No charges against Vancouver man who urinated on Komagata Maru memorial against racism

What started out as a potential hate crime has devolved down to . . . nothing.

Vancouver police say no charges will be laid against the man they believe urinated on a memorial aimed at highlighting the scourge of racism.

"In laying a charge, investigators would need to establish that a criminal offence took place, laying a charge was in the public interest and that there was a substantial likelihood of a conviction," police spokesman Sgt. Randy Fincham told CBC News and other news outlets via email.

"In this case, it was determined that all three criteria had not been established."

Late Tuesday, police elaborated on the decision following what they said were inaccurate media reports.

"While the actions of an individual may be offensive and disrespectful, it does not make those actions criminal," Const. Brian Montague said in an emailed statement to Yahoo! Daily Brew and other outlets.

"In this case, investigators determined that the actions were not criminal and confirmed this assessment with Crown Counsel. Simply stated, urinating in a public place is not a criminal offence in Canada, regardless of the context, unless the elements of an offence are present as set out the Criminal Code. Those elements were not present in this case."

One of the men who witnessed the incident finds that hard to swallow.

"I'm not really happy with that," Pargan Mattu told the Huffington Post on Tuesday. "If anybody pisses in a public place, they get a ticket or they get arrested, so they're supposed to do this. I don't know why the police are not charging him."

[ Related: Man who urinated on Vancouver memorial may have committed a hate crime ]

Mattu encountered the man, who police have not identified, last month as he was showing a visitor the memorial in Coal Harbour dedicated to the notorious Komagata Maru incident.

Almost 400 would-be migrants from India, mostly Sikhs, arrived in Vancouver harbour in May 1914 on the ship Komagata Maru, which had been chartered in Hong Kong to test Canada's restrictive immigration policies.

Most of the passengers, who did not have the $200 landing tax imposed by the B.C. government, remained on board with little access to food and water for two months until a Canadian navy warship forced the ship to sail away at gunpoint.

The memorial, a blown-up black and white photograph of some of the passengers, was unveiled in 2012.

As Mattu, a Sikh, and his friend were taking photographs, a man walked up to the memorial and hurled a soccer ball at it. When Mattu challenged him, the two got into a verbal exchange.

Then the man stepped close to the memorial and began urinating on it as Mattu photographed him.

Fincham said at the time that the police department's hate crimes unit would become involved in the investigation. There were some suggestions the dishevelled-looking man was drunk and may not have understood the significance of his action.

That's what police seem to be saying now.

"The man has been made aware of the cultural significance of the memorial and that his alleged activity in and around the memorial was inappropriate and insensitive to the South Asian community," Fincham told 24 Hours via email.

[ Related: Afghan war memorial desecration draws high-profile reward offer ]

It's understandable that proving hateful intent, which would factor in during sentencing, may be difficult, especially if the man was intoxicated.

But given the photographic evidence, it's hard not to agree with Mattu that the desecration of the memorial could not have merited a mischief charge.

That's what happened to one of three young men photographed urinating on the National War Memorial in Ottawa in Canada Day in 2006. The charge was dropped after he joined his two cronies in apologizing, donated money to a veterans hospital and performed 50 hours of community service.

"If I can pee somewhere, or you pee somewhere, you get a ticket," Mattu told 24 Hours. "I don’t know what’s going on here."

Police did consider that, Montague said.

"It has been suggested that police could have issued the man a by-law ticket for the incident," his email said. "This was, in fact, one of the options that was contemplated, but certain underlying facts and circumstances led to the conclusion that a by-law ticket would not be appropriate."

There was no explanation of what those underlying circumstances were.

At the very least, police could have encouraged the man to make an apology to the outraged South Asian community, and all Canadians, for his disrespectful behaviour.