That was in regard to the Hyatt case.

What upset me in this draft, amongst other things, was the middle paragraphs, where he says, as an independent and impartial officer. "In considering whether to hold a public hearing, I read the complete report of this thorough investigation, which was used by a highly respected police chief to decide on disciplinary actions," Morrison said. "My decision to order a public hearing is not an indication that Chief Constable Blythe's handling of the matter was in any way inadequate or improper."

I started to feel the potential of a knife in the back on this matter, which at that time I believed I would be taking into a public courtroom and trying on behalf of the commissioner. When I saw that, I immediately went to him and told him that this was against the oral agreements and protocols that we had all agreed to, that this smacked of the Hyatt press materials and that there were things in there that should not be in there if he was to be independent and impartial. If none of that mattered, the most highly offensive part is when he said that nothing that the chief constable did in the handling of the matter was inadequate or improper.

That's the very heart of the issue; that's why we're going for a public hearing. What happened in that case, from the police perspective and I'm not saying that it's wrong or not is that four of the six officers. Not a single thing happened to them nothing, no internal discipline. That's what the police chief, on his investigation, determined. On the other two officers he found that there were some minor improprieties. The issue of whether or not there was perjury in a criminal courtroom by police officers was not dealt with by way of discipline.

After this press release, I am supposed to walk into a public forum and tell an independent adjudicator: "Well, Dana Urban here, appearing as counsel for the commissioner. We're here because of the factors set out in section 60(5). One of the things that we consider is what penalties, if anything, the discipline authority meted out." I don't want some adjudicator, during the course of the proceedings or if the allegations are proved to be true in the eyes of the adjudicator, to ask me: "Well, what are you doing here? Your own commissioner has told us that we don't need civilian oversight or the police policing themselves here, because the highly respected police chief has done nothing improper or inadequate." [1710]

I asked him to change that document, and he refused. I pressed him on that, and he advised me that the reason why he was not prepared to change it is that he had already spoken about this to other people, including Justice Oppal and including the lawyer for the police chief. I told him that either he changes that or he appoints other counsel to appear on his behalf on the Vancouver Six, because I was having nothing to do with that case. If you flip the page, you'll see what went out on December 13. The only change from what I quoted was that he took out the word "thorough" when referring to the investigation. I'll tell you, members of the committee, I've seen police reports that I don't consider thorough. This one I thought was thorough. Probably the most inoffensive word in there was removed, but we maintained "a highly respected police chief." I was upset.

I was further upset, to the point of resignation, when I was informed a day or two later, after Mr. Morrison had gone off to Asia on his holidays, that it wasn't even Don Morrison that had drafted that press release. I direct your attention to the first three pages of that tab. As you will see, it's got a letterhead of the lawyer for the police chief, complete with fax number, being faxed over to the OPCC the draft. My information is that Mr. Morrison, again contrary to protocols to quit meeting with police chiefs and lawyers in private. [ Page 346 ] Forgetting about that one for a moment, forgetting about what we had orally agreed on, on how press releases were going to be done and how they were going to be approved before they went public, we now have the situation where it is clear that Matt Adie did not have misinformation when he appeared in front of you. We have this fax from that lawyer on that date on their word-processing setup not the OPCC word-processing setup setting out the draft that they sat down and worked on. That, in my view, brings into serious question, if nothing else, the perception of independence and bias, when two parties are going to sit down and work out what we're going to tell the public. J. Nuraney (Chair): Just to clarify it in my mind, Mr. Urban. This document that I have in front of me, which bears the mark. Interjection. J. Nuraney (Chair): Sorry, I'm told that I can't read the names into the record. Anyway, this document that is before us here is a draft of a press release that was drafted by the lawyers that were hired by the police? D. Urban: My information is that the second name that appears on the letterhead was the active lawyer retained by the chief of police on this specific file dealing with the Vancouver Six to represent the interests of his client, the chief, and the police department collectively. This lawyer did not act for any of the six officers named in the public hearing. [1715] My information this is supposedly the corroboration of my information is that after Don Morrison decided to go with the public hearing and when myself and Bill MacDonald were preparing the court public hearing document, he took the liberty to go over to that lawyer's office and meet there with the chief of police and work on this draft, which was subsequently then faxed to the OPCC. Most material parts at least the parts that I found offensive, rightly or wrongly are incorporated in what finally went out. J. Nuraney (Chair): Just for curiosity's sake, I have in front of me here a list of all the press releases that have come out of the police complaint commissioner's office since 1998. This particular press release does not appear on that list. Is there any reason why not? D. Urban: The one of December 13? J. Nuraney (Chair): Yes. This printout is from the website of all the press releases that went out from that office. D. Urban: I have no explanation as to why this one of December 13 is not on there. J. Nuraney (Chair): According to you, it was released. D. Urban: Yes. J. Nuraney (Chair): Good. Thanks.

D. Urban: With respect to this press release and, again, the protocol issue, I felt betrayed at this time. He went on holidays. While he did that, I went and saw a senior life bencher of the Law Society in Vancouver to see if I could go public over these perception issues or, better, whether or not I was at liberty to go to the ombudsman to look into issues of bias and independence or lack thereof. As well, I sought legal counsel in that regard. Reflecting on it and cooling down over Christmas, I then decided to go with the advice given to me, which was practical and good advice that was, to wait for the commissioner to come back off holidays and sit down and demand of him an agreement that we would work immediately towards written protocols, which he would agree to, dealing with press releases, meetings, socializing, that sort of thing. He agreed, in principle, that he would abide by the oral agreements we had not just me, other members of the office and that we would work on these written protocols. But every time after that that one tried to approach him or put it onto an office meeting agenda, it was just given short shrift. Nothing was ever accomplished. In addition to my oral presentations to him, and overhearing the others in the office and concluding that morale within the office, because of this embarrassment and being tarred with the same brush that he was being tarred with i.e., our own integrity and partiality. I started trying corny things with him to get him to understand that it wasn't just Dana Urban and wasn't just Matt Adie and wasn't just everyone else in the office. This really was so simple, and he should see it. On tab 17, just for example. I was tasked, over a short period of time, to interview four lawyers, who had at least ten years' experience each, for a junior legal position that he was thinking about at that time, and seven fresh faces from UVic law school to come in on short-term internship-type programs to do legal work for us. As a result of that, I crafted very simple questions to ask these people about their concept of independence and impartiality and what not. [1720] As a result, firstly, as I have it set out in the tabs here, March 21, 2001, I give to him a two-page document regarding the experienced lawyers. In the first paragraph I clearly set out that this isn't just me. These people have the same perception of independence and impartiality as everyone in this office has been repeatedly telling you. It's not just us. There's four lawyers that don't know you and don't know us that say that. Then right after that, I set out hypothetical questions some of them for each of these students. These are questions that I developed and tried to mark according to certain criteria. It turns out that they're all really bright students, and it's very difficult to choose between them. But of import and I leave it with you are the very basic questions. For example, 18b, their [ Page 347 ] view on education of citizens in a community centres such as Oak Bay, Kerrisdale or East Hastings. That's the question. Their answers are obvious. When I ask questions about the socializing of the commissioner, there's the questions; there's their answers. Out of the mouths of babes to have something that everyone knows, or should know, about perception of bias, except this commissioner. Now, that didn't seem to do anything to progress us any further in stopping him from his secret meetings, his luncheons and his socializing. So on April 12, on tab 18, I wrote him and threatened immediate resignation over this issue. I think it is of import to put on the record the contents of that letter. I state: "Re: Perception protocols. "In early January 2001, immediately after your return from Thailand, we discussed the concerns that I had regarding the content of the press release authorized by you and the circumstances surrounding the preparation and dissemination of the press release and other perception concerns. "At that time I informed you that I had such grave concerns over these issues that I sought bencher and legal advice from more than one very senior and well-respected lawyer. We agreed at our meeting that protocols would be prepared forthwith and signed off by yourself, the deputy and myself concerning not only press releases but other perception concerns that I had relating to social and business meetings, etc. "Three months have now transpired, and you have left on another vacation without these protocols being solidified and assented to. It was on the basis of our agreement that these items would be dealt with quickly that caused me not to resign from my position immediately. "This matter was once again put before you at our most recent staff meeting, but you chose to deal with the topic in such a dismissive and offensive manner that it is difficult to believe that you intend to deal openly and honestly with this issue. I am deeply concerned that we are currently at the same state as we were in December. It is my view that the issues are very clear concerning public perception of independence and impartiality being affected by practices that occur in this office." On the second page I say: "I have also discussed this matter with some members of this office. It is unquestionably the unanimous view of all that protocols forthwith should be implemented and religiously adhered to in order to have any expectation of the public having confidence in this office. Additionally, it is my view that this continued delay in the acceptance of protocols has further undermined morale in this office, and continues to do so." [1725] Then I conclude and say: "After careful consideration it is my view that unless you and the deputy sign the enclosed protocols by May 2, 2001, I have no alternative other than to forthwith resign my position with your office." That letter did spark some action, no matter how pitiful it was. On, I believe, the Wednesday or Thursday of that week, the week of May 2, we finally sat down, and he finally agreed to the protocols, which are so basic, that are set out right after my letter. He wouldn't sign them, but he agreed to them in front of everyone. That was Wednesday or Thursday. Excuse me. It was a Tuesday or a Wednesday, because Thursday and Friday I was in Victoria on the public hearing regarding Maddocks.

On Monday perhaps Tuesday; my memory is Monday of the following week, having just agreed to these protocols, Chief Battershill comes over to Vancouver. There is a closed-door meeting; they go out for lunch together. They come back, and that afternoon is dictated and the following day is sent, as is set out in tab 21, an "atta boy" letter to the chief about the police work and the outcome of the public hearing of Maddocks, picking out the initial investigator on the case for his professionalism in the investigation knowing all along that our office was of the view that the initial investigation by that particular person was far, far from professional. It was the work of another police officer from that police department that in fact was professional and brought the success necessary to that case. So our protocols didn't last long. In regards to the Phillips matter raised by Mr. Adie. There's a number of documents in here relating to it, but time is such that I won't refer to them all. In tab 20. J. Nuraney (Chair): Mr. Urban, just a quick question. Is that a normal practice after a complaint has been dealt with, to write letters of commendation like this? D. Urban: Where warranted it's, I think, an appropriate practice. It's certainly not uncommon. [1730] I directed you to the wrong tab. It's actually tab 19. The Phillips matter. Mr. Adie has told you quite a bit about that, but Mr. Morrison has said he's given you misinformation. You can be the judge for yourself.

While on another holiday, this matter first arose. My involvement in it began, basically, with a letter from the acting commissioner, Matt Adie, dated April 18, 2001. After expressing concern to me that the lawyer for the police chief of the department involved in a very serious matter was wanting to deal directly with the commissioner, he requested orally and, I think, in writing here yeah that I contact that lawyer and advise him of certain things i.e., he's a lawyer, and I'm a lawyer; and the now acting commissioner has directed me on that basis on this matter, the Phillips matter, not to deal directly with the commissioner and to deal through counsel.

I did that, and in my letter to that lawyer I also remind him that I've already told him in the past that just because this is government doesn't mean you can just circumvent the rules. I remind him of my oral conversation that occurred on another case before Christmas. I received no response whatsoever from that lawyer to my letter, nor did the commissioner, upon his return from holidays, ever discuss that letter with me. Matt Adie has told you what has happened in that office. [ Page 348 ]

In tab 22, all I could find in my own documents was the second page of a two-page memo I sent the commissioner about the Phillips matter, expressing my concern that he would entertain speaking on such a serious matter of public interest to the other side in hypotheticals. "Hypothetically, if we did this, hypothetically, what would you do?" etc. Time, I think, has borne out Mr. Adie, given that these are April and May matters. It is of no coincidence, in my view, that the office of the police complaint commissioner did not get rapidly mobile until about six months later when this all of a sudden became front-page news in Vancouver. All of a sudden there was an interest. There was an interest, with all due respect, in April.

Lastly, in going back to rebar the basic principles of morality, honesty, integrity and trustworthiness I wish to briefly refer, in conclusion, to the Hyatt matter, again raised by Mr. Adie. The first document I have is in tab 23, which sets out Mr. Adie's full report that he completed as the observer appointed by the commissioner to observe the Hyatt investigation. He, being the competent individual he is, drafted this lengthy report, setting out, amongst other things, the very serious concerns he had about the investigation by the police of the police. [1735]

The commissioner had this report in his possession. I don't recall exactly when it was, but it was well before I joined the commission. This is dated December 9, 1999. It was sometime in the year 2000, and it was after General Tihomir Blaskic was convicted of multiple war crimes the general I referred to earlier. I can tell you that Don Morrison contacted me about the Blaskic and Kordic indictments in The Hague. In a long conversation, he went through all the problems he was having with the police investigating themselves and playing games and how they had all this video with closeups of police officers even through their shields, you could clearly see who the individual officers were yet they refused or were unable to identify their own police i.e., to make them respondents in a potential public hearing.

He went on and on, but I don't recall the other faults he found in the investigation. He was talking about "time to get tough" and all this with the police. The reason why he was calling was to get my insight into how to go after someone if they're not the trigger man but they're the ones that are in command and in control and, lastly, to see if I could get him a copy of the indictment I had prepared, which had been filed and had gone to trial. I had retained my own copy of that indictment, and I faxed it to him. There is no question he clearly knew that he was going to go command and control against Doern and Jones and that the reason for that was because he had no alternative because he didn't have any of the baton-wielders' names, which had been withheld by the police in their investigation.

When this all went in the ditch in the Supreme Court of British Columbia in front of Mr. Justice Harvey, it was right near the end of August. I started on, like, September 1 whatever the Monday was in September. The Monday after, this went in the ditch and the press got hold of it. As you will recall Mr. Adie telling you, it went in the ditch because Mr. Kelliher had told Justice Harvey, amongst other things, that they were proceeding against Jones and Doern because of improper, uncooperative police investigation. Then he used the offensive words of a "cover-up" by the police of the police conduct. For that reason and other reasons, the case was dismissed. That's been ultimately reversed on appeal and, as I understand it, is now pending before the Supreme Court of Canada.

The point is that the press got hold of this, and it looked bad for the commissioner his counsel getting up and saying the commissioner thought it was an improper investigation. "Harvey's decision stated that Morrison's Victoria-based lawyer, Steven Kelliher, had 'asserted that the commissioner'" the commissioner "'proceeded in this manner because he considered there had been a cover-up by the chief constables and the members of the Vancouver city police department responsible for the investigation.'" [1740]

Now this case has gone in the ditch, and it looks bad for the commissioner. Given my preamble to this of his conversations with me, knowing full well of Matt Adie's report in writing and instructing his counsel, Steve Kelliher, to appear in front of him and what Steve Kelliher says Justice Harvey didn't like it. So is the commissioner going to wear this? Is he going to be a man and take it? Well, you can judge for yourself by the quote in the Georgia Straight in tab 29: "Morrison, however, told the Straight that Vancouver police conducted a 'very thorough investigation' and that in his opinion, there was no cover-up." That is absolute hogwash and rubbish. When I was there on the Monday and read that, I was just astounded and wondered what I had got myself into. Ergo, I went back to the press release on the Vancouver Six, and I was seeing the same setup. That's why I was balking at continuing on as counsel and why I was considering going to the ombudsman's office. I'm sure Mr. Kelliher, though he couldn't tell us anything today, must have been at least as shocked and probably more than me in reading that in the paper. Being the ethical, moralistic individual he is and being bound by solicitor-client privilege, you see no response from Mr. Kelliher in the newspaper to set the record straight. I have talked of but a few examples. If Mr. MacDonald appears before you, he can direct you to other files in the office where there has been serious harm and death to individuals in contact with the police, in which there has not been a public hearing called.

In closing, I say this. Don Morrison repeatedly displays, and you probably have seen it in a number of places, the equivalent Latin maxim: "Who will guard the guardians?" He has baseball caps with that on and T-shirts with it on. Perhaps in my submission, the better question is: "Who will guard the guardian of the guardians?" There are only the people that can do that, and you are the people. J. Nuraney (Chair): Questions? [ Page 349 ] B. Locke: Thank you, Mr. Urban. Your presentation was a thorough one, and I thank you for that. I wonder if you can go back to your tab 16 and just clarify if the press release that's referred to there the one about the six Vancouver police officers is the one that Mr. Adie had referenced when he reported to us. D. Urban: Yes. B. Locke: Is that the same one? D. Urban: The one where he talked about getting together and sitting down and drafting mutually gratifying press releases. When I read the Hansard of his evidence I'm not sure exactly where that is right now I knew it was, at least, the Vancouver Six he was talking about. B. Locke: I have a couple more, Chair. Should I just go further? J. Nuraney (Chair): Just continue, please. [1745] B. Locke: Okay. Also, I noticed the letter on your tab 19. I won't use the names, as we were cautioned, but that letter is addressed to, I am assuming, the solicitors or the barristers for the Vancouver police department. D. Urban: Yes. Specifically, the chief of police. B. Locke: Okay. That's the same one that is on tab 16, then? D. Urban: Yes. B. Locke: Had you written to that company or that group of barristers prior to April 18? D. Urban: I would have written on other matters. B. Locke: Yeah, but I just wondered if they were the same ones as, perhaps, months before or a year before that. D. Urban: My understanding is that that firm is long absent any conflicts of interest that they may have. That firm has long been retained as counsel for the chief. B. Locke: Also, do you have any personal relationship with Mr. Adie? Are you friends? D. Urban: You may have noticed here that I called him Mr. Adie a number of times. Outside of work the answer is absolutely no. He's a fitness nut; I smoke cigarettes. I go out and smoke, and he goes out and runs. His retirement party, I believe, off the top of my head, is the only social function that I can recall ever being at with him. I may stand to be corrected on something else, but no. He's a man that I respect, but you must bear in mind that my home was in Victoria. I would leave during the weekends, and then, because I was also doing a case for the Attorney General, I often in fact worked from Victoria. B. Locke: Thank you. D. MacKay (Deputy Chair): Mr. Urban, thank you very much for being so thorough in providing the committee with the material laid out as nicely as it is. It was certainly easy to follow you through your presentation. Just to go back to tab 14 for a moment, if I could, Mr. Urban. You had suggested that the only letter that is still held by the office of the police complaint commissioner is the one dated August 15, 2001 the first one in the tab. Was that correct? D. Urban: I just confirmed that a couple days ago. Without divulging my source of information, that is the information I have. D. MacKay (Deputy Chair): There's quite a few pieces of paper relating to this specific file. These don't show up anywhere in the office of the police complaint commissioner, relating to that particular file. Could they have been filed somewhere else? It doesn't make sense they would be filed somewhere else if they were relating to a specific file. D. Urban: I'm told that they're not in the file and that they were shredded. R. Lee: Thank you for the presentation, Mr. Urban. There seems a lot of questions on the record management system in the office. Who is making the policy on the record management? Are there any guidelines for that? [1750] D. Urban: In my eight months there I dealt very little with record management because most of the files I worked on were simply stacked in my office. I never once went to attempt to retrieve them. They just always appeared. I do know that they had procedures in place that were just like any other office. At no time while I was there was anything deleted or shredded. It was never discussed. It was never an issue. A document is a document. If it belongs to a file, whether it's a good document or a bad document, that's where these things go. Having a secret lockup place with restricted keys is something I never heard of when I was there. I cannot say they, in fact, didn't have one, but I can tell you one thing: the Paul file was never locked up, so why it would now be locked and access restricted is totally beyond me. R. Lee: You also mentioned that some computer files are missing or have been deleted. D. Urban: Yes. [ Page 350 ] R. Lee: Who had control of the deletion of those files? D. Urban: That I don't know. They were deleted off of Bill MacDonald's computer and off I'm not very computer literate where they interconnect. R. Lee: The network. D. Urban: Yes. R. Lee: Okay. Thank you. D. Urban: Bill MacDonald and others can verify that. K. Johnston: You've talked a little bit quite a lot, actually about a close relationship between the commissioner and various police chiefs. I think you indicated that. I was just wondering. Even though there were closed-door meetings and that, would some of that be directly related to trying to develop, in a closed-door meeting, an open-door sort of relationship between departments and the office itself? I assume it might be difficult, if you didn't have some sort of relationship, to get that flow of information and cooperation, if I can put it that way. Could some of that be attributed to that? D. Urban: Oh, undoubtedly, and I'm not against that. No one in the office whatsoever is against that. You have to foster personal relationships and establish trust, but there's a way to do it. The way we suggested to do it was not the way that he continuously did that. It didn't matter. We're not advocating for any particular group. It can't be lost that our concern, as well, was for police officers. How would you feel if you were a respondent for example, if you weren't getting along with your management and all of a sudden the chief wants to take you down and reduce you in rank, to deal with you very harshly? How would you feel, as a respondent police officer who didn't think you had done anything wrong, watching these two clapping each other on the back and having a very nice social occasion? As a respondent, I would be appalled, even if they were talking about hockey. We're not saying one way or the other that it's wrong. It would be just as wrong if he went down to East Hastings Street and picked a complainant out and was backslapping in a local pub. We just felt it was important to deal openly and professionally in these relationships. Always have someone else there, so that no one can ever say, "Hey, you guys were talking about this case, and I'm upset" whether a member of the public or the police or the police union. That's all we were asking. This whole process would fail if there weren't good working relationships between all parties. K. Johnston: Mr. Morrison issued a press release. I don't know how many days ago now. I think he talked about disgruntled employees. What I'm getting from some of the testimony of people that have come forward through the various meetings is that there seems to be a common thread of unhappiness in the operation of that office from just about every level of person. Is my sense on that right? From right down in the accounting department right up to the deputies that worked in that office, would it be fair to say there was unhappiness with the operation or the leadership in that office? [1755] D. Urban: When I left, the morale was one of the lowest I've ever seen. I maintain some contact with some people, and I'm advised the morale is even lower. I've read what many people have said before this committee. I read one, for example that was Bill Summersgill and I must say, I was disappointed in reading what Bill had to tell you or not tell you. Certainly, in my dealings and around the office, he had he expressed, at least very opposite views to what he has said. K. Johnston: Just one further question. I was somewhat, I don't know, interested in your take on the Paul affair when the meeting was arranged with, is it Dr. Ferris, I think you said? D. Urban: Yes. K. Johnston: He'd gone to a lot of work to come forward and provide some information, and Mr. Morrison got up and left the room and, in your words, I think, went to play computer solitaire. I guess what I'm asking is: was there ever any explanation from Mr. Morrison of that behaviour or his thoughts or why he didn't think it worthy to stay in that meeting? Did anything ever come out of that? D. Urban: No. You see, forensic people tend to write rather blandly in their reports, and then when they're on the witness stand or witness interviews, they really just cut to the chase. When he heard that, he was hearing what he didn't want to hear, in my opinion, and it didn't interest him anymore, and that's why he walked out. K. Johnston: Oh, okay. Thank you, Mr. Urban. P. Sahota: Thank you, Mr. Urban, for appearing before the committee. I was interested in terms of some of the protocols that you have laid out in one of your tabs, which brings me to the question about accountability and transparency in the act. Is it your view that that is not laid out properly in the act itself? D. Urban: Well, it's something that no one Justice Oppal or the government at the time, when they debated it and passed it would have ever thought about, because it's so basic that one would never put protocols in a statute. It's like telling a judge on appointment that during the luncheon breaks he shouldn't go for a beer across the street with one of the litigants in the case. People know that. I don't think legis- [ Page 351 ] lating it is the answer. When first-year law students can tell the difference between right and wrong on perception of biased issues, you don't need legislation. K. Johnston: Mr. Chairman, I just have one other question. I'm sorry. I didn't get to ask it, Mr. Urban. I just made this quick scribble when you were talking. You talked about this is a different vein eight public hearings in four years and spending millions of dollars. I don't know if I got that right, but I was kind of wondering. It intrigued me. What are we spending millions of dollars on if we haven't even completed these eight hearings or whatever? [1800]

D. Urban: Well, we're spending a lot of money at the rates charged to individual respondents and police officers at $300 $300 is a pretty common number an hour. These cases generate an enormous amount of paperwork charged out at an hourly rate and all the appeals. If those things had been tweaked about, you know, whether Morrison can go after command and control, then we're not fighting those issues out in paper, in the lower courts, in the appellate courts and in the Supreme Court of Canada. To run these cases in the Supreme Court of Canada is hundreds of thousands of dollars. All I'm saying is that they could be better spent elsewhere. Time has not permitted me a number of things to sit down and really consider all the minor tweaking that would streamline the process a lot quicker. It would get back at some of the principles that Justice Oppal found important, like expedition through these processes. These things are hard on police officers, for example, with their families. They're under public scrutiny for their misconduct. By and large, they want to get these issues resolved and all this procedural wrangling and even.

How do you conduct a hearing? In criminal law, I know how to do that. In civil law, there are rules. When I first read the Police Act and went in on my first court cases, I had to confess that even though I'd been in the courtroom for 25 years, I wasn't sure if I even had the right to cross-examine anyone here. How do you do this? That could be much clearer. Instead of relying on developed common law or case law in this field, just legislate it. How do you do this? Well, the commission counsel stands up and calls evidence. The other side cross-examines, re-examines. That's how confused I was when I went there. I didn't know that. I'm still not certain that's figured out how you conduct these things. When I read Mr. Kelliher's transcripts, that was basically how those public hearings progressed in the traditional sense. It really depends on who you're against and their views of how you proceed. I think that would be of great assistance to any adjudicator and counsel in trying to judge a case. B. Locke: Mr. Adie talked about the high level of autonomy and the authority the commissioner has. Do you think, given the complexity of the interests and the diversity of those interests, that should be, perhaps, a panel rather than an individual? D. Urban: In fairness to the commissioner, when I talk about rebar, I mean that, but given the power and the way it's set up in this model, you need a superhuman to have all the qualities. I'm not that person, for example, but I'm sure there are some out there that have the qualities to really do this right. It's an issue I've thought of. I thought that one possibility in dealing with taxpayers' money and efficiency and what not is to take some of your special order-in-council outfits, like the police complaint commission, and amalgamate them into one like the ombudsman and maintain deputies at each different discipline that have a special expertise. We've had some great people in that position in the past, very competent and highly moral people such as Owen and others. That's really all it takes in order to exercise discretion, which is the ultimate thing, not how you organize training sessions for the police or what conferences you're going to go to and those sorts of things. Those are not important. The ultimate, important thing here is a fair and independent exercise of discretion based on the rule of law, and you don't need much other than basic human qualities in order to exercise that discretion fairly. [1805] The other idea I had that I liked about the amalgamation was that you insulate, for example, the ombudsman from direct or indirect improper influences or from being too close to the police. Let the deputy, if necessary, be close to the police and close to complainants and things of that nature. Because the ombudsman's job is so diverse, that extra layer of insulation is inherently built into that kind of model, but it's not the Oppal model. As I said earlier, I respect the work of the Oppal commission, and I respect his recommendations. With minor tweaking, I think it's still saveable costly, but saveable. B. Locke: Section 50(2)(h) talks about conducting reviews of the complaint process and making any recommendations for improvement of the process in an annual report. I wonder if you've seen the annual reports of the police complaint commission. D. Urban: I've seen but not had time to dwell on or read one. B. Locke: Oh, okay. So you didn't review them when he would make his annual reports? D. Urban: Not in detail. The commissioner and I were at odds about legislative change. For example, when Doern and Jones happened, it identified a number of areas, and I made recommendations at that time to advance legislative change and not necessarily wait for the appellate court. B. Locke: There's another section, section 50(3)(e) and 50(3)(f), where they also give the police complaint [ Page 352 ] commissioner the authority to make recommendations to the Attorney General. I wondered if you ever heard of him ever utilizing that avenue and making those kinds of requests or recommendations to him. D. Urban: Yes, he has, I think, and more so at or just after the time that I left. He started putting some formal lists together for submission. It's not that it has been ignored. B. Locke: Also, in talking about the Frank Paul case, Mr. Adie mentioned that the commissioner requested that the AG hold an inquiry and that the chief coroner hold an inquest, even though he had the authority to hold a public inquiry. Do you know why he did it that way? D. Urban: In fairness to Mr. Adie, it was the Solicitor General he sent it to. I would love to know the answer to that. I've never understood, from the very first dealings with the commissioner, why he has taken this position in this case. Why has it not interested him? I don't know the answer to that. B. Locke: Do you think his feeling towards the Anthany Dawson case was similar to the Frank Paul case? D. Urban: I can't speak for him, but he did have different considerations in the Anthany Dawson case. [1810]

One consideration, if I were attempting to exercise my discretion and looked at section 60(5). One thing that the Anthany Dawson case had that these other cases don't have, like the Paul case and cases like that, is there had been a very long and intense public inquest. Many witnesses were brought forward and cross-examined, their evidence challenged and what not. I know an inquest serves a different function than a public hearing under this act. All I'm trying to say is that most of the facts were publicly aired, so if you look at the public view, the public can make decisions as to what the police did or not, whereas Paul is silent; the public doesn't know.

J. Nuraney (Chair): Just to continue on that thread, were the police officers disciplined in the case of Anthany Dawson? D. Urban: I did not work on that file. Frankly, I just don't know. J. Nuraney (Chair): We had the family members here at one of the submissions. They said they had requested a public hearing, which they never got. You were not involved with that file? D. Urban: No, I had nothing to do with that. The file had been monitored by Bill Summersgill in our office. I think he attended most, if not all, of the inquest proceedings, but he did not report to me. He reported directly to Don Morrison. Then the request for the public hearing came after I left, so I don't know what happened. P. Wong: In the Province today there's an article by Barbara McLintock stating that Justice Oppal had said that he can understand why some people think civilian oversight of police operations is still not strict enough, but he doesn't agree. He further said that this legislation was a compromise a very workable compromise. In reviewing the many cases you have presented, it appears that Commissioner Morrison, while carrying out his duties, has conducted them with excessive compromise for instance, with the Vancouver police. Do you think he might have a misconception or misinterpretation of the act that he has to exercise his rights in a way, trying to make compromises with the police?

D. Urban: I read that as well. I wasn't exactly sure what Justice Oppal was talking about, about the workable compromise. I think what he was referring to was when, in the course of his inquiry and research, he was looking at the various models throughout the world and within this country and even within this province, between, for example, the RCMP and municipal forces. I think what he is saying is correct: there is no perfect model. By trying to draw the best from the various models though the police really did not want to buy in, at least wholeheartedly, to the concept of civilian oversight the model he came up with as being a just model was, in fact, that workable compromise and that the police gave in somewhat. It's not like complainants were giving in, because it's pretty hard for them to be a lobby group to present a united front in that regard.

Do I think that Morrison has compromised his position in dealing with some of the complaints? My answer to that is yes, I do. I think the Paul case is a clear example of that. I think time will tell that Phillips was another compromise case. [1815] P. Wong: Do you think the Ministry of Attorney General itself needs further tightening up of the spirit of the legislation to avoid any possible misinterpretation? D. Urban: Well, there are duties I forget the section numbers and responsibilities for the commissioner other than just exercising the discretion to hold or not hold a public hearing. There are positive duties. Education is one of them. Getting input and giving input to the community is one. The legislation is there for that. It's a question of having the right commissioner to create the right balance in performing the duties provided statutorily. P. Wong: In tab No. 19 you wrote a letter to one of the lawyers. Are you of the opinion that the lawyer who intervened in the press release was, in fact, in a possible breach of the code of ethics in the Law Society? [ Page 353 ] D. Urban: That was what my view was. That was why I phoned that lawyer: to tell him I was concerned on a specific case as opposed to generally talking about policy that he would talk directly to the commissioner when I was counsel on that case. Did I complain to the Law Society? I did not complain to the Law Society. Nor did I complain the second time, when I wrote the letter. P. Wong: Would that be one of the reasons that could be brought to the attention of the society in respect to that? D. Urban: It can be brought up to them as a complaint, just like any other legislative body under the Legal Profession Act. I chose not to do it. P. Wong: Thank you. B. Locke: I wanted to know what you thought the office of the police complaint commissioner was doing for community outreach, especially with respect to tribal police agencies. Do you think the commissioner did his best to ensure that those people were included and understood the process? D. Urban: The best person to get that information from is Marilyn. My view is that he did little for the common people. Yes, every once in a while he'd go out to some important function, and visible minorities would be there. But did he do it for them or because the optics were good for the commissioner? Because there was little, if any, follow-up by him subsequently and a deliberate thumbs-down on Marilyn and her program, I cannot help but conclude that that responsibility was lightly viewed by this commissioner. B. Locke: Specifically with tribal police forces? [1820]

D. Urban: I'm sorry. Tribal police forces was a matter of concern to me, again, which I expressed, as a matter of fact. Bill MacDonald is the one charged with that responsibility. In fairness, for economic reasons or whatever, some of these police forces didn't fare too well. Bill MacDonald has made some trips, and I know there are some plans to make trips. I know they have taken some steps to invite the one tribal force to come to these learning environments that are repeatedly put on by human resources and provided by the commissioner's office. Things appear to be getting better in that regard, but certainly in the eight months that I was there, there was absolutely no serious effort put in by the commissioner. Very much like Marilyn in her outreach program, what little did happen was at the instance of Bill MacDonald. D. MacKay (Deputy Chair): Did you have a job description when you went to the office of the police complaint commissioner? D. Urban: Yes, I did. D. MacKay (Deputy Chair): Was it to give legal advice to the office, or was it to conduct hearings? D. Urban: It was a combination of a whole number of things to provide legal advice. What they were trying to do was look at the economic feasibility of having in-house counsel as opposed to ad hoc counsel at a very high hourly rate. They wanted to experiment with that. They also wanted to experiment with continuity of files to create a flow, and that's why I was brought in. The job description they had at the time encompassed many things: get precedents and systems together, appear in court, give advice, meet and liaise with chiefs of police and interest groups such as the B.C. civil liberties organization. D. MacKay (Deputy Chair): It sounds like there was an insulation factor built into the job description from your perspective. D. Urban: Uh-huh. D. MacKay (Deputy Chair): I just want to follow up on that a bit more. You're a solicitor. The deputy commissioner, I believe, is also a lawyer. D. Urban: The current. D. MacKay (Deputy Chair): The deputy now, I believe, is also a lawyer. J. Nuraney (Chair): Yes. D. Urban: She may be, but I don't think she's called to the bar. D. MacKay (Deputy Chair): Okay. D. Urban: At least, she wasn't when she came on, because she came from out of province. I mean, the nature of her work in the past was such that you did not necessarily have to be a member of the bar, working in the police organizations where she had worked police relations and things of that nature. D. MacKay (Deputy Chair): I just want to follow up on that. You talked about different levels of insulation. I guess what I want to ask is: given the complex and sensitive nature of those decisions that the commissioner has to make. You've had input into it, the deputy commissioner's had input into it and, I'm assuming, the investigator. The commissioner at one time would sit down and discuss some of these files. The decisions that were made and we're hearing about now weren't always agreed to by all the parties. I'm wondering: if there is not consensus among those people who are paid to look after the running of that office and to make those decisions, would it not make sense, if the four the investigator; the counsel, like yourself; the deputy; the commissioner could not agree on that issue "We should not have a public hearing," or "We should have a public hearing." [ Page 354 ] Should there not be some sort of a team concept to make that decision, as opposed to one man? [1825]

D. Urban: Well, in Mr. Morrison's first press release, or the one that came directly from his office, that was his attack on Matt Adie that Matt Adie came before you and told you what he did, his motive to give you misinformation being that he was unhappy because his opinion or advice was not accepted by his superiors who have the task to make the ultimate decision. Frankly, I believe the Oppal model is right in the sense that the buck has to stop. One person has to make that call, whether it's the ombudsman with the added insulation or this commissioner with the basic values I've been talking about. Someone has to be at the helm. They have to be in charge. They should not be lightly rejecting the opinions of learned people in that office like he does and without even responding as to why he's doing things. That's what's wrong with it. Part of the problem with the model and it's absolutely clear when you look at the Paul case is what Morrison has talked about all the time: "I am the police complaint commissioner. I am only accountable to the Legislative Assembly." Because of that, there isn't any real accountability for his decision-making that I can see. To say that this is the place to which he is accountable is a pipedream. How would anyone on East Hastings Street, let alone a Mi'kmaq Indian from New Brunswick, ever avail themselves of the only remedy that's available to review any commissioner's decision? It's not a real one. Respondents have rights of appeals a right to take matters into court as Jones and Doern did in front of Justice Harvey and in other cases but your complainants under this model have no rights. That's why you need a strong, highly moral commissioner in this model.

D. MacKay (Deputy Chair): Let me just take you back to one step prior to the commissioner signing off, saying: "There will not be a public hearing. This matter is now concluded." Had there been a step prior to that wherein the people that took part in the decision-making had signed off, saying, "We concur that a public hearing is not warranted in this case," and counsel, the deputy commissioner and the commissioner signed off on it? That way there would be some method of determining that the people in the office concur that that's the proper action. The commissioner can then submit his report, saying there will be no public hearing on this, knowing full well that he's got the support of senior people in his office. Would that have prevented the issue that we're talking about on the Paul case today where he made a decision on such a contentious issue and ignored senior people in his office? Do you think that might have prevented that from happening if he had to get the concurrence of senior staff in his office to sign off and say: "There will be no public hearing"?

D. Urban: I don't see that as a workable solution. It would be somewhat akin to telling the Attorney General or some other minister or deputy minister that they need the concurrence of their senior people. The Attorney General is elected and appointed, and that's the job. Mr. Morrison is appointed, and that's his job to be independent and impartial. I think the answer is not consensus; the answer is basic human values and, perhaps, a better accountability mechanism. You can't do this every three or four years. Otherwise, what's a person supposed to do? Put it on the list to bring it into the House and do it? [1830]

I don't think the poor and the disadvantaged people, people with language barriers and people that don't have money to hire guns can ever bring their true concerns here. They are the ones that Oppal and this committee, in the beginning, identified as the most vulnerable people, the people most vulnerable to the bad police not the good police but the bad ones. I think it's got to be left with the individual but, perhaps, looking at the accountability aspects. R. Lee: From the presentations we learned that there is a lot of liaison between the commissioner and the police. However, we also heard that the complainants are not getting access to the commissioner. Is that your experience in office? D. Urban: In my eight months there, I didn't see any complainants getting taken out for lunch and having it paid for with the public dollar that's for sure. It clearly isn't a two-way street. I don't know about the new deputy, because I've had very few dealings with her. Speaking of the people that worked in the office when I was there, my view of them was that they were highly principled, intelligent and decent people. I have personally observed them bending over backwards on many occasions, on the phone and in person, to people who had come in and complained.

As we know, in life there are some people that perhaps have a disability and just don't understand things, and people that have anger management problems and just won't let things go, even though the process is done properly. Those situations are very rare. I have never in my time there seen anyone under the commissioner ever act. I have not witnessed them acting inappropriately towards people. As a matter of fact, I remember thinking on a number of occasions: "You people sure have more patience than I in dealing with some of these people." But there are simply people that cannot be pleased, and that's just a fact of life. B. Locke: I just wanted to ask a quick question on the dispositions. If you look at all of the hearings and the decisions that he's made, they're all over the map. Do you have any comment on that and how they relate to other jurisdictions?

D. Urban: Well, if one wants to compare it to what happens to police in Saskatoon who do things like [ Page 355 ] what happened to Mr. Paul, I think they take a much different view than what we take in this province. [1835]

I was shocked when I came to the commission to find how inconsistent and light some of the penalties are for some of the police misconduct that has been found by a board or an adjudicator. It's quite shocking. If you look at the Paul case, it was a one-day suspension for that a dead person and two days for the other. I might add, as well, that that sergeant had a number of prior complaints. He had been dealt with by his police authority on either four or eight somewhere in there prior occasions for neglect of duty. It's not like that person was a first offender. In these situations you sit back and say: "Two days. Two days!" One of the factors under section 60(5) is whether or not what the police authority did is adequate.

I think the difficulty, from what I viewed of the commissioner's reaction to things, is that so much depended on what the police authority themselves did and why they did certain things. That would often dictate the path the commissioner would follow. That's why there isn't always rhyme or reason between different cases as to what is appropriate or is not appropriate.

B. Locke: If I could just go further, can you comment on the consistency between the different police jurisdictions, like between Saanich and Vancouver and New West and maybe some aboriginal? Are they all over the map? Or do you see them? D. Urban: I think, generally, they are. The Saanich police, which I have a tremendous amount of respect for, clearly tend to look at minor transgressions in a serious light. I mean, a police officer who doesn't show up for court on a traffic ticket gets more of a reprimand in Saanich than these officers in the Paul case. There's a glaring example. J. Nuraney (Chair): One final question from me, Mr. Urban. Given the fact that this act came into being in '98, I believe, the police commissioner did not really have any precedents to fall back on. With no track re-cords of these kinds of cases or complaints, the handling of them was totally a new territory. Would it be fair, perhaps, to say that it was more a question of bad judgment than not wanting to follow the procedure to its final end of justice?

D. Urban: I've been involved at ground zero on a number of organizations, including the war crimes tribunal. I still remember back to that day, showing up in The Hague. I was very happy I had brought with me a briefcase that had pens and paper in it, so I had something to start with in its infancy. Like any other new organization, there are obviously growing pains. A lot of the mistakes made are absolutely to be expected. There are going to be more mistakes made, because everyone there is a human being, but what Mr. Adie and I are talking about aren't growing pains. Those are basic human values. [1840] J. Nuraney (Chair): Any other questions, members?

I would like to thank you, Mr. Urban, for giving us quite a bit of your time this afternoon and laying before us some of your concerns, including your office and this process. I really do want to thank you. Also, I would like to just put the proviso just in case we need you to come back again to throw some more light as we get more into the specifics: would you be willing to come back before the committee?

D. Urban: Yes, unless, as a result of today, something happens to me. If summonsed, I certainly will not ignore the summons. I think the work that is being done here is very important work. From what I've read in Hansard, I admire the members of this committee for having the desire to search for the truth and to put as many hours into it as you do. I was mentioning to Kate that she's a lady of boundless energy. I wish you luck. If need be, you can summons me, and I will be back. J. Nuraney (Chair): Thank you. We conclude the meeting at this point.



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