VANCOUVER — A Vancouver police officer should have been charged with manslaughter for leaving an intoxicated homeless man in an alley where he froze to death, a lawyer for the man's family told a public inquiry.

Stephen Kelliher said Wednesday that any reasonable person would have realized that Frank Paul couldn't walk and wasn't capable of caring for himself in the cold on Dec. 6, 1998.

Kelliher had a testy exchange with Gregory Finch, a former director of legal services in the Criminal Justice Branch who made the final decision not to charge two officers involved with Paul in the hours before he died.

Paul, a 48-year-old Mi'kmaq from New Brunswick, was picked up by Const. David Instant for being drunk in a public place and taken to the city drunk tank.

There, then-Sgt. Russell Sanderson refused to take Paul into the facility and ordered Instant to get him out. Instant then dumped Paul in an alley.

A video shown earlier at the inquiry revealed Paul was unconscious when he was dragged into and out of the drunk tank soaking wet, his clothes leaving a streak on the floor.

"I accept there was a reasonable absence of care here," Fitch said. "What I wasn't satisfied of was that there wasn't a substantial likelihood of conviction of criminal negligence, which requires a much elevated departure from the standard of care that would otherwise be the case for civil proceedings."

Kelliher hotly disputed that assertion.

"Can you explain to me how a reasonable person in the circumstances wouldn't realize that if you take a person in Mr. Frank Paul's condition, soaking wet and incapable of managing and leave him out in the rain, in the middle of the night, without care, isn't that a marked departure from the norm? Who would do that?"

Finch said Paul was a chronic alcoholic who made his way on the streets despite his condition, and Instant would not have known that on that particular night Paul would not be able to care for himself.

The Criminal Justice Branch had already decided not to lay charges against Instant and Sanderson when the Office of the Police Complaint Commissioner provided a forensic pathologist's report and the video as new evidence two years after Paul died.

The complaint commissioner suggested there was a substantial likelihood of convicting the two police officers, Finch said.

He told the inquiry that several Crown lawyers, including two who are now judges, reviewed the case and Finch then made the final decision not to lay charges in August 2001. It was a difficult decision, he said.

"I was satisfied there was not a substantial likelihood of conviction," Finch told the inquiry.

"I found the case extraordinarily difficult to resolve and vacillated back and forth."

He said a charge of failing to provide the necessities of life was also considered and rejected.

A police report into Paul's death did not recommend any charges -- but that investigation was carried out by the Vancouver Police Department itself.

William Davies, who is heading the inquiry, has already said there's a need for a new civilian-led system to investigate police-involved deaths.

That sentiment was reiterated in June by Thomas Braidwood, who led the inquiry into Robert Dziekanski's death after he was jolted by an RCMP Taser at Vancouver's airport in October 2007.

Attorney General Mike de Jong has said B.C. will create a separate unit to investigate police-involved deaths, although no details have been released.

Davies, a retired B.C. Supreme Court judge, said Wednesday that he doesn't have the power to find any prosecutors guilty of misconduct in relation to the case but he may make recommendations on how a similar situation can be handled in the future.

The inquiry was held between November 2007 and May 2008 before coming to a halt when the Criminal Justice Branch did not allow prosecutors to testify, saying they are immune from having to explain their decisions.

The Crown challenged the summons all the way to the Supreme Court of Canada, which refused to hear an appeal, paving the way for Fitch to appear.