The Davies Commission

Inquiry into the Death of Frank Paul
William H. Davies, Q.C., Commissioner

RULING #2

FURTHER APPLICATIONS FOR
PARTICIPANT STATUS

November 26, 2007


THE FRANK PAUL INQUIRY

William H. Davies, Q.C., Commissioner
Appointed under the Public Inquiry Act, S.B.C. 2007, c. 9

Introduction

  1. On October 17, 2007 I made my first ruling on applications for participant status. That Ruling is available on the Inquiry website: www.frankpaulinquiry.ca.

Further applications

  1. Since then, the Inquiry has received two further applications for participant status, made by counsel acting for former Sgt. Russell Sanderson and by counsel acting for Cst. David Instant, both of the Vancouver Police Department. Both applications are made after the deadline stated in the public call for participants. However, both applicants were at the relevant time members of the Vancouver Police Department that has been granted participant status.

Legislation

  1. Subsection 11(4) of the Public Inquiry Act states:

    On receiving an application under subsection (3), a commission may accept the applicant as a participant after considering all of the following:

    (a) whether, and to what extent, the person's interests may be affected by the findings of the commission;

    (b) whether the person's participation would further the conduct of the inquiry;

    (c) whether the person's participation would contribute to the fairness of the inquiry.

  2. These are the criteria that have guided my analysis and determination of who should be accepted as participants for this commission of inquiry.

  3. As I stated in Ruling #1, the legislation does not specify what rights may be granted to participants, but it is uncontroversial to say that participation would typically include access to documents (according to the commission's procedural rules); a seat at counsel table; and the opportunity to make closing submissions. Depending on the extent of participation authorized, a participant might or might not be permitted to apply to call witnesses or suggest what witnesses should be called; and might or might not be permitted to cross-examine witnesses.

Analysis

    Application by Russell Sanderson

  1. It is not disputed that on the evening of December 5, 1998, Sgt. Sanderson was the Sergeant on duty in the Vancouver Police Department police jail at 312 Main Street, when Mr. Paul was brought in.

  2. Mr. Sanderson played a significant role in the events of December 5, 1998, which this Inquiry will be examining. Subsequently, he was the subject of disciplinary proceedings within the Vancouver Police Department, respecting his conduct on that evening. It is apparent from the opening statement of the Department that a divergence of positions exists as between the Department and Mr. Sanderson.

  3. I am satisfied that Mr. Sanderson should be accepted as a participant, for the following reasons:

    • His interests may be affected by the findings of the commission, within the meaning of s. 11(4)(a) of the Act, and

    • His participation would contribute to the fairness of the inquiry, within the meaning of s. 11(4)(c) of the Act. His decision to retain counsel other than counsel who represents the Vancouver Police Department is reasonable in view of the Department's stated position.

  4. As to the extent of Mr. Sanderson's participation, as the Act makes clear (sections 11-13), I may make orders respecting the manner and extent of a participant's participation. Mr. Sanderson may attend the hearings, receive disclosure of records (according to the commission's procedural rules), and make submissions. I will decide at a later date the extent to which counsel for Mr. Sanderson may call witnesses and/or cross-examine witnesses.

    5. Application by David Instant

  5. On the evening of December 5, 1998, Cst. Instant was the driver of the Vancouver Police Department police wagon.

  6. Mr. Instant played a significant role in the events of December 5, 1998, which this Inquiry will be examining. Subsequently, he was the subject of disciplinary proceedings within the Vancouver Police Department, respecting his conduct on that evening.

  7. I am satisfied that Mr. Instant should be accepted as a participant, for the following reasons:

    • His interests may be affected by the findings of the commission, within the meaning of s. 11(4)(a) of the Act, and

    • His participation would contribute to the fairness of the inquiry, within the meaning of s. 11(4)(c) of the Act. His decision to retain counsel other than counsel who represents the Vancouver Police Department suggests that his interests may differ from those of the Department. If that is so, it is important that Mr. Instant's interests be separately represented before the Inquiry.

  8. As to the extent of Mr. Instant's participation, as the Act makes clear (sections 11-13), I may make orders respecting the manner and extent of a participant's participation. Mr. Instant may attend the hearings, receive disclosure of records (according to the commission's procedural rules), and make submissions. I will decide at a later date the extent to which counsel for Mr. Instant may call witnesses and/or cross-examine witnesses.

____________________
Commissoner W. Davies, Q.C.
Frank Paul Inquiry

Frank Paul Inquiry 2007 ©