R. v. Marion, 2013 BCSC 621

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Marion, 2013 BCSC 621 Date: 20130314 Docket: 35421-2 Registry: Prince George Regina v. Frank William Edward Marion Before: The Honourable Mr. Justice R. S. Tindale Oral Reasons for Judgment Counsel for Crown: M.L. Ahrens Counsel for Defence: K. Jones Place and Date of Trial/Hearing: Prince George, B.C. February 25, 26, 27, and March 5, 6, 2013 Place and Date of Judgment: Prince George, B.C.

March 14, 2013 [ 1 ] THE COURT: Frank William Edward Marion is charged on Indictment Number 35421-2 with the following three counts: Count 1 Frank William Edward MARION, on or about the 7th day of January, 2012, at or near Prince George, in the Province of British Columbia, did commit manslaughter of Jagdev Singh Jawanda, contrary to

Section 236 (

b) of the Criminal Code . Count 2 Frank William Edward MARION, on or about the 7th day of January, 2012, at or near Prince George, in the Province of British Columbia, did by criminal negligence, to wit: setting fire to his residence, cause the death of Jagdev Singh Jawanda, contrary to

Section 220 (

b) of the Criminal Code . Count 3 Frank William Edward MARION, on or about the 7th day of January, 2012, at or near Prince George, in the Province of British Columbia, did intentionally or recklessly cause damage by fire or explosion to property, a dwelling house situated at 2772 Merritt Road, and thereby caused bodily harm to Jagdev Singh Jawanda, contrary to

Section 433 (

b) of the Criminal Code . [ 2 ] The allegations arise out of a tragic house fire that occurred on January 7, 2012, in the early morning hours at a residence owned by the deceased, Mr. Jawanda, who was then 85 years of age. The residence was a three-level residential building. The deceased, Mr. Jawanda, resided on the top level of the residence while the accused, Mr. Marion, rented the middle or main level suite of the residence.

There were two other tenants that rented the bottom level of that particular residence. [ 3 ] The residence was located at 2772 Merritt Road in the City of Prince George, Province of British Columbia. The accused, Mr. Marion, was arrested by the police at a location approximately one kilometre from that residence in the early morning hours of January 7, 2012. [ 4 ] The issue in this case is whether or not Mr. Marion was the person who set the fire at 2772 Merritt Road. This is a circumstantial evidence case. [ 5 ] Exhibits 15 and 17 in this proceeding are admissions of fact by the accused.

Also, the accused and Crown, by consent, admitted as evidence on this trial a pathologist report, a fire investigation report, and a forensic sciences and identification services laboratory report. [ 6 ] Exhibit 15 reads as follows: Admissions of Fact. FRANK WILLIAM EDWARD MARION makes the following admissions of fact for the purpose of dispensing with proof thereof in the trial of this matter, namely that:

1. The jurisdiction of the Supreme Court of British Columbia is admitted; 2. The identity of the accused, FRANK WILLIAM EDWARD MARION (d.o.b. October 5, 1962), is admitted; 3. On Saturday, January 7, 2012, the dwelling house located at 2772 Merritt Road, Prince George, British Columbia, was substantially damaged by fire (the "Fire). 4. The Fire was intentionally set by some person, and as such constitutes

an act of arson as defined in

section 434 of the Criminal Code of Canada . 5. The Fire was the cause, or a substantially contributing cause, of the death of Jagdev Singh Jawanda, who died January 7, 2012. 6. Emergency 911 calls and other communications handled by RCMP dispatch were computer logged by time of transmission or receipt according to Pacific Standard Time.

Unless otherwise stated, all times noted in police notes or reports are agreed accurately to reflect Pacific Standard Time. 7. 911 calls were received by RCMP dispatch regarding a suspicious person, admitted to be Frank William Edward Marion, banging on doors in the vicinity of Lansdowne Road and Ferry Avenue, Prince George, BC, at 2.52.02 hours and 03.00.34 hours. 8. 911 calls were received by RCMP dispatch regarding the Fire on January 7, 2012 at 03.00.00 hours, 03.02.26 hours, 03.05.57 hours, 03.06.23 hours, 03.07.41 hours, 03.14.56 hours, 03.19.13 hours, 03.19.40 hours, 03.19.44 hours, 03.38.11 hours, 03.45.36 hours, and 03.45.44 hours. 9.

Fifty exhibits were seized in the course of the RCMP investigation of the Fire as noted in Exhibit "A" attached hereto. Of the said exhibits, numbers 1 through 24 were seized from Frank William Edward Marion. Continuity of all exhibits in the custody of the RCMP is admitted. 10.

Firefighter Gould (partnered with Firefighter Foisy) gained initial access to the middle level of the Residence by breaking the glass patio door on the rear or "Charlie" side of the Residence. [ 7 ] Attached to these admissions are Exhibit A, and in particular, I will note Exhibit Number 9 in Exhibit A is a pair of blue jeans admitted to being worn by Mr. Marion at the time of his arrest.

Exhibit 30 in Exhibit A, which is a jerry can - notation is jerry can, main floor, bathroom tub - and Exhibits 42, 43, 44, and 45 were samples taken from Exhibit 30. [ 8 ] Exhibit 17 reads as follows: Admissions of fact as to correspondence between exhibit numbers assigned to items seized by RCMP and exhibit numbers assigned to the same items in the report of Dr. Charmaine Lee (Exhibit "3(b)" herein) FRANK WILLIAM EDWARD MARION makes the following admissions of fact for the purpose of dispensing with proof thereof in the trial of this matter, namely that: 1.

The correspondence as between the RCMP exhibit numbers assigned to seized items and exhibit numbers assigned to the same items by the forensic analyst, Dr. Charmaine Lee, are recorded in the table attached hereto as Exhibit "A." And Exhibit "A" is attached. [ 9 ] Exhibit 2B in this proceeding is the autopsy report of Dr. Gilles Molgat. The cause of death of Mr. Jawanda was found to be global ischemic/anoxic encephalopathy due to smoke inhalation reportedly due to a house fire.

Arthroslerotic coronary artery disease was considered contributory. [ 10 ] Exhibit 3D is a forensic science and identification services laboratory report of Dr. Charmaine Lee who has a PhD in chemistry. Of particular interest is that gasoline was detected on the jeans being worn by Mr. Marion when he was arrested on January 7, 2012. Also, the liquid samples taken from the jerry can found in the bathroom of Mr. Marion's suite were determined to be gasoline. [ 11 ] Finally, in the report of Dr. Lee, she notes traces of gasoline were detected on the carpet and underlay sample taken from bedroom number two.

I have no specific evidence as to where bedroom number two as referred to by Dr. Lee is located within the residence on Merritt Road. [ 12 ] The Crown called Captain James Marcel Profeit as an expert witness. I qualified him as an expert capable of giving opinion evidence as to the following: (1) the origin and cause of structure fires, and (2) the behaviour and progress of structure fires once ignited. Captain Profeit's fire investigation report was marked as Exhibit 12 on this trial. [ 13 ] The captain found two points of origin for the fire.

The first point of origin was the bedroom on the west side of the main floor suite of the residence. The second point of origin was the bedroom on the northeast corner of the main floor suite of the residence. There were positive readings for the presence of hydrocarbons in both bedrooms as detected by the Grace Industries Model C electronic nose hydrocarbon detector. The captain testified that hydrocarbons are fueled-based products which consist of such things as gasoline or diesel.

His particular tests, however, could not differentiate what type of hydrocarbon was present. [ 14 ] Captain Profeit opined that the fire in the west side bedroom of the main floor suite started in the mattress of the bed. The heat of the fire eventually broke out a window in that bedroom, and the fire travelled up the outside of the house into the attic or upper roof of the residence. [ 15 ] The captain further opined that the fire in the northeast bedroom of the main floor suite also started in the mattress of the bed; however, that fire did not burn beyond that bedroom.

The captain opined that was because there was not sufficient oxygen in that room

for the fire to continue to burn. [ 16 ] The captain was not able to say how long the fire burned for before the window in the west side bedroom was blown out or how long it would have taken for the fire to spread to the upper level of the residence. [ 17 ] I accept Captain Profeit's evidence in its entirety. I accept his opinions as to the origin and cause of the fire as well as his opinion with regard to the manner in which the fire burned on the main floor suite and then travelled to the top floor of the residence. [ 18 ] The Crown also called Joseph Stoney as a witness.

He resided in the bottom level suite of the residence with a Mr. Robertson as his roommate at the time of the fire. He testified that he had moved into the residence in approximately July of 2011. Initially, he was living on the main floor suite; however, he moved into the basement suite approximately three to four months prior to the fire occurring. He testified that the deceased, Mr. Jawanda, lived on the top floor of the residence and was his landlord. He testified that the accused, Mr.

Marion, lived on the main floor suite of the residence and had been living there for approximately two months prior to the fire. He also testified that Mr. Marion's daughter lived there from time to time, though she was not living there at the time of the fire. [ 19 ] Mr. Stoney testified that approximately one month prior to the fire, in the evening around 5 p.m., Mr. Marion tried to push his way into Mr. Stoney's suite. Mr. Robertson was also home at that time. Mr. Stoney testified that Mr. Marion was saying that "people were after him," and he was pounding on their door really loudly. Mr.

Stoney went to the door, and Mr. Marion was saying that people were after him and that they were trying to kill him and that he wanted to get into their suite. Ultimately, Mr. Stoney asked Mr. Robertson to call the police. [ 20 ] Mr. Stoney testified that on that day he heard Mr. Marion stomping around in his suite and yelling he was going to burn the house down. He heard that on more than one occasion on that particular date. Mr.

Stoney also testified that there were jerry cans with gasoline outside the residence consistent with the jerry can pictured in Exhibit 4 which was found on the main level suite in the bathroom when the fire occurred. [ 21 ] Mr. Stoney also testified that to his knowledge, Mr. Marion did not have a motor vehicle. [ 22 ] The Crown also called Tyler Robertson. He testified that Mr. Marion rented the middle floor suite of the residence and that Mr. Marion's daughter lived there with him most of the time; however, she was not there at the time of the fire. Mr. Robertson confirmed that he and Mr.

Stoney were not there at the time of the fire as well as they had been at work. [ 23 ] He stated that approximately three weeks before the fire, he heard Mr. Marion thumping around his suite and saying he wanted to burn the house down. He said this more than one time that day. He said that after Mr. Marion made those statements, Mr. Marion came to their suite and tried to get in. He said that he phoned the police. [ 24 ] Mr. Robertson testified that he could not recall whether he saw Mr. Marion between the time the police took him away for this incident and the day of the fire. [ 25 ] Mr.

Robertson also testified that he mowed the lawn at the residence and was aware that there was gasoline stored at the residence. [ 26 ] The Crown also called Constable Brand, a three-year member of the RCMP. She testified that on December 11, 2011, she attended at 2772 Merritt Road in response to the complaint from Mr. Robertson about Mr. Marion. She said that she arrived at approximately 7 p.m., and after speaking to Mr. Robertson and Mr. Stoney, she went to the middle level apartment and spoke to Mr. Marion. Mr. Marion let her into the apartment. There was nobody else in the apartment when the police came in.

Constable Brand had dealt with Mr. Marion earlier that day on an unrelated call and had given him a ride home as he appeared to have a leg injury. She testified that Mr. Marion's demeanour at that point was normal, and while she could smell liquor on him, she did not think he was intoxicated. [ 27 ] Constable Brand testified, however, that when she returned to the Merritt Road residence, Mr. Marion's demeanour had changed. His eyes appeared to be dilated, and he was bumping into walls when he walked.

She also said his hand movements were very animated, and she testified that he was not making much sense. [ 28 ] Constable Brand testified that at one point Mr. Marion got up and showed her a gas can in his residence. The constable also located what she believed to be a crack pipe in his residence, and Mr. Marion was ultimately arrested with regard to this incident. [ 29 ] Constable Brand had a conversation with Mr.

Marion; however, the Crown elected not to call this on a voir dire, and in my view, the statements are inadmissible and I place no weight on them. [ 30 ] The Crown called Firefighter Captain Darren Hauck who arrived at the fire scene at approximately 3:12 a.m. Captain Hauck and Firefighter Hickey did a search of the residence starting on the top floor. They also did a search of the middle floor suite where they found a 20-pound propane bottle sitting on the open door of the oven in that suite. The propane bottle was on its side.

Captain Hauck checked the bottle to ensure that it was not leaking and then Firefighter Hickey took the bottle outside. [ 31 ] The Crown called Firefighter Darren Andreychuk, who testified that they had to force open the front door on the main floor of the residence to gain access to it. He also confirmed that he saw Firefighter Hickey carry out a 20-pound propane bottle. [ 32 ] The Crown called Firefighter Ken Foisey.

He testified that he went into the residence and on the main floor level suite found a red jerry can which he estimated would hold approximately two gallons of liquid sitting in the bathtub of the bathroom on that floor. He did not touch the jerry can at that time and left it for investigative purposes. [ 33 ] The Crown also called Firefighter Dean Hickey. He testified that he saw the 20-pound propane bottle in the kitchen of the main floor level suite of the residence sitting on the open door of the oven. He testified that the propane bottle was definitely not empty,

though he could not say whether it was full. [ 34 ] Firefighter Dean Hickey also testified that when they were searching the middle level suite, there was a doorway that went to the outside that he was unable to open. He could not say, however, whether or not it was locked. [ 35 ] The Crown called Deputy Chief Blake King. He testified that when they went into the main door of the residence they located a door to the basement.

However, there was significant debris in front of that door which would impede access through it. [ 36 ] Constable Dela Torre, a four-year member of the RCMP, testified that he received a call at 2:52 a.m. on January 7, 2012, of a complaint of a male knocking on doors on Lansdowne Road. He arrived at the scene at approximately 3:01 a.m. and observed a male at a bus stop on the corner of Lansdowne Road and Ferry Avenue who was carrying a duffel bag. That male was identified as the accused, Mr. Marion. The constable testified that Mr. Marion appeared to have some difficulty walking as he was limping on one foot.

He was later joined by Constable Christinger. Constable Dela Torre described Mr. Marion's demeanour as polite and cooperative, and after determining that Mr. Marion was a person of interest to the police, he asked to search the duffel bag that Mr. Marion had in his possession. Mr. Marion agreed that the police could search his duffel bag. [ 37 ] Mr. Jones, on behalf of Mr. Marion, stated that there was no Charter issues with the search of the duffel bag and also agreed that Mr.

Marion consented to the search. [ 38 ] When the duffel bag was opened, Constable Dela Torre, who was approximately five feet away, noticed a strong odour of gasoline coming from the bag. Constable Dela Torre then arrested Mr. Marion on charges of arson and murder. [ 39 ] Constable Christinger, who is a five-year member of the RCMP, testified that he came on duty at approximately 6 p.m. on January 6, 2012, and he had noted that it was lightly snowing at that time.

At approximately 3:05 a.m. on January 7, 2012, Constable Christinger attended at a location at Lansdowne Road and Ferry Avenue where he arrived at approximately 3:08 a.m. He testified he saw Mr. Marion at that location as well as Constable Dela Torre. He also testified that it is approximately one kilometre as the crow flies from that location to the location of the residence on Merritt Road. [ 40 ] He testified that when the duffel bag of Mr. Marion was opened, he detected a very strong odour of gasoline which he described as overwhelming. [ 41 ] After Mr.

Marion was arrested, Constable Christinger, who had made note of Mr. Marion's footwear impressions in the snow, attempted to track those footprints. He testified that he followed footprints he believed to be those of Mr. Marion across Lansdowne Road through the municipal cemetery and across Highway 16 to the parking lot of the Costco Wholesale store. [ 42 ] Once he arrived at the Costco store, he was unable to follow the footprints any further.

He did find some other footprints on the other side of the parking lot on Wiebe Road that he thought were similar to those that he had been tracking. [ 43 ] The constable, on cross-examination, agreed that he did not smell any gasoline on Mr. Marion's person. [ 44 ] The constable was not tendered as an expert in footprint tracking. He also could not say when the snow stopped falling that evening. There is clearly no way to determine when the footprints were made. At best, all that can really be said is that some footprints similar to Mr.

Marion's appeared to be going from this location on Lansdowne Road to the Costco parking lot, which is in the vicinity of the residence on Merritt Road. [ 45 ] That was the evidence admitted and called on this trial. The accused, Mr. Marion, as is his right, did not call any evidence. [ 46 ] With regard to Count Number 1 on the indictment, the applicable provisions of the Criminal Code read as follows: 222.

(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being, (

a) by means of an unlawful act; (

b) by criminal negligence; [ 47 ]

Section 234 of the Criminal Code reads: Culpable homicide that is not murder or infanticide is manslaughter. [ 48 ]

Section 236 reads: Every person who commits manslaughter is guilty of an indictable offence . . . [ 49 ] The essential ingredients that the Crown must prove beyond a reasonable doubt for Count Number 1 are: first, that Mr. Marion is the person who actually committed the offence as set out in the indictment; second, the time and place as set out in the indictment; third, that Mr. Marion committed an unlawful act; and fourth, that the unlawful act caused the death of Mr. Jawanda.

[ 50 ] In this case, by admissions of fact, Mr. Marion has admitted that on January 7, 2012, the dwelling house located at 2772 Merritt Road, Prince George, British Columbia, was substantially damaged by fire and that the fire was intentional set by some person and, as such, constitutes

an act of arson as defined in s. 434 of the Criminal Code of Canada , which is an unlawful act; finally, that the fire was the cause or a substantially contributing cause of the death of Mr. Jawanda, who died on January 7, 2012. [ 51 ] The only issue on Count Number 1 is whether or not Mr. Marion is the person that started this fire. [ 52 ] With regard to Count Number 2 on the indictment, the applicable provisions of the Criminal Code read as follows: 219.

(1) Every one is criminally negligent who (

a) in doing anything, or (

b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, “duty” means a duty imposed by law. [ 53 ]

Section 220 of the Criminal Code reads: 220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence . . . [ 54 ] The essential ingredients that the Crown must prove beyond a reasonable doubt for Count Number 2 are as follows: first, that Mr. Marion is the person who actually committed the offence as set out in the indictment; second, the time and place of the offence as set out in the indictment; third, that Mr. Marion's act or conduct caused the death of Jagdev Singh Jawanda; fourth, that Mr.

Marion's act or conduct was a marked and substantial departure from the standard of care of a reasonable person in the circumstances; and fifth, that Mr. Marion's act or conduct showed a wanton or reckless disregard for the lives or safety of Mr. Jawanda or others. [ 55 ] In this case, again, the time and place of the offence is admitted. The act of arson is admitted, as well as the fact that the fire caused the death of Mr. Jawanda.

Also, there is little question that a person committing arson or setting a fire in their residence in the middle of the night that is occupied by other persons is a marked and substantial departure from the standard of care of a reasonable person. Such

an act also clearly shows a wanton or reckless disregard for the lives or safety of other persons, in particular, those persons in the residence. [ 56 ] Like Count Number 1, the only issue is whether or not Mr. Marion is the person that started the fire. [ 57 ] With regard to Count Number 3 of the indictment, the applicable provisions of the Criminal Code read as follows: 433. Every person who intentionally or recklessly causes damage by fire or explosion to property, whether or not that person owns the property, is guilty of an indictable offence . . . where . . . (

b) the fire or explosion causes bodily harm to another person. [ 58 ] The essential ingredients that the Crown must prove beyond a reasonable doubt for Count Number 3 are as follows: first, that Mr. Marion is the person who actually committed the offence as set out in the indictment; second, the time and place of the offence as set out in the indictment; third, that Mr. Marion caused damage to 2772 Merritt Road, Prince George, British Columbia, by fire; fourth, that Mr.

Marion intentionally or recklessly caused the damage by fire; and fifth, that the fire caused bodily harm to Jagdev Singh Jawanda. [ 59 ] Again, the only issue is whether or not Mr. Marion was the person that started that fire. [ 60 ] As I said at the outset of this judgment, this case is based on circumstantial evidence. The Crown argues that based on the admissions made by the accused and the evidence on this trial, the only conclusion that can be made is that Mr. Marion started this fire which caused the death of Mr. Jawanda.

They argue that the Crown has proved all of the offences beyond a reasonable doubt. [ 61 ] Mr. Jones, on behalf of Mr. Marion, concedes that there is no doubt that the fire was deliberately set and that it caused or was the proximate cause of the death of Mr. Jawanda. Mr. Jones, on behalf of Mr. Marion, also concedes that the search of the duffel bag of Mr. Marion was by consent; however, he points to the fact that neither of the arresting officers smelled gasoline on the person of Mr. Marion but, rather, only coming from the bag. [ 62 ] He notes that there was a crack pipe seized from Mr.

Marion and that some of Mr. Marion's behaviour was erratic and could lead to the conclusion that he was a drug user; also, that there may have, in fact, been other persons who wanted to collect a drug debt from him and that those persons could have set a fire as a message to Mr. Marion. [ 63 ] Mr. Jones pointed to the fact that there is not any specific evidence that Mr. Marion attended back to the residence on Merritt Road after his arrest on December 11, 2011. Mr. Jones also argues that there is evidence that Mr. Marion had an injury to his leg which may have slowed him down in terms of walking.

There is evidence that Mr. Marion appeared to have a limp; however, there is no evidence in my view that this impaired his ability to walk or the speed at which he could walk. [ 64 ] Mr. Jones also argues that it does not make any sense that Mr. Marion, if he was trying to cover up an arson, would be pounding on doors on Lansdowne Street at 2 a.m. in the morning, a location close to his residence. [ 65 ] It is the Crown's burden to prove Mr. Marion's guilt beyond a reasonable doubt. In Watt's Manual of Criminal Evidence , 2006, David Watt, Carswell Toronto, the author points out the following:

Where evidence is circumstantial, it is critical to distinguish between inference and speculation. Inference is a deduction of fact that maylogically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be noinference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts fromwhich an inference may be drawn, there can be no inference, only impermissible speculation and conjecture. [66] The Supreme Court of Canada, in the decision of R. v.

Cooper (1977), (SCC), 34 C.C.C. (2d) 18, states thefollowing: It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must besatisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. [67] In this regard, the court agreed with the chief justice in his rejection of the Hodge's formula as an inexorable rule of law inCanada. [68] In this case, I find the Crown has proven the following facts: 1.

The fire that damaged the residence at 2772 Merritt Road, Prince George, British Columbia, was deliberately set. 2. The deceased, Mr. Jawanda, died as a result of smoke inhalation and the cause of that was the fire. 3. The fire was started with the use of an accelerant which was poured on the mattresses in both bedrooms in the main floor suite. Those bedrooms were located on the west side of the residence and the northeast side of the residence.

Based on the evidence of thejerry can which had gasoline in it and was found on the main floor suite in the bathroom, and the fact that Captain Profeit detectedhydrocarbons in both bedrooms where the fire originated, I have concluded that the accelerant used was gasoline. 4. I accept the evidence from Mr. Stoney and Mr. Robertson that Mr. Marion lived on the main floor or middle suite of the residence,and I find, based on all of the evidence, that he was living there at the time of the fire. I also find that Mr. Marion had said he was goingto burn down the residence on December 11, 2011. 5.

I accept the evidence of Constable Brand that Mr. Marion, on December 11, 2011, was acting erratically when she attended at hishome and that he showed her a jerry can in his suite. 6. I find that there is no evidence that Mr. Marion's suite at the residence at 2772 Merritt Road was broken into by any person onJanuary 6 or January 7, 2012. 7. I have no evidence as to the specific time that the fire occurred. 8. I have no evidence as to how Mr. Marion or when Mr. Marion arrived at his location where he was ultimately arrested on January 7,2012, on Lansdowne Road. 9.

I accept the evidence of Constables Dela Torre and Christinger that they smelled a strong odour of gasoline coming from the duffelbag that Mr. Marion had in his possession on the morning of January 7, 2012, when he was arrested. 10. I accept the evidence admitted by Mr. Marion of the forensic analysis of the jeans he was wearing when he was arrested which foundgasoline on those pants. 11. I accept the evidence of Constable Christinger that where he found Mr. Marion on the morning of January 7, 2012, was a locationapproximately one kilometre as the crow flies from the residence at 2772 Merritt Road. [69] Mr.

Marion, prior to the fire being set at 2772 Merritt Road, said that he was going to burn the house down. The fire wasclearly and intentionally lit with gasoline. There was a propane bottle found by firefighters on the open door of the oven in the kitchen inMr. Marion's suite and a jerry can with gasoline in it found in the bathroom of Mr. Marion's suite. These are strong indicators that theperson who lit the fire was trying to cause extensive damage to the residence. [70] Mr. Marion was found a kilometre away from his residence by the police.

There is no evidence that the home on Merritt Road,and in particular Mr. Marion's suite, was broken into prior to the fire being set. [71] Mr. Marion had gasoline on his jeans and a very strong smell of gasoline emanated from his duffel bag when the police openedit. [72] Based on all the evidence, the only reasonable inference that I can come to is that Mr. Marion is the person that set the fire at2772 Merritt Road. I find the Crown has proved beyond a reasonable doubt the essential elements of the offences as charged on theindictment. In particular, the charges against Mr.

Marion, Count 1, manslaughter, I find him guilty; on Count 2, criminal negligencecausing death, I find him guilty; and on Count 3, causing damage by fire to property and thereby causing bodily harm to Mr. Jawanda, Ifind him guilty. (SUBMISSIONS RE s. 672.11(

b) ASSESSMENT) [73] THE COURT: Mr. Jones, on behalf of Mr. Marion, has made application pursuant to s. 672.11(

b) of the Criminal Code that Iorder that Mr. Marion be assessed, in particular, his mental condition, to determine whether or not he was suffering from a mentaldisorder so as to be exempt from criminal responsibility at the time of this alleged offence. [74] Basically, Mr. Marion’s behaviour, in terms of the incidents of December 11, 2011, I think can rightfully be described asbizarre, that is, going down to his neighbour's suite, Mr. Stoney and Mr. Robertson, and trying to get into that suite and, in effect, rantingand raving about people seeking to harm him. It is also noteworthy that Constable Brand, who had seen him earlier in the day, did not

notice anything particularly peculiar about his demeanour until she returned the second time, at which point, she did notice things, that he appeared to be certainly in a different state. Whether that was through intoxication or not is not clear. [ 75 ] Also, on the date of the fire and the commission of this offence, I suppose it is trite to say what occurred not only was tragic and horrible but bizarre. Also, the actions of Mr.

Marion at 2:52 in the morning banging on doors on Lansdowne Street is bizarre, though I note Crown's comments that when the police attended to him, he was polite, cooperative and, in effect, making sense for most of their dealings with him. [ 76 ] There was a report prepared by Dr. Stuart Lax, who is a psychiatrist with the forensic psychiatric hospital in Coquitlam, British Columbia, through Forensic Psychiatric Services. The date of that report is February 9, 2012. Paragraph 38 of that report reads "Appreciation of the Nature and Quality of the Act." Dr. Lax says: This is difficult to assess as Mr.

Marion has denied that he committed the offences in question. At the same time, he denied remembering much in the way of details regarding the night he was arrested because he was intoxicated. If the Court determines that the index offence occurred as outlined in the report to Crown Counsel, then it is my clinical opinion that Mr. Marion was not suffering from a mental disorder to the point that he was rendered unable to appreciate the consequences of his actions. [ 77 ] That is primarily the Crown's objection to an assessment. However, Crown did very fairly point out, and it is in paragraph 41 of Dr.

Lax’s report where he goes on to say: During the current assessment, Mr. Marion denied any involvement in his alleged charges or any detailed memory of the events around the day in question. In the absence of an agreed statement of facts and in light of Mr. Marion's inability to recount many details of the day in question, this NCRMD assessment and opinion should be regarded, therefore, as limited. [ 78 ] I do have considerable discretion and latitude in the ordering of the assessment. Taking into account the submissions made by both counsel and the report of Dr.

Lax, and the circumstances of this case, in particular the evidence of Mr. Marion's behaviours from December leading up to this incident, and primarily because Dr. Lax qualifies his opinion, in my view, the fair thing to do would be to order the assessment. So I am going to order an assessment pursuant to s. 672.11 (

b) to determine whether or not Mr. Marion, at the time of the commission of this offence, was suffering from a mental disorder so as to exempt him from criminal responsibility by virtue of subsection 16(1) of the Criminal Code . [ 79 ] Mr. Marion, this will be an in-custody assessment. (SUBMISSIONS) [ 80 ] THE COURT: All right. Well, we will do that then, adjourn the matter to May 6, 2013, for the purpose of fixing any further dates to see whether or not the report is done by that point. As I said, Mr. Marion is remanded in custody, though he is not required for that appearance. “R. S. Tindale, J.”