Anyone other than a police officer would have been charged for refusing to admit an obviously intoxicated homeless man to the city drunk tank before he froze to death, says a lawyer who's representing the man's family.
Instead, the Crown ignored key aspects of a senior Vancouver police officer's actions on the December 1998 night that Frank Paul died of hypothermia, Stephen Kelliher told a public inquiry Thursday.
Paul was left in an icy alley by a junior officer after then-Sgt. Russell Sanderson ordered that the chronic alcoholic be removed from the drunk tank.
The 48-year-old Mi'kmaq from New Brunswick had been picked up for being drunk in a public place.
But the inquiry has heard that Sanderson believed Paul could not have become intoxicated after being released from the facility just two hours earlier.
Gregory Finch was director of legal services in the Criminal Justice Branch at the time and reviewed an earlier decision not to charge Sanderson and Const. David Instant, the officer who dumped Paul in the alley.
Finch agreed with Kelliher that both officers' actions met the criteria for charges of manslaughter, criminal negligence causing death and failure to provide the necessities of life.
But he said his decision to not lay charges was based on his finding that there wasn't a substantial likelihood the officers would be convicted.
"I think Sgt. Sanderson was dealing with a very complex situation including organic debilitation," Finch said.
Retorted Kelliher: "I suggest to you that the only complexity here is that these are police officers."
"That's absolutely untrue," said Finch, now director of criminal appeals and special prosecutions for the Criminal Justice Branch.
Kelliher suggested Finch should have focused on Sanderson's belief that Paul wasn't drunk despite the fact that the arresting officer smelled rice wine on his breath and that Paul had to be dragged out of the facility because he couldn't walk.
Finch admitted he knew a police officer had given Paul a toonie after his first release from the drunk tank and that bottles of rice wine were sold within a block of the jail for about a dollar.
On Wednesday, Fitch testified that Paul was known to often become immobilized by his drinking but made his way around anyway, suggesting he could have done the same on the night he was dumped in the alley.
The Vancouver Police Department investigated its own officers and recommended no charges in a report to the Crown.
The inquiry has already heard that Sanderson did not ask a nurse to assess Paul, whose clothes were soaking wet when he was brought to the drunk tank, suggesting he could already have been suffering from hypothermia.
Kelliher also questioned Finch about why neither he nor anyone else in the Criminal Justice Branch bothered to contact Paul's family, despite a policy requiring next of kin to be updated about developments in a case.
Finch said there wasn't any contact information in Paul's file but he didn't take any extra steps to find relatives, adding such tasks are a shared responsibility with the regional Crown office.
"It's a matter that the branch needs to be attuned to," he said when Kelliher questioned the Crown's obligation to provide family members with information.
The inquiry has heard that police told Paul's family in New Brunswick that he died after being hit by a taxi.
Finch's testimony at the inquiry is providing a rare glimpse into the workings of the Criminal Justice Branch, which had fought against having to justify its decision to not charge the two officers at the inquiry.
The Crown challenged the summons to the Supreme Court of Canada, which refused to hear an appeal on the matter.
