IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Dosanjh, |
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2018 BCSC 1153 |
Date: 20180713
Docket: 27209
Registry: Vancouver
Regina
v.
Surjit Singh Dosanjh
Before: The Honourable Mr. Justice Voith
Reasons for Judgment
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Counsel for the Crown: |
D. Porte A. Spence |
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Counsel for the Accused: |
E. Duncan F. Nejatali |
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Place and Date of Trial: |
Vancouver, B.C. January 15-31, February 1-28, March 1-8, 19-23, May 10-11 and July 13, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. July 13, 2018 |
a) Relevant Statutory Provisions
b) The Elements of Second Degree Murder
d) Credibility and Reliability
e) The Court can Accept Some, None or All of a Witness’s Evidence
g) The Cumulative Effect of Evidence
The Structure of these Reasons, Review of the Salient Evidence and of the Conflicts in that Evidence
2. The Circumstances of the Fire
4. The Evidence of L.L., G. and the Accused
a) The Period from January to March 2015
i) The Accused Moves into the Algonquin Drive Home
e) The Events of April 8 to 10
iii) E.L.’s Hyundai Sante Fe is Vandalized
ii) L.L. and Mr. Dosanjh have a Conversation
iii) The Police attend at the Residence for the First Time that Day
iv) The Accused goes to Mr. Dobson’s House
v) Constable Adams’ Second attendance at the Residence
vi) Mr. Dosanjh goes to the Home of Ms. Pollard and Mr. Hadley
vii) Later in the Evening on April 12
ii) Did the Accused Believe that K. was Sleeping Elsewhere that Night?
iii) Mr. Dosanjh and G. go to the Residence
iv) The Evidence of Ms. Parent and Mr. Watson.
b) The State of E.L.’s Mental Health
ii) E.L.’s State of Mind in the Last 3-4 Weeks
iii) E.L.’s Mental State on April 12
c) The Toxicology Evidence that Relates to E.L.
b) The Second Phase of the Investigation - Mr. Reed’s Work
i) Qualifications and My Impressions of Mr. Reed’s Evidence
a) Unlawful Act – Was the Fire Set or Was it Accidental?
a) Who Caused the Fire? … The Issue of Identity
[1] The accused, Mr. Surjit Singh Dosanjh, stands charged with the 2nd degree murder of his mother-in-law, E.L., and of his son K. Both E.L. and K. died in a fire in their home, part of a four-plex dwelling that was located at 10140 Cornerbrook Crescent (the “Cornerbrook House”), Richmond, British Columbia in the early hours of April 13, 2015.
[2] The trial of this matter occupied 43 days. The Crown called approximately 30 lay, expert, police and other witnesses. Numerous Admissions of Fact were filed. The accused also gave evidence and called one witness.
[3] The accused and his common-law wife L.L., who are now 40 and 36 years old respectively, met when they were 18 and 15 years old, respectively. Their relationship continued until the spring of 2015. They had three children. G. was 16 at the time of the fire, K. was 13 years old when he died, and A. was two years old.
[4] The family had moved into the Cornerbrook House in July 2013. E.L. and her husband, Ian, had divorced nearly 20 years earlier. E.L. had lived with the accused’s family for much of each year. She appears to have also gone to Montréal and Ottawa regularly, for extended periods, to spend time with other family. E.L. was 66 years old at the time of her death. She had retired, from a career in teaching, the previous year.
[5] Ian also had an ongoing though more distant relationship with the family. He was particularly close to K. and they often spent time together.
[6] It is common ground that the relationship between Mr. Dosanjh and L.L. had been angry and dysfunctional for many years. Mr. Dosanjh had often left the family home for one or two nights at a time. On at least three occasions he had left for longer periods of time of up to several weeks. On each occasion it appears that it was L.L. who would find him and persuade him to return.
[7] The couple often argued. They were loud. They swore at each other. They called each other names. These arguments extended to E.L. who also regularly argued with the accused and sometimes with her daughter. The arguments, in later years, also extended to their oldest son G. These various exchanges, between these various participants, were frequent and they were often loud, vulgar and abusive.
[8] The nature of these various exchanges were confirmed by the accused, by L.L., by G., and by various neighbours who also lived in the four-plex and who either heard or saw the various family members interacting with each other.
[9] The reasons for these arguments were many and varied. Mr. Dosanjh had struggled with a drug addiction, which I will return to, for many years, and L.L. continued to believe that he was using various illicit street drugs in the spring of 2015. L.L. had an obsessive-compulsive disorder that affected some of her behaviours, that was a source of frustration for Mr. Dosanjh and that was a source of friction between the couple. Mr. Dosanjh often felt that L.L. did not do enough to help with the children or in the home. He felt that she spent too much money. The couple argued about their relationship, their children and about E.L.
[10] There were also arguments about religion. The accused is South Asian and Sikh. L.L. is Caucasian and is Jewish. Mr. Dosanjh had a significant and increasing interest in Sikhism. I say that Mr. Dosanjh had an increasing interest in his religious roots because the religious upbringing of the couple’s first two children, G. and K., appears to have been less of an issue. Mr. Dosanjh was determined, however, that A. would be raised as a Sikh, that his hair would not be cut and that he would learn Punjabi. Some of these issues were a source of friction between the accused and both L.L. and E.L. There were arguments between the accused and E.L. about the religion of the children and about how they should be disciplined. Mr. Dosanjh said that “there were passions and beliefs involved”. These exchanges were again often quite heated. The participants would raise their voices, would swear, would call each other names, and would, from time to time, “get in each other’s faces”. E.L. had, in the past, threatened to have the accused deported. After some period of time life would again resume until the next such exchange.
[11] L.L. testified that the last five years of the couple’s relationship was very rocky and “up and down”. She said that in the last year of the couple’s relationship the accused did not generally sleep in the couple’s bedroom. Instead, Mr. Dosanjh slept on the couch in the living room or on a futon that was set up in an enclosure on the back deck of their apartment. L.L. said that the couple barely communicated, that she was very unhappy and that she would simply stay in her room and watch television.
[12] In January 2015 L.L. enrolled in a formal and apparently rigorous counselling program (the CORE program) that took place for several hours each day, at a nearby hospital. That continued for a period of approximately three months. L.L. sought to address her anxiety and her compulsive disorder. The accused was supportive of her attending the program. He said that he believed he had made a greater effort to work on the couple’s relationship during this period of time.
[13] L.L. did not disagree but her program caused her to reflect on her life and on her choices. Her perception was that the relationship was getting worse and worse. She said that the accused’s drug use was getting worse during the period from January to March, 2015 and that they argued every day. She was not intimate with the accused and she felt that he had no involvement in the family’s activities. She wanted A. to grow up in a better and different environment than his older brothers had.
[14] L.L. decided to leave the relationship and she communicated this to the accused. L.L. placed this conversation in the latter part of March. Mr. Dosanjh said that it occurred on March 31. The respective positions of L.L. and the accused about what transpired over the next two weeks is quite different, is important and is something that I will return to and address in greater detail. For present purposes what is important is that L.L., for various reasons, came to perceive the accused’s conduct as threatening, obsessive, and jealous. This resulted in her eventually seeking shelter, with A., and with the assistance of the police, in a transition house, at about 6:00 p.m. on Sunday, April 12 or about eight hours before the fire.
[15] The position of Mr. Dosanjh about this two-week period of time was more benign. He was initially upset that L.L. had chosen to end the relationship because he felt he had been trying harder and because he was concerned about his ongoing relationship with the children. He was, however, generally accepting of L.L.’s decision, he regarded the decision as “mutual” and he was taking steps to get on with his life.
[16] It is common ground that in early April 2015 Mr. Dosanjh was hospitalized for a few days though L.L. and Mr. Dosanjh gave different evidence for why that occurred.
[17] It is also clear that for about the week prior to the fire Mr. Dosanjh lived at the home of Ms. Cheema. Ms. Cheema was the grandmother of Jayedan D. Jayedan lived with, and was being raised by, his grandmother and his aunt Ms. Khela. Jayedan and G. were best friends and they often slept at each other’s homes. Because Mr. Dosanjh had nowhere to stay, in early April Ms. Cheema allowed Mr. Dosanjh to stay in one of the rental suites that she had in her home. That home was located on Algonquin Drive in Richmond (the “Algonquin Drive Home”).
[18] Finally, it is clear that G. and the accused attended at the Cornerbrook House in the early hours of April 13, 2015, to retrieve some of the accused’s possessions. Their respective evidence of what took place while they were in the family residence is, however, different in several material respects. What is clear is that the fire broke out within some minutes of their leaving their suite in the Cornerbrook House.
[19] The key issues are whether the fire at the Cornerbrook House occurred spontaneously and without any direct human involvement or, alternatively, whether it was an “incendiary” fire. When I use the word “incendiary” in these reasons I use it in the technical sense, as explained at trial, of a fire that has been set by a person. If the fire at the Cornerbrook House was an incendiary fire the question is whether it was set by the accused or, alternatively, by E.L. who had a history of depression and who was upset by the events of the days or weeks that preceded April 13, 2015. Finally, if the fire was set by the accused the question is whether he meant to cause E.L.’s death or to cause her bodily harm that he knew was likely to cause her death and was reckless about whether or not his actions caused her death.
[20] The issues in this case require the examination and application of various sections of the Criminal Code, R.S.C., 1985, c. C-46:
Homicide
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;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.
Murder
229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
Second Degree Murder
231 (1) Murder is first degree murder or second degree murder.
…
(7) All murder that is not first degree murder is second degree murder.
Manslaughter
234 Culpable homicide that is not murder or infanticide is manslaughter.
[21] To secure conviction for second degree murder, the Crown must prove the following:
· First, that the accused is the person who actually committed the offence of second degree murder.
· Second, that the offence of second degree murder occurred at the time and place set out in the indictment.
· Third, that Mr. Dosanjh committed an unlawful act, here the lighting of the fire.
· Fourth, that the unlawful act caused the death of E.L. and/or K.
· Fifth, that in relation to both or at least one of the deceased, Mr. Dosanjh either meant to cause that death, or meant to cause bodily harm that he knew was likely to cause death and that he was reckless about whether or not his actions caused death.
[22] Of these various elements, time and place and causation are not in issue, while each of identity, unlawful act and intent are at issue.
[23] To constitute a culpable homicide, the Crown must prove that the accused caused the death of each of the deceased by means of an unlawful act. In this case, the Crown alleges that the accused accomplished this by intentionally setting a fire in the master bedroom of the upper suite of 10140 Cornerbrook Crescent, Richmond, B.C.
[24] In relation to this issue, there are two “avenues” to acquittal in the circumstances of this case.
[25] First, if the Crown is unable to prove beyond a reasonable doubt that the fire was intentionally set, the Court must acquit the accused and there would be no need to consider the issues of identity or mens rea. Second, if the Crown proves the fire was set intentionally, but is unable to prove, beyond a reasonable doubt, that it was the accused who set the fire, then the Court must acquit the accused and there is no need to consider the mens rea of the offence.
[26] If the Crown proves beyond a reasonable doubt that Mr. Dosanjh intentionally started the fire, then to secure conviction, the Crown must also prove the mens rea of the offence. The mens rea of second degree murder is accomplished in either of two ways:
· By proving that when he set the fire, the accused intended to cause death to either or both of E.L. and K.; or
· By proving that the accused set the fire (1) meaning to cause bodily harm to either or both of E.L. and K., (2) that the accused knew the fire he set was likely to cause that person’s death, and (3) the accused was reckless whether death ensued or not.
[27] If the Crown proves that the accused intentionally set the fire with either of these mental states in relation to only one of the two deceased, for example E.L., but not the other, for example K., then s. 229(b) would make him guilty of the second degree murder of this second “unintended victim”; Droste v. R., [1984] 1 S.C.R. 208).
[28] If the Crown is unable to prove either of these mental states beyond a reasonable doubt, then the Court must acquit the accused of the charge of second degree murder, and in the circumstances of this case, move on to consider manslaughter.
[29] In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court, at paras. 36-37, proposed a model charge that described what constitutes reasonable doubt. That model charge emphasized that an accused is presumed innocent, that the presumption of innocence remains the same throughout a case and that the burden to prove all essential elements of an offence beyond a reasonable doubt rests, at all times, on the Crown.
[30] The Court, at para. 39, said:
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based on the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
[31] In R. v. Starr, 2000 SCC 40, the Court said:
242 In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities.... It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards.
See also R. v. Avetysan, 2000 SCC 56 at para. 10.
[32] Though the Crown must prove each element of an offence beyond a reasonable doubt, that standard of proof does not apply to each piece of evidence in isolation. In R. v. Morin, [1988] 2 S.C.R. 345, Sopinka J., at para. 49, explained that proof beyond a reasonable doubt does not apply to the individual items of evidence or the separate pieces of evidence in the case, but to the total body of evidence upon which the Crown relies to prove guilt. Justice Cromwell restated this principle more recently in R. v. J.M.H., 2011 SCC 45 at para. 31, where he wrote, “it is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole”.
[33] The distinction between reliability and credibility, each of which is relevant to an assessment of a witness’s evidence, was explained in R. v. H.C., 2009 ONCA 56, where Watt J.A. said:
[41] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately
i. observe;
ii. recall; and
iii. recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, at 526 (C.A.).
[34] It is open to a trier of fact to accept some, all or none of a witness’s testimony. In R. v. Langlet, 2013 BCSC 2274, the Court cited R. v. Mathieu (1994), 90 C.C.C. (3d) 415 (Que. C.A.) aff’d [1995] 4 S.C.R. 46:
61 In determining whether this burden has been discharged, triers of fact remain free, as they have always been in the past, to accept all, part or none of the evidence of any witness, called by either the prosecution or the defence. The evidence of each witness must be considered in the light of all the other evidence. And the test for conviction is whether, on the whole of the evidence, the trier of fact is satisfied that the prosecution has discharged its burden of establishing guilt beyond a reasonable doubt — not whether the accused, if he or she does testify, has made a plausible defence or furnished evidence that might reasonably be true.
[35] In R. v. Villaroman, 2016 SCC 33, Cromwell J., at paras. 20-22, for the Court, confirmed that there is no formulaic or mandatory instruction that is relevant to circumstantial evidence. It is important, however, to be aware of the “dangers of the path of reasoning” involved in drawing inferences from circumstantial evidence (at para. 29). Accordingly, it remains important to recall that an inference of guilt drawn from circumstantial evidence should be the “only reasonable inference that such evidence permits”: Villaroman at para. 30. See also R. v. Griffin, 2009 SCC 28 at para. 33.
[36] In R. v. Smith, 2016 ONCA 25, Watt J.A. succinctly said:
81 The second principle assumes particular significance when, as here, arguments are advanced that individual items of circumstantial evidence are explicable on bases other than guilt. It is essential to keep in mind that it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361; R. v. Uhrig, 2012 ONCA 470, at para. 13.
82 Often, individual items of evidence adduced by the Crown examined separately lack a very strong probative value. But it is all the evidence that a trier of fact is to consider. Each item is considered in relation to the others and to the evidence as a whole. And it is all the evidence taken together, often greater than the sum of individual pieces, that is to be considered and may afford a basis for a finding of guilt: Uhrig, at para. 13. See also: Côté v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.
[37] Mr. Dosanjh gave evidence and accordingly it is necessary to consider the instruction and framework that was established in R. v. W (D.), [1991] 1 S.C.R. 742 at para. 28:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[38] Sometimes a further component is added to this framework. In R. v. C.W.H., [1991] B.C.J. 2753 (B.C.C.A.), Wood J.A., said:
24 I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit.
[39] It is important, within the context of the foregoing framework, to recognize that mere disbelief of the accused’s evidence does not satisfy the burden on the Crown. To equate disbelief of an accused’s evidence with proof of their guilt is impermissible.
[40] This trial addressed numerous issues. Some of these issues are discrete. Others are interrelated. Because of the volume of relevant evidence and because numerous witnesses addressed numerous issues I have endeavoured to address various topics discreetly, and generally in chronological order, and to make findings in relation to those issues as I address them. With those findings in hand I have then returned to the broader conclusions that I have reached based on the whole of the evidence.
[41] There are several bodies of evidence that are relevant, that can be addressed discreetly and that are not in dispute at all or in any meaningful way.
[42] An understanding of the layout of the Cornerbrook House and of the unit that the accused resided in with his family is important for several reasons. It is necessary to understand the evidence that several fire investigators and an arson expert provided. It is also necessary to better understand the evidence that each of G. and the accused gave in relation to their actions when they returned to their home on April 13.
[43] The Cornerbrook House had two upper and two lower units. Each of the two lower and the two upper units were mirror images of each other. The four-plex had two separate driveways that serviced the two sides of the structure. Each side had a carport which was covered by the upper unit on that side. If one looked at the front of the structure the two units on the left, or on the north, bore the address 10140 Cornerbrook Crescent. The two units on the right, or on the south side of the structure, bore the address 10160 Cornerbrook Crescent.
[44] The accused and his family lived in the upper suite of 10140 Cornerbrook Crescent (the “Residence”). The front door leading to that unit faced the street and was near the carport. When the front door was opened there was a flight of stairs, to the right, that led up to the Residence. To the left there was a short corridor that had some shelving on the wall, on the left, and a storage area under the stairs on the right. The storage area was for the use of Mr. Dosanjh and his family. The corridor also led to a laundry room that was shared with the tenants of the lower unit on that side of the dwelling.
[45] At the top of the stairs, working counter clockwise, was a living room with a fireplace, a dining area, kitchen, a bedroom for G., a second bedroom that had bunkbeds and that was shared by K. and E.L., a master bathroom, a linen closet by the entrance to the master bedroom, and the master bedroom itself. The master bedroom had a small ensuite bathroom and a walk-in closet.
[46] There was a deck off of the kitchen at the back of the house with stairs that led to the backyard. This is the area that Mr. Dosanjh had partially enclosed and where he had placed a cot or futon as well as some shelves. There was also a smaller deck, accessed by a set of sliding glass doors, off of the master bedroom. Those glass doors and that deck faced the front of the house and the street.
[47] An Admission establishes that the first 911 phone call, reporting the fire, was made at 2:08 a.m. on April 13. That call was made by Ms. Saunders, who lived with her two daughters in the lower unit of 10160 Cornerbrook Crescent. She and her daughters had been about to go to bed at approximately 2:00 a.m. or perhaps a little before that. Her daughter came into her room saying that the house was on fire. All three left their suite and began to alert their neighbours above and beside them. Ms. Saunders then called 911. She estimated that no more than five minutes had elapsed between when she first came out of her unit and when she called 911. At that point the fire was “huge”, it sounded as though it was “roaring” and there were masses of smoke.
[48] She said, as did several other witnesses, that she saw black smoke over the house. The tenant of the upper unit on the 10160 side of the Cornerbrook House, who gave evidence, moved his vehicle from the driveway. That vehicle had a dash cam on it which created a video of the fire. Large flames are visible shooting from the patio doors of the master bedroom in the Residence and through the roof above where the master bedroom was located.
[49] Thereafter fire, police and ambulance vehicles arrived. It is noteworthy that the smoke billowing from the fire over the area in front of the house was sufficiently thick that one of Ms. Saunders’ daughters and Ms. Parent, the neighbour who lived with her husband and daughter in the suite below the Residence, were subsequently taken to hospital.
[50] Several firefighters gave evidence and described their activities. One firefighting team was primarily charged with containing the fire. A second team was assigned to search for possible victims. Two different firefighters found each of K. and E.L. respectively and carried them from the Residence. K. was found on the floor, a few feet outside of the door to his bedroom, and with his head facing the kitchen. E.L. was found slumped in a chair in the bedroom that she shared with K.
[51] The firefighters, who all wore full protective suits and breathing apparatuses, described the heat and smoke conditions in the Residence. The “smoke line” was low meaning that there was smoke from the ceiling down to a relatively low level on the walls of the Residence. The only room in the Residence in which there were flames and flame damage was in the master bedroom.
[52] Each of K. and E.L. were passed by the fire fighter(s) who carried them out to paramedics who were waiting outside.
[53] The cause of death for K. was addressed by i) Dr. Skippen, who first treated K. when he was brought to Children’s Hospital, ii) Dr. Orde who subsequently did an autopsy of K. and iii) Ms. Dagenais who is a toxicologist. Their evidence, in relation to this issue, was clear and consistent.
[54] The cause of death of E.L. was addressed by Dr. Boone, who did an autopsy of E.L. and by Ms. Dagenais. Again their evidence, in relation to this issue, was consistent.
[55] Each of K. and E.L. had some burns on different parts of their bodies though E.L.’s burns were more extensive. Each was covered in soot from head to toe and had soot or black mucus in their noses and breathing airways.
[56] When K. was initially pulled from the Residence he had no vital signs. After some resuscitation efforts his pulse returned and he continued to breathe albeit with mechanical assistance. K.’s formal cause of death was as a consequence of brain damage due to cardiorespiratory arrest at the time of the fire, which was caused or compounded by acute carbon monoxide toxicity. Carbon monoxide is a gas that leads to decreased oxygenation of the body’s organs. K.’s carbon monoxide toxicity level was approximately 62%. Normal carbon monoxide levels are undetectable. A 50% level is considered lethal or fatal. K. made no neurological recovery and his brain death was verified on April 16. He was taken off of life support shortly thereafter.
[57] E.L’s carbon monoxide saturation level was 75%. She had soot on her tongue, in her esophagus, in her tracheal bronchial tree and in her stomach. The relevant autopsy report also states “the presence of soot throughout the tracheal bronchial tube, in combination with the carbon monoxide saturation level of 75%, is indicative that (E.L.) was alive at the time of the fire”.
[58] Each of L.L., G., and the accused was on the stand for approximately a week. L.L. and the accused gave their evidence with some testimonial accommodation. To be precise L.L. gave her direct evidence in open court but, at a certain point, prior to the start of her cross-examination, she broke down. L.L. struggles, as I have said, with both an anxiety and an obsessive-compulsive disorder. It is a given that the subject matter of her evidence was often very difficult. In addition, she found the size of the courtroom, the lights in the courtroom and the size of the gallery that was present each day distracting. For the balance of her evidence the trial was moved to a smaller courtroom and L.L. gave her evidence from behind a screen and with a support person nearby.
[59] I am satisfied that L.L. was a credible witness. She was responsive to the questions that she was asked. She was careful and she regularly paused, in both her direct and cross-examination, saying that she needed to think before she answered a question. She accepted that she and the accused often argued, that the accused loved his children, that he was a good father, that he was a good provider and that neither she nor her mother were fearful of the accused until the day or two prior to the fire. Her evidence was measured and she did not expressly or otherwise demonstrate any animus to the accused. In one instance when her evidence was inconsistent with an earlier statement she accepted that her evidence had been exaggerated. She admitted she did not recall some events but she invariably accepted that what she had earlier told the police would have been her best recollection at the time and was likely accurate. To the extent she gave evidence that was inconsistent with earlier statements or earlier evidence she invariably accepted that her earlier statements and evidence would be accurate.
[60] There are some, comparatively modest, aspects of her evidence that do not align with other objective evidence or with the evidence of other witnesses. To the extent this occurred I am satisfied that such evidence reflected lapses in memory or other considerations relevant to the reliability of that particular evidence. Furthermore this evidence, generally speaking, related to matters that were not particularly important.
[61] Mr. Dosanjh has an attention deficit disorder. The medication that he now receives for his condition helps control many of his symptoms. Nevertheless his counsel, in advance of his giving evidence, expressed the concern, inter alia, that the presence of the gallery might interfere with his ability to focus and to respond fully to the various personal and difficult issues that his evidence would address. Accordingly, I also allowed Mr. Dosanjh to give his evidence from behind a screen though he was visible to counsel and he was visible, by way of camera, to the gallery.
[62] Mr. Dosanjh’s condition has several physical and verbal manifestations. These tendencies were apparent both in a portion of the video of a police interview that I viewed as well as when he gave evidence at trial. He tends to move about and to gesture with his hands as he speaks. When he speaks he will sometimes not finish a sentence before he moves to another topic and he may then again return to the first topic. His answers were sometimes quite long and he often rambled. At times he did not respond to the question being asked of him and that question had to be asked again. Sometimes it had to be asked several times. Mr. Dosanjh often swore while giving his evidence but I did not consider him to be disrespectful of counsel or of the Court.
[63] I have, in weighing the accused’s evidence, disregarded all such mannerisms and tendencies which might, in normal circumstances, be perceived as evasive or argumentative or as nonresponsive. I have addressed Mr. Dosanjh’s evidence, and my conclusions in relation to his credibility, as I have dealt with various finite topics or issues.
[64] G., who was 19 at the time of trial, was, for self-evident reasons in a difficult position and he faced a difficult task. He was called as a Crown witness to testify against his father. Early in his direct evidence he purported to have no memory of certain key events and he asserted that neither the statements he had earlier provided to the police nor his evidence at the preliminary inquiry helped refresh his memory. The trial adjourned briefly. I explained to G. that the matters before the court were serious and that it would be wrong for him to feign a faulty memory. He returned to court the next day and he was on the stand for the next four days. I am satisfied that he thereafter endeavoured to be responsive and forthright and I consider that he was a credible witness. His answers were often succinct and sometimes consisted of no more than a simple yes or no. He did not appear to bear any animus towards his father. He was not disparaging or critical of his father, of L.L. or of E.L. At the same time there was nothing in either his manner or in the answers that he gave which indicated that he favoured or sought to assist the accused. To the extent he gave answers that were inconsistent with the statements he had earlier given the police he accepted the accuracy of his earlier statements. There were some matters that he did not recall even when he was taken to his earlier statement but he confirmed that he believed he had been honest when giving the statement. He accepted a great many of the propositions that were put to him in cross-examination. There were however some areas where he was quite firm in the evidence that he gave.
[65] The evidence which follows often gave rise to contested facts.
[66] L.L. testified that her relationship with Mr. Dosanjh became worse over the last three months or so that they were together. They argued daily. She believed he was using illicit drugs which caused them to argue more. She believed that his drug usage was particularly serious in March 2015. They did not communicate. They were not intimate.
[67] L.L. said that her relationship with her mother during this period was quite good, though she accepted that they would argue from time to time. This was particularly so in March when she perceived that E.L. sought to take on more of a parenting role. She considered that Mr. Dosanjh’s relationship with her mother remained the same. They would argue, they would swear, and they would raise their voices. Sometimes E.L. would apologize.
[68] Ms. Parent shared the unit below the Residence with her husband Mr. Watson and their daughter. Apparently they could all hear much of what went on in the suite above them and in the stairwell that led to the Residence. Those stairs were immediately adjacent to the wall of their living room. Both Ms. Parent and Mr. Watson confirmed that the members of the family above them argued all the time. Ms. Parent was of the view that things deteriorated further in the few months before the fire.
[69] She gave several examples of this. She testified to one instance, perhaps a month and a half before the fire, where she overheard the accused say to E.L. that it would “be easier to keep her out of the picture”. Part of this threat was that if E.L. was out of the picture, Mr. Dosanjh and L.L. would be happy together. Ms. Parent agreed that after Mr. Dosanjh said this E.L. taunted him to “come closer”.
[70] Ms. Parent also gave evidence of having heard the accused threaten to harm L.L. and her new boyfriend. In cross-examination, an earlier statement was put to her where she described E.L. telling her that the accused had threatened to kill L.L. if he caught her with another man and where E.L. had said that Mr. Dosanjh would have to go through her first. Ms. Parent accepted this, but she said that she had heard this threat being made separately by the accused to L.L. She said that in the six weeks before the fire, various threats were being made on an almost daily basis.
[71] On another occasion, again within a month or two of the fire, Ms. Parent overheard E.L., who was in the laundry room and who was speaking on her phone, say that she didn’t care if she went to jail for killing Mr. Dosanjh because it would be worth it.
[72] Mr. Dosanjh, conversely, testified that he believed his relationship with L.L. improved over this time. He said that he was “very happy” between January and March. He said that he had tried to be more involved with L.L. and with family activities. There was no suggestion in his evidence that his relationship with E.L. was deteriorating or getting worse.
[73] G.’s perspective of the relationships between his father, mother and grandmother was somewhat different again. He too said that all three regularly argued with each other. They would yell, swear and sometimes threaten each other. His grandmother would threaten his father. Mr. Dosanjh would then swear at her and he “talked down” to her. In his direct evidence, G. was taken to a portion of the statement that he had earlier given to the police where he had said that in the days or weeks before the fire his father had said, among other things, that he wished E.L. was dead and that “they’ll get what’s coming to them”. In his cross-examination, however, G. simply said “it was another day”. He confirmed that the accused and E.L. complained about each other “constantly” and that this was not something that he would remember.
[74] The accused and L.L. advanced slightly different chronologies of when L.L. told the accused that their relationship was over and about what ensued over the next little while.
[75] L.L. said that she told the accused that she wished to leave him within a week of his birthday which was on March 22. Mr. Dosanjh said that this occurred on March 31. Both agreed that L.L. initially told the accused that he could stay in the Residence for a month. L.L. said that over the first few days the accused came and went, sometimes sleeping at the Residence and sometimes not. She said that he constantly wanted to talk about why she had decided to leave but that he would not accept her answers. He phoned her constantly. He proposed marriage counselling and though she initially agreed she was ultimately not interested in such counselling. She was certain of the decision that she had made and she considered that this break-up was “dramatically” different from the earlier occasions when they had separated.
[76] L.L. said that one evening, Mr. Dosanjh came into the bedroom and asked her whether she was still his. She accepted that she invited him to lie down beside her because he was distressed and hurting. However, she became frustrated with Mr. Dosanjh’s behaviour and thought that his coming and going and his crying was both confusing and upsetting for the children. On April 2 she asked him to move out.
[77] Mr. Dosanjh’s evidence was quite different. Though initially upset, he said he was quite accepting of what L.L. told him. He emphasized several times that they had broken up so often in the past that this time was, in a sense, simply more of the same. He said that because of the frequency with which this had happened in the past it was “like a joke”. Mr. Dosanjh had told L.L. in the past that the next time he left he would not come back and he said that he went about making his preparations to leave. He said he did not care if L.L. came back. He denied that L.L. kicked him out and said that he had decided to leave.
[78] Both L.L. and Mr. Dosanjh agreed that he had asked her to confirm that the children would never call another man “dad” and that he would always be able to see the children. They disagreed, however, about the contents of one or more other conversations. L.L. said that she had asked him about each of them seeing other people. She said that the accused had told her that if he found out, a short time after they broke up, that she had a boyfriend, he would “kill her, kill him and kill his family”. On another occasion she said that he spoke about slitting a notional new partner’s throat. She denied that that latter comment, which Mr. Dosanjh admitted making, was made in the context of her bringing someone home when the accused still lived in the house because she said she would never do that. She said that the accused’s comments frightened her because she had not heard the accused speak like that in the past and because he had not previously displayed such jealousy.
[79] Mr. Dosanjh said that he had initially told L.L. that she could see someone but not for a few weeks or a month because he had originally expected to be in the Residence for a month. He said that L.L. had asked him what he would do if she brought someone home the next day and he then came home. Mr. Dosanjh said that it was in this context he said that he would slit that person’s throat. He said that it was “a hypothetical answer to a hypothetical question”.
[80] I do not accept either aspect of Mr. Dosanjh’s evidence in relation to these two issues. First, I do not accept that Mr. Dosanjh either acquiesced or concurred in L.L.’s decision to separate. This is not consistent with the Admissions filed on his behalf, with the fact that he was hospitalized on or about April 2, or with the evidence of numerous lay witnesses, that I will return to, that Mr. Dosanjh interacted with prior to April 13.
[81] Ms. Parent and Mr. Watson both said that they heard or saw things, between Mr. Dosanjh and L.L. deteriorate or become more intense in the few weeks before the fire. Ms. Parent said, and other evidence establishes, that the police were frequently at the Residence and sometimes more than once a day.
[82] Other witnesses consistently described a level of distress on the part of Mr. Dosanjh, over his personal and family circumstances, that is inconsistent with his evidence at trial. Furthermore, Mr. Dosanjh’s evidence is inconsistent with the phone records that were admitted of his telephone calls, from his cell phone, to and from L.L.’s cell phone or the phone in the Residence. L.L. said that at a certain point she blocked the calls she received from the accused. It is clear from these records that in the week before the fire L.L. called the accused infrequently.
[83] The accused suggested that these calls were the result of “pocket dials” – a “pocket dial” being a call made inadvertently when a cell phone is in someone’s pocket. Though I accept that this may have happened some times, I do not accept that this explains the frequency of the accused’s calls to L.L.
[84] I also do not accept the evidence of the accused about the limited or finite context in which he says he made the comment about slitting the throat of a man who might be with L.L. There are several reasons for this. First, as a matter of context, L.L. said she had not been intimate with another man before she told the accused she wished to separate. She did, however, begin to see someone thereafter. Her concern, when speaking to the accused, was about how he would react if he found out she was seeing someone and not about how he would react if she brought someone home while he still lived in the Residence.
[85] Second, the comments that L.L. says Mr. Dosanjh made about killing her, the man he found her with and his family, closely align with comments that I will come to and that the accused is alleged to have made to a friend of L.L.’s, Mr. Dobson, on April 12.
[86] Third, the issue of the accused’s concern with whether L.L. had a boyfriend is relevant. L.L. said that after she decided to leave him, Mr. Dosanjh repeatedly accused her of having a relationship with her counsellor, or with a policeman, with an unnamed black man, or with an old friend from her teens. Mr. Dosanjh admitted he may have said these things but said that he only made the comments to “push her buttons”. At other times he suggested that he only did so to better understand her thinking and what was motivating her behaviours.
[87] I do not accept either of these assertions. The evidence given by each of Ms. Cheema, Ms. Khela, Mr. Dobson, Mr. Watson and Ms. Pollard, another friend of L.L., was consistent. I will develop this evidence further, but for present purposes what is relevant is that in the week or two before April 13, the accused expressed significant and consistent concern, anger and distress about L.L. seeing another man, and about other issues, to each of these individuals.
[88] Between April 2 and April 6, Mr. Dosanjh was hospitalized over a concern that he was suicidal. Once again, L.L. and the accused gave different evidence about how this came to be.
[89] L.L. said that at some point the accused told her that though he could not punish her he could hurt her by hurting himself. L.L. spoke to her counsellor who told her to speak to the police. The police thereafter took the accused to Richmond General Hospital where he appears to have spent the next four days.
[90] Mr. Dosanjh said that he had been at the Residence when he had made the comment about slitting the throat of the man that he found with L.L. in the Residence. She had become angry and he went to the back deck. He said that he cooled down, came back and then posed the two questions to L.L., about their children that I identified earlier. She then asked what he was going to do and he “sarcastically” said that he was going to jump off a bridge. He then got ready for work and he got A. ready for school. It was also in the context of this conversation that the accused said that he had decided to leave the Residence immediately rather than to stay a month. Mr. Dosanjh said that the police then came to the Residence and took him to a hospital where he was sedated and where he spent the next two days. He also said he was kept in the hospital because he had no place to go.
[91] There are again various difficulties with the evidence of the accused. The context for the discussion described by the accused is inaccurate. It seems clear from the phone records that I have referred to that on the morning of April 2 the accused was not at home. Rather, he phoned L.L. several times. In addition, in an Admission of Fact, filed under s. 655 of the Criminal Code, the accused admitted:
1. On April 2, 2015, the accused Surjit Singh Dosanjh (the “Accused”) had a telephone conversation with L.L., during which he referred to killing himself. L.L. called the police and told him what the Accused had said. At approximately 9:30 a.m. that day, police officers located the Accused near the intersection of Cornerbrook Crescent and Freshwater Drive, which is a block from 10140 Cornerbrook Crescent in Richmond BC.
The Admission of Fact further states:
2. The three police officers who located the Accused saw him loading wood into his truck. They spoke with them once they arrived at the Accused’s location. Although the Accused acknowledged saying the things to L.L. about suicide, he told the police he did not feel suicidal now. One of those police officers, Cst. Zentner, told the Accused that he was concerned for the Accused’s well-being and safety which is the reason that police would be apprehending him under s. 28 of the Mental Health Act. At this point the situation escalated rather quickly as the Accused began yelling “no, I’m not going to the hospital. I don’t need to see a doctor. That dumb bitch L.L. doesn’t know what she just did. All I want to do is go to work and make money so I can move out and get my own place to live. I’m going to be homeless now. You don’t understand what you’re doing right now”. The accused also stated such things as “I don’t hurt people unless they hurt me”. The accused expressed that he was very upset with L.L. as she kicked him out of their house after 16 years of marriage. The police officers then place the Accused into their police car and transported the Accused to the root Richmond General Hospital.
[92] This latter portion of the Admission of Fact is telling because it says nothing about the accused having made a sarcastic remark to L.L., because it confirms that he was very upset with L.L., because aspects of his comments are threatening, and because it appears to confirm that it was L.L. who asked him to leave the Residence, rather than this having been a measured and mutual decision. Mr. Dosanjh also told others that L.L. had “kicked him out of the home”.
[93] No medical records were introduced that explained why Mr. Dosanjh was kept in the hospital. Nevertheless, I consider it inherently improbable that a hospital would prevent a patient, who was engaged in a matrimonial dispute, from leaving the hospital for several days without good reason for doing so. Though Mr. Dosanjh testified that he was only at the hospital for two days, it seems more likely, based on his phone records and based on when he moved into Ms. Cheema’s house, that he was at the hospital for four days or from April 2 to April 6. The evidence from various sources establishes that Mr. Dosanjh left the hospital and moved to Ms. Cheema’s house on the same day.
[94] Two other matters are relevant in this approximate timeframe. Ms. Pollard, a friend of L.L., testified that within the two-week period before the fire she understood that L.L. had told the accused that she was going to be visiting Ms. Pollard when, in fact, she was planning to be elsewhere. L.L. had asked Ms. Pollard to “cover for her” if necessary. Ms. Pollard said that at some point that evening the accused showed up at her home. Ms. Pollard phoned L.L. asking what she should do and L.L. told her to tell Mr. Dosanjh that she had just left. Ms. Pollard said that Mr. Dosanjh inquired about whether L.L. was there and that he either mentioned that he believed she had a boyfriend or he inquired about whether L.L. had a boyfriend. He also discussed religion and talked about “gurus and warriors” and matters that Ms. Pollard did not understand. Ms. Pollard was asked in cross-examination whether her husband, Mr. Hadley, both smoked and sold marihuana. She confirmed that he did smoke marihuana but said that he did not, to her knowledge, sell marihuana.
[95] Mr. Dosanjh gave different evidence. He said that L.L. had told him she was going to Ms. Pollard’s house for some pizza and he should drop by later if he wanted to. He said that he also owed Mr. Hadley some money and that he wished to buy some marihuana from Mr. Hadley. He said that when he arrived at Ms. Pollard’s home he gave her money, which she took upstairs and she then returned with some marihuana.
[96] I do not accept the accused’s evidence. First, it is inherently unlikely that if L.L. was seeking to deceive Mr. Dosanjh about her whereabouts, she would invite him to drop by Ms. Pollard’s home. Still further, it is unlikely that L.L. would have extended such an invitation to the accused after she had told him that she wished to separate. Furthermore, Mr. Dosanjh almost never interacted with L.L. and her friends. He had never been to Ms. Pollard’s home before. Finally, Mr. Dosanjh’s evidence suggests that Ms. Pollard had some involvement in selling marihuana. There was no suggestion of this in her direct evidence or in her cross-examination.
[97] Second, Mr. Watson testified that about a week before the fire he was washing his car while Mr. Dosanjh was off-loading some lumber. Mr. Watson said that he had no friendships with the people who lived in the Residence. Nevertheless, Mr. Dosanjh communicated to him that “he had a lot on his mind” and that L.L. “was seeing someone”. Mr. Watson said that Mr. Dosanjh seemed upset and depressed.
[98] L.L.’s father, together with G. and K., picked up the accused from Richmond General Hospital and drove him to the Residence to get his truck and some other things. G. had told Jayedan that his father needed a place to stay. Jayedan, in turn, had communicated this to his aunt and grandmother. On the evening of Monday, April 6, Mr. Dosanjh met with Ms. Cheema and Ms. Khela. Mr. Dosanjh rented a room in one of the suites in the Algonquin Drive Home. Ms. Cheema and Mr. Dosanjh appeared to establish a good relationship. She said he was respectful of her, that he would come upstairs in the morning to have tea with her and that she sometimes cooked a meal for him. They had a number of conversations over the ensuing week.
[99] Ms. Cheema said that the accused was very upset and very hurt. He wanted to tell her “all about his pain”. She repeatedly said that he was “angry”, that he was “very angry”, that he was “angry for everything”. He had been “kicked out”. His family was falling apart, he wanted his wife and children together, he wanted to be close to his children, things were out of his control.
[100] In her cross-examination, Ms. Cheema said that Mr. Dosanjh had said that he could not stand being without his wife, that he loved her, that it was hard for him to accept that his family was falling apart and that he missed seeing his two younger sons.
[101] She said that the accused was angry with both L.L. and E.L. He was angry with L.L. because she wanted to cut A.’s hair so that he would be like his brothers. The accused, conversely, wanted A. to stay in the Sikh faith.
[102] Ms. Cheema also said that the accused complained “lots” about his mother-in-law. In her cross-examination, she said that Mr. Dosanjh had expressed that E.L. was interfering in their personal matters, that she gave “the wrong guidance” and that she was not supportive of the family being together. He thought E.L. was interfering and making things worse.
[103] Ms. Khela gave somewhat similar evidence. She first met the accused on April 6 and had several conversations with him between then and April 8. On the evening of April 8 she went to Las Vegas for a few days and she returned very early on April 13.
[104] Ms. Khela confirmed that when she first met the accused he was very accommodating and that he ate with the family. She said he discussed his family’s discord every time she met with him. She said, at different points in her evidence, that he was “distraught”, “defensive”, “upset” and “angry”. He told her that he had been in a “psych ward” because of a story that had been made up by L.L. She said he was concerned that his mother-in-law spent a lot of time with the children and that he was afraid she might take them to Montréal. She also said that the accused was convinced L.L. was mixed up with another man and was cheating on him.
[105] Ms. Khela further said that the accused was fearful L.L. would take the children for good. She confirmed that he often spoke of his religion and that he was making a “comeback” to his religion. He said that he wanted to bring his children back to their roots. She said that A., based on how the accused spoke about him, appeared to be his pride and joy. A. was the only child who might be a Sikh. It was important to Mr. Dosanjh that A. keep his hair and his bun. The accused described how he combed and wrapped his son’s hair daily. Mr. Dosanjh gave the same evidence at trial. Mr. Dosanjh told Ms. Khela that he was concerned L.L. would cut A.’s hair at any time just to spite him.
[106] Ms. Khela said that when he expressed these concerns he was panicky and out of control because he felt he had no control over his family or domestic situation.
[107] Mr. Dosanjh again gave generally different evidence. Though he accepted that he was sometimes angry and anxious and though he was “up and down” he said he was not generally concerned about his wife having an affair because she was free to do what she wanted to. He was not concerned about E.L. because she had no influence over either him or L.L. He would get upset about L.L.’s interfering with his ability to see the children, but this concern would settle and he knew he would ultimately deal with this matter through the courts or otherwise. Similarly, he said that he would briefly get upset over the thought of L.L. cutting A.’s hair but recognized that if that happened there was nothing he could do. He said that A.’s hair would grow back.
[108] An Admission of Fact confirms that Ms. Khela did not tell the police when she was first interviewed that the accused was concerned about L.L. having an affair. Mr. Dosanjh, however, accepted that he may have said this to her. In addition, the fact that he raised this issue on an ongoing basis with various people is not in issue. Ms. Khela also confirmed in her cross-examination that she had not earlier told the police that the accused was worried E.L. would take the children to Montréal with her nor had she said this at the preliminary inquiry. I have, accordingly, not given any weight to this latter aspect of Ms. Khela’s evidence.
[109] Notwithstanding this, however, there remains a significant difference in the evidence of Mr. Dosanjh and of Ms. Cheema and Ms. Khela as it relates to the accused’s state of mind, his demeanour and his acceptance of his circumstances in the week before the fire. The tenor and content of these two bodies of evidence is very different. I do not consider that Mr. Dosanjh’s description to the court of his overall lack of concern and his general acceptance of his breakup with L.L., and the potential consequences of that breakup for his family and children, was honest or accurate.
[110] On either April 6 or April 7, the accused had wanted to see A. and K. and L.L. had refused to let that happen. Mr. Dosanjh was very upset. When he returned to the Algonquin Drive Home he expressed his distress to Ms. Khela. Ms. Khela had recently gone through family proceedings herself and she explained to Mr. Dosanjh how he could go about starting a family action and thereby both secure and enforce access to his children. Mr. Dosanjh went to the courthouse to obtain the necessary documents. With Ms. Khela’s assistance he completed those documents. In them he sought full custody of his children. He explained that he asked for full custody with the expectation that after some negotiation he would end up with something less.
[111] Mr. Dosanjh then arranged to have the police present when he served the documents on L.L. He had not given L.L. any notice of what he was planning. Predictably L.L. was extremely upset and angry. L.L. sought to persuade the police that Mr. Dosanjh should not be permitted to leave with A. and K. L.L. said she told the police that he was a drug addict, though Mr. Dosanjh denied that L.L. had said this. L.L. was not successful in preventing Mr. Dosanjh from leaving with the children. Mr. Dosanjh took the two younger boys with him. G. had already arranged to meet his father at the Residence. L.L. would not, however, give Mr. Dosanjh the car seat he needed for A. Accordingly, Mr. Dosanjh and the three boys walked away, with A. being in a small wagon.
[112] When they were gone, L.L. cancelled the accused’s phone. Mr. Dosanjh apparently contacted L.L.’s father and asked for the money he needed for a new phone.
[113] When Mr. Dosanjh returned to the Residence he met with L.L. They had another argument. They were loud and swore at each other. L.L. testified that the accused said “your dad saved your life” meaning that he had threatened her. Mr. Dosanjh testified that he had said “your dad saved my life” meaning that without his cell phone he would not have been able to work. I do not consider that I can or need to resolve this particular discrepancy in the evidence.
[114] L.L. then went indoors, but E.L. came outside. She was yelling and swearing and said that Mr. Dosanjh was not to take the boys. Mr. Dosanjh swore back and told her to watch him do so. E.L. then apparently tried or did push the children’s wagon into his legs and he responded that if she hit him he would punch her in the face.
[115] Ms. Parent, who was in her suite, heard but did not see the exchange between E.L. and Mr. Dosanjh. That exchange took place near her front door. Ms. Parent agreed that E.L. told Mr. Dosanjh that he was not welcome on the property, that they argued about his taking the children with him, and that E.L. had taunted the accused in response to which he had said that if she came closer he would punch her in the face. Ms. Parent heard E.L. then say “call the police”. Ms. Parent was about to call but learned or realized that L.L. had already done so.
[116] Ms. Parent said that shortly thereafter, while she was walking her dog, she saw that the police had stopped Mr. Dosanjh’s truck. This aligns with the evidence of Mr. Dosanjh who said that the police stopped him, spoke to him, to G. and K., who were with him, and then let him go on his way.
[117] At some point, around April 9 or 10, L.L. said that she received a call from the Ministry of Children and Family Development about information they had received from a health centre about the accused using illicit drugs. Counsel agreed that that hearsay evidence was not admissible to establish that the accused was using drugs. Nevertheless, the information L.L. received required her to go to the offices of the Ministry and to sign a safety plan that had two components. First, the accused was not to see his two younger sons. Second, if the accused came to the Residence, L.L. was to call the police. L.L. says that she called the accused with this information and communicated it to him.
[118] Mr. Dosanjh accepted that L.L. had called him but said that he understood the safety plan only extended to his not being with K. or A. He said that he did not appreciate that the plan required him to keep away from the Residence. This is relevant because such a prohibition would make his attendance at the Residence in the early hours of April 13 more difficult to explain.
[119] I do not accept Mr. Dosanjh’s evidence on this issue. This is primarily because Mr. Dosanjh was similarly told to keep away from the Residence by the police. This occurred in a telephone conversation between the accused and Constable Adams of the RCMP on April 12. I will return to that conversation, but what is relevant, for present purposes, is that Constable Adams testified that he had advised the accused to stay away from the Residence. Mr. Dosanjh testified that he did not, again, understand Constable Adams to provide him with any such direction or instruction.
[120] Still further, G., in both his direct and cross-examination, confirmed that he understood that his father had been told to keep away from the Residence and that if he appeared the police would be called.
[121] Three events of note occurred on Saturday, April 11.
[122] On April 11, Mr. Dosanjh, together with G. and Jayedan attended at the Sikh Vaisakhi Parade. That parade celebrates the Sikh New Year. Ms. Cheema testified that Mr. Dosanjh felt strongly that both boys should wear turbans. She had told him not to press the issue and that what was important was that the boys were spending time with him. Mr. Dosanjh did not agree. He said, in his cross-examination, that he spent lots of time with G. and that he considered it important that the boys respect the traditions of the occasion. Jayedan ultimately agreed to wear a turban, while G. had initially said he would put one on when they got to the festival. Ultimately, however, he changed his mind and he apparently persuaded Jayedan to take his turban off. Mr. Dosanjh accepted that he was angered and upset by G.’s behaviour.
[123] Having said this, Mr. Dosanjh and G. both agreed, in their evidence, that they had had a good time at the parade and Ms. Cheema said that all three of them were in good spirits when they returned to her home later that day.
[124] Ms. Cheema had a traditional table that required some repair. Mr. Dosanjh, who is a house framer, wanted to or agreed to do that work. He said that he drove, together with Jayedan and G., to get some wood mouldings that he had at the Residence. He said that he had Jayedan, who was driving, park out of sight by a row of hedges. He said that after April 8 he had made a decision not to be visible when he went to the Residence. He said that this was so he would not upset either E.L. or L.L. I have said and I am satisfied that Mr. Dosanjh knew that he was not to be at the Residence.
[125] Mr. Dosanjh then sent G. in to get the mouldings from the front balcony that was off of the master bedroom. G. could not find the mouldings and Mr. Dosanjh got out of his truck. L.L. saw him and began to yell and swear at him to get off of the property. Mr. Dosanjh said that he told her he was there to get some wood. He also said that as he was leaving the property he hit the side of the door on E.L.’s vehicle, a Hyundai Sante Fe SUV, with his open hand.
[126] L.L. then called the police in accordance with the safety plan she had signed with the Ministry. Constable Adams of the RCMP attended the Residence and spoke to L.L. He confirmed, in his cross-examination, that there was no formal order that prevented Mr. Dosanjh from being at the Residence and he confirmed that L.L. made no allegations of violence or threats. Nevertheless, he offered L.L. access to Victim Services. She declined that offer. Constable Adams did not phone the accused that day, though he did patrol the area with other members to see if Mr. Dosanjh was nearby.
[127] That Saturday evening, E.L.’s SUV was vandalized. A wrought iron rod, that was perhaps four or five feet in length and that normally served as a plant holder on the front lawn of the Residence, was smashed through the front passenger side window of her vehicle.
[128] That damage appears, based on the evidence of Ms. Parent and Mr. Webster, to have occurred between about 9:00 p.m. and 10:00 p.m. Ms. Parent had worked that day. After work she and her husband had gotten groceries and returned home at about 9:00 p.m. At that time they did not observe any change to E.L.’s SUV. About 45 minutes to an hour later she went outside for a cigarette. She saw a shadow by E.L’s vehicle, went over and saw the wrought iron rod protruding from the front passenger side window of the SUV. She knocked on E.L.’s door to tell her that someone had vandalized her vehicle. E.L. was very upset. Mr. Webster taped up the window and cleaned up a little.
[129] L.L. was out that evening. She received a voicemail message about the vehicle but did not check her messages until about 4:00 a.m. She then made her way home.
[130] Mr. Dosanjh testified that he had nothing to do with the damage to E.L.’s vehicle that night. I do not accept that evidence for several reasons. First, Jayedan had testified at the preliminary inquiry in this matter. He has since passed away as a result of a drug overdose. A digital recording of Jayedan’s preliminary enquiry testimony was played into evidence, pursuant to s. 715 of the Criminal Code. Further admissions confirm that the requirements of s. 715 had been complied with. I have also reviewed the whole of the transcript of Jayedan’s evidence carefully. I am mindful, however, that I did not have the opportunity to observe him testify or to be cross-examined.
[131] It is clear that Jayedan was quite troubled at the time of the events in question. He used marihuana several times a day. He regularly used other drugs such as Xanax, OxyContin and Percocet. He accepted that he was “pretty messed up” at the time. He accepted that his memory of various things was impaired by his having used drugs during this period. He had been kicked out of school for a time in the spring of 2015.
[132] When Jayedan gave evidence at the preliminary inquiry, he said that he was in a much better place. He said that had stopped using drugs and that he had gone back to school to get his Dogwood Diploma. Sadly he passed away about ten weeks later.
[133] Jayedan’s evidence is not consistent with other evidence at trial in some respects and I would not accept that evidence. For example, Jayedan had testified that the accused had made various statements to or in the presence of Ms. Khela early on April 13 when he, G. and the accused had picked Ms. Khela up at the airport. Each of Ms. Khela and G. denied having heard any such statements. Mr. Dosanjh denied having made the various statements that Jayedan ascribed to him.
[134] At the same time, there are various aspects of his evidence that are entirely consistent with other evidence given at trial. He recalled the family friction between L.L. and the accused. He recalled that L.L. had cancelled the accused’s phone account. He recalled the accused wondering about whether L.L. was having an affair. He described picking up the accused at the hospital with G. and his grandfather. He described the circumstances that led to the accused staying at his grandmother’s home. He recalled that his relationship with E.L. deteriorated at this time and that she did not want him at the Residence. He knew that E.L. took various medications. He recalled going to the Vaisakhi Parade and the disagreement over wearing turbans. He recalled that on April 12 he had played basketball with G. and another friend, that G. then had gone to a movie and that he and the accused had later picked G. up at the Residence. He recalled, as I have said, that he, G. and Mr. Dosanjh had picked Ms. Khela up at the airport and he recalled the gifts that she had brought back for them. He recalled that G. had gotten a black eye early on April 13 and that G. had told him that the accused had hit him. I will return to each of these latter matters shortly.
[135] Jayedan also said that he and Mr. Dosanjh drove to the Residence one evening. He accepted that he would have been smoking marihuana that night and that he might have used Xanax, and that that might affect his recall of what happened. In both his direct evidence and his cross-examination he said that he thought this was either on the Saturday (the 11th) or on the Friday (the 10th). He said that they drove to the Residence at about 9:00 p.m. so that Mr. Dosanjh could get some clothes. He said that it was “dark” or “pretty dark” outside. He described how he parked beside a hedge so that Mr. Dosanjh’s truck would not be seen and that Mr. Dosanjh got out of the truck. He then heard the sound of shattered glass. He turned his head and he saw a rod sticking out of the window of E.L.’s SUV. He then saw the accused walk back to the truck. He accepted that he had not seen Mr. Dosanjh break the window and that it was his assumption that he had done so.
[136] Counsel for Mr. Dosanjh raised various concerns with Jayedan’s evidence. He argued that on account of where Jayedan and the accused had parked it was unlikely that Jayedan would have been able to see the SUV. Jayedan said, however, that after he had heard the sound of breaking glass he had had to crane his neck to see the SUV and the rod sticking out of the window. Counsel also argued that it would have been too dark to see and relied on a photo, taken by Mr. Webster that evening, in aid of that submission. That photo would, however, based on the evidence of Ms. Parent and Mr. Webster, have been taken at least an hour or so later.
[137] G. also gave some evidence in relation to this issue and, at one point, said that his father “owned up” to damaging E.L.’s SUV. His further evidence, however, made clear that Mr. Dosanjh had merely expressed satisfaction that the car was damaged saying that “she deserved it”.
[138] The accused testified that he had not damaged or vandalized E.L.’s SUV and said that perhaps the evidence that both Jayedan and G. gave was confused with the instance where he had struck the side of E.L.’s car with his open hand on the previous day. I do not accept the accused’s evidence and I am satisfied that he broke the side window of E.L.’s SUV. The evidence of Jayedan was quite specific about what damage to E.L.’s vehicle he was talking about. In particular his evidence of when he and the accused drove to the Residence and thus when the damage occurred as well as the specific manner in which the window was broken support the reliability of his evidence.
[139] Several important events occurred on Sunday, April 12.
[140] L.L. testified that on Sunday morning she had looked at E.L.’s vehicle and saw that there were scratch marks on the back of the car and she believed on the hood. She tried to start the car and black smoke came out of the exhaust. Mr. Watson, who had vacuumed out the car that morning and re-taped the window on it, said that when he tried to start the vehicle he did not see much smoke but he perceived a “funny smell”.
[141] When Mr. Watson was cleaning E.L.’s vehicle, his wife came out to see what he was doing. She too saw scratch marks on the hood and rear end of the vehicle. She too saw black smoke coming from the vehicle when it was started. She said that when she was outside a police officer was there. He saw a plastic 7-Up bottle on the roof of the car and he gave it to her. Ms. Parent thought the bottle was curious because instead of having a green cap, as a 7-Up bottle ought to, it had a red cap. She smelled the container and said that it smelled like a petroleum product. Mr. Watson also smelled the bottle and said that it smelled like some sort of solvent. He thought that his wife had found the bottle on the grass. Ms. Parent placed the bottle, with the cap on it, in the car.
[142] After the fire, the police took E.L.’s vehicle to a secure bay at the Richmond RCMP facility. At trial Constable Klaver testified that he saw two slash marks on the driver side tires. After the police obtained a warrant, they searched the contents of the vehicle and forensically examined the contents of the bottle. The relevant Admission of Fact establishes that “gasoline was detected in the bottle”. There was no suggestion, however, that any determination was made of whether the engine of the vehicle was somehow damaged. On account of the inconsistency in the evidence about whether or to what extent the SUV was further damaged and where or how the 7-Up bottle was found I have made no findings in this respect.
[143] L.L. had apparently received a message on her phone, as a result of a pocket dial, that caused her to believe that the accused was involved in the damage to her mother’s vehicle. She called the accused who denied any involvement. They argued. L.L. told him that he would not see the children. She testified that he then threatened her, though she could not remember the words that Mr. Dosanjh had used. Mr. Dosanjh, in his evidence, denied any such threat. He also said, and L.L. agreed, that in one of the telephone conversations that they had that morning, they discussed possible mediation to deal with the children and his access to them.
[144] On account of the damage to E.L.’s vehicle, Constable Adams again attended at the Residence. He is the police officer that Ms. Parent had referred to in her evidence. He listened to the pocket dial recordings on L.L.’s phone. He was concerned for L.L.’s safety and he phoned Mr. Dosanjh. He asked to meet with Mr. Dosanjh regarding the vehicle and regarding another matter or file that had appeared in the PRIME system when Constable Adams searched to see if there were any outstanding concerns with the accused. That separate matter arose, Constable Adam said, out of a set of circumstances on April 10, 2015 that had given rise to an uttering threats complaint. I raise this only as part of the narrative to explain the conversation between Mr. Dosanjh and Constable Adams. No warrant had yet been issued in respect of this matter, though Constable Adams told Mr. Dosanjh that if they met he would be arrested. Mr. Dosanjh declined to meet with Constable Adams. He indicated that he would go to the courthouse the following day to look into the matter.
[145] Importantly, Constable Adams told Mr. Dosanjh, as I have said earlier, that he was not to attend at the Residence or to meet with L.L. He told Mr. Dosanjh that his presence was not welcome there. He said that he communicated this “loud and clear”. He confirmed that Mr. Dosanjh told him that he did not want to hurt anyone. He just wanted to see his children.
[146] In the ensuing conversation with Constable Adams, L.L. decided that she now wished to leave the Residence. The damage to her mother’s SUV, the various threats she believed she had received, the accused’s possessive and his other behaviours in recent days had caused her to be concerned for her safety. Constable Adams confirmed to her that there was a transition house that would hold a spot for her and for A. if she could get there by 7:00 p.m. that evening. L.L. decided to leave and to put together the things she needed for herself and for A. She packed three large bags. She said that she likely left the bed unmade and that there may have been other clothes on or at the foot of the bed. Some hours later, Constable Adams called L.L. to update her.
[147] Mr. Dosanjh described various errands that he ran on that Sunday morning. He went to Home Depot to get some supplies to repair Ms. Cheema’s table. He went to a job site to do a small drywall project. As he was driving he passed by Mr. Dobson’s home. He said that he saw Mr. Dobson and his wife outside and decided to pull in. He said that he wanted to ask Mr. Dobson about whether he might consider acting as a mediator in the dispute between himself and L.L.
[148] The discussion that followed with Mr. Dobson is important. It took place a little more than 12 hours before the fire. Mr. Dobson and Mr. Dosanjh gave two fundamentally different versions of what took place and of what was said. Furthermore, the conversation, on Mr. Dobson’s version of what took place, gives considerable insight into the accused’s state of mind.
[149] Though Mr. Dobson, his wife and L.L. had known each other for many years and were good friends, and though Mr. Dobson had met L.L. many times, he had only met the accused once before. This was over a 17-year period of time. This meeting was at his daughter’s birthday party at his home some weeks earlier.
[150] Mr. Dobson lived on a large farm property in Richmond. He said that he was watching a movie with his daughter, at about noon, when the accused knocked on the front door. Mr. Dosanjh said “you’re the person I’m looking for”. Mr. Dobson was uncomfortable with the accused’s demeanour, he led him outside and he began to walk with Mr. Dosanjh.
[151] Mr. Dobson said that Mr. Dosanjh was walking in front of or beside him. He repeatedly said that he watched Mr. Dosanjh’s hands as they walked. He repeatedly said that he was very uncomfortable. He said that Mr. Dosanjh had white powder under his nose and had some froth on the side of his mouth. He was very high strung. He looked like he had been awake for days. He looked sickly. He “bounced” around in front of Mr. Dobson waving his hands. His speech was very quick and he did not make a lot of sense.
[152] Mr. Dobson said that Mr. Dosanjh told him that he knew L.L. was inside. Mr. Dobson told him that she was not. Mr. Dosanjh then said he knew L.L. had been there the previous night. Mr. Dobson told him that she had not. Mr. Dobson said the accused then made the following comments during their conversation:
· everybody associated with L.L. was in grave danger;
· that the night before, the window was smashed on E.L.’s car but she was not in it; he said that he had not caused the damage to the vehicle;
· a lot of his friends’ houses were being raided by the police because of L.L.; their marihuana and shotguns were being seized because of L.L.;
· Mr. Dobson might be okay because the way his house was situated it would only be good for a “drive-by”. Mr. Dobson took this to mean a drive-by shooting after the reference to friends with shotguns;
· Mr. Dobson asked the accused if he was threatening him, to which the accused responded that he was not but that everyone who associated with L.L., who kept him from his children and who impeded his life was in danger;
· he talked about the Sikh nation and said that if he went to prison and they found out he was dating a white person they would believe that the children’s blood is tainted;
· that after “the massacre in 1984 all the sons were shipped to Canada to impregnate white women”;
· if L.L. had a boyfriend he would cut his dick off, make him eat it, break his legs and chop his head off;
· he then asked if Mr. Dobson would be willing to act as a mediator in one last face-to-face meeting with L.L. so that he could have closure. Mr. Dobson declined to act as a mediator;
· he said that he would not hurt L.L. in the face-to-face meeting and he would only need five minutes. He further said he would be willing to do the mediation at Mr. Dobson’s house;
· if the police came to get him they would be in for quite a fight; he would barricade himself in;
[153] Mr. Dobson then told the accused that he needed to leave his property. He also told the accused not to do anything stupid. Mr. Dosanjh told him that he was going to do what he was going to do. He then got in his truck and drove away.
[154] Mr. Dobson said that though this conversation seemed to take a long time, he estimated it took between 15 to 20 minutes.
[155] Mr. Dosanjh said that his conversation with Mr. Dobson likely took ten minutes and that they stood by his truck, outside of Mr. Dobson’s house, the whole time. Mr. Dosanjh said that the comments Mr. Dobson attributed to him about the Sikh nation or about impregnating white women were actually comments made weeks earlier at Mr. Dobson’s daughter’s birthday party and were made in reference to a documentary that Mr. Dosanjh had watched about efforts by Muslims to pretend to be Sikhs and to meet and impregnate young Sikh women.
[156] He said that the comments made about the “drive-by shooting” were actually comments that he had made, again at the birthday party weeks earlier, about the Bhuttan crime family that lived in Richmond. Mr. Dosanjh denied making many or most of the other comments that Mr. Dobson gave evidence about, other than the comments about his desire to mediate and his comment about “doing what he had to do” which, he said, was a reference to his going to court to secure access to his children if he had to.
[157] I do not accept Mr. Dosanjh’s evidence. Though the accused said that he had spoken to Mr. Dobson throughout most of the birthday party, Mr. Dobson said that they had only spoken briefly at that time. I accept Mr. Dobson’s evidence in part because he believed that the accused had been using drugs on that earlier occasion. I also consider that Mr. Dobson was credible. His evidence was not impeached in any meaningful way in his cross-examination. There was also no suggestion that he gave any different evidence in the statement he gave to the police in the day or two after the fire or at the preliminary inquiry.
[158] Finally, it is clear that Mr. Dobson considered that Mr. Dosanjh’s demeanour and comments were threatening. It is relevant that Mr. Dobson did not appear to be a timid or fearful person. He said that years earlier he had managed a “seedy biker bar”, off and on, for several years. He did not allow the accused to enter his home and he kept him away from his house. He watched him carefully throughout. He asked if the accused was threatening him. He asked him to leave the property. When Mr. Dobson returned to his home, he said that he had told his wife to call L.L. and to tell her to call the police and inform them about what she was dealing with. In addition, when he learned of the fire the next morning, and because he did not know where Mr. Dosanjh was, he feared for the safety of his family and he got them out of their house. All of this is consistent with Mr. Dobson being told things that caused him to be concerned with Mr. Dosanjh’s comments and behaviour.
[159] At some time shortly before the end of his shift, Constable Adams received a call from Mr. Dosanjh. He said that Mr. Dosanjh told him that he knew L.L. had gone to a safe house. He said that Mr. Dosanjh was extremely upset, that he yelled at Constable Adams and that he could not understand much of what Mr. Dosanjh said. Mr. Dosanjh did not disagree with most of this evidence. He accepted that he was angry, that he yelled, that he swore and that Constable Adams ultimately hung up on him.
[160] Mr. Dosanjh said, however, that the reason he was upset was not because L.L. had left for a safe house with A., but rather because L.L. had left K. behind with E.L. Constable Adams had no memory of this. There was no suggestion that he had made a note of any such statement and this suggestion is inconsistent with the thrust of his evidence. Though Constable Adams, when pressed, said that it was in the “realm of possibility” that Mr. Dosanjh had said this to him, I consider that this evidence, on the part of Mr. Dosanjh, was self-serving and that it is not consistent with other evidence at trial.
[161] One theory of the defence is that E.L., who had suffered with depression for decades and who was particularly upset in the weeks before the fire, caused the fire at the Residence. There was no suggestion in the evidence, however, that either L.L. or the accused ever had a concern with E.L. caring for the children. She had been, as I have said, a teacher for many years. She had taken the different children in the family, at different times, to Montréal. Ian, her ex-husband, who came by the Residence late on April 12, and whose evidence I will return to, had no concern over leaving K. with E.L. or about her ability to care for her grandson. G., who had been present at the Residence when L.L. left for the transition house with A., and who then called his father about what had happened testified that his father was angry that L.L. had gone to a transition house with A. There was no suggestion in his evidence that the accused was upset because K. had been left behind with E.L. Indeed, as I will develop, G.’s evidence was that he told his father that K. was with his grandfather.
[162] Because of the tenor of the call from Mr. Dosanjh, Constable Adams was concerned for the safety of L.L. and he doubled back to the Residence. This was close to the end of his shift. L.L. had left for the transition house, in a taxi, moments earlier. She said that she saw a police vehicle arrive at the Residence as she was leaving but that she did not speak to Constable Adams again. Constable Adams, however, spoke briefly to E.L.
[163] Though Constable Adams did not inform either L.L. or the persons at the transition house of his conversation with the accused, he did create a “pass on” and he ascribed a “Priority Level 2” to that “pass on”. Constable Adams explained that a “pass on” is a message to the police officers coming on the next shift that asks them to deal with something. Constable Adams wanted the officers on the next shift to ensure that L.L. had arrived at the transition house without incident. He further explained that there are four levels of urgency or seriousness that can be given to a “pass on”. A “Priority Level 1” matter would be an in-progress crime. A “Priority Level 4” matter might be a parking complaint.
[164] Mr. Dosanjh went to the home of Ms. Pollard and Mr. Hadley in the afternoon and/or the evening of April 12. Ms. Pollard and Mr. Hadley were both adamant, though neither had said this in their original police interviews, that Mr. Dosanjh came to their home twice that day. They said that Mr. Dosanjh came by once, when it was still sunny out, to deliver some wood that Mr. Hadley had called about earlier in the day and that he and Ms. Pollard needed to redo the deck on their home. They also said that Mr. Dosanjh came by a second time, later that evening, when he was with Jayedan and when he simply wanted to talk. Mr. Dosanjh said that he only went to their home once that day at about 7:00 to 8:00 p.m. The matter is not addressed in the transcript of Jayedan’s evidence nor in the evidence of any other witness. I have not, on account of this discrepancy in their evidence, relied on Mr. Hadley or Ms. Pollard’s evidence in relation to whether Mr. Dosanjh went to their home twice on April 12.
[165] I accept much of the other evidence they gave partly because it is not contested and partly because it is consistent with the evidence given by others in relation to the same issues.
[166] Ms. Pollard said that the accused told her that he knew L.L. had a boyfriend. Ms. Pollard told him that L.L. did not have a boyfriend and that he would have to work things out if he wanted to see his children. Mr. Dosanjh then talked about getting custody of his children and about L.L. trying to take his money. Ms. Pollard said that he would circle back to these same topics, that being the “mystery boyfriend”, the children and money, repeatedly. She did not recall if Mr. Dosanjh spoke of religion on this occasion. She said that the accused said he knew L.L. had left with A. but that he did not know where they were. None of this evidence was contradicted by Mr. Dosanjh.
[167] Ms. Pollard also said that the accused told her E.L. was always getting in the middle of things and that E.L. had told him that he would not see the children. Though Ms. Pollard had not communicated this information to the police in her initial statement she had given this same evidence at the preliminary inquiry. Mr. Dosanjh denied making these latter remarks.
[168] Mr. Hadley’s evidence was a little less precise. He had worked with Mr. Dosanjh for about a week in the recent past – Ms. Pollard fixed this as February 2015. He said that Mr. Dosanjh was always stressed out and talking about his fighting with L.L. He confirmed that on this occasion Mr. Dosanjh was stressed out over the fighting with L.L., that he wanted the fighting to stop and that he wanted to see his children. He also recalled that Mr. Dosanjh had said that he knew L.L. had been put up in a hotel and he commented that L.L. was creating a scene for no purpose.
[169] Ms. Pollard testified that as Mr. Dosanjh left with Jayedan, he commented that E.L., K. and G. were at the Residence.
[170] Mr. Dosanjh, G., and Jayedan returned to Ms. Cheema’s home and had dinner there. Ms. Cheema said that Mr. Dosanjh and the boys appeared to be in good humour. She went to bed and the boys, together with Mr. Dosanjh, were going to go to the Vancouver airport to pick up Ms. Khela who was returning from her trip to Las Vegas.
[171] Once again, several distinct things happened on April 13.
[172] Ms. Khela’s flight arrived before 1:00 a.m. on April 13. Video footage from the airport, the evidence at trial and a Notice to Admit establishes that Ms. Khela was walking back to Mr. Dosanjh’s truck with both boys at 1:02 a.m. and video footage had them leaving the airport at 1:07 a.m.
[173] Ms. Khela said, and Mr. Dosanjh accepted, that Mr. Dosanjh was lying down on the backseat of his pickup when they got back to the truck and that he remained in that position for the drive back to the Algonquin Drive Home. She said that Mr. Dosanjh was withdrawn and said very little. She said he did not greet her and that she thought he was rude. She said that he seemed “dark” though she had not said this to the police earlier. She spoke to the boys about various things including about the gifts she had bought them.
[174] She said, and Mr. Dosanjh agreed, that there was further discussion about the parade the previous day and about the boys not having worn their turbans. There was some further discussion about religion with Ms. Khela commenting that what was important was that the boys had a good time. Mr. Dosanjh did not agree. For him the emphasis was on the religious content of the event. When asked, in his cross-examination, if he agreed with Ms. Khela he said “fuck, no”.
[175] The evidence of a police officer, who drove from the Vancouver Airport to the Algonquin Drive Home on a later occasion but at the same time of night, testified that that drive took him 16 minutes.
[176] When they arrived at the Algonquin Drive Home, Ms. Khela and Jayedan got out. It appears that Mr. Dosanjh and G. spoke for a time in the truck. G. thought they may have gone inside briefly. They then drove to the Residence.
[177] The evidence of a police officer, who drove from the Algonquin Drive Home to the Cornerbrook House, on a different day but at the same time of night, testified that that drive took him nine minutes.
[178] G.’s phone records, and his evidence in relation to those records, establish that he either was on his way to the Residence or had arrived at the Residence at 1:47 a.m. Specifically the records show that Jayedan called G. at that time.
[179] Whether Mr. Dosanjh understood that only E.L. was at the Residence that evening, and that K. was elsewhere, is relevant. Numerous witnesses gave evidence in relation to this issue. That evidence was inconsistent.
[180] It is clear that K. was initially supposed to spend the evening at his grandfather’s home. Though his grandfather testified that he was uncertain when the plan to have K. stay over with him was first made, it is clear that that had been the plan. He confirmed that a bed had been made up for K., at his home, that evening.
[181] Ian recalled being advised by L.L., either that morning or in the early afternoon, that she and A. were going to the transition home. He drove to the Residence and, together with L.L. and K., went to a 7-Eleven to get L.L. cigarettes. He drove L.L. home and he then continued on with K. They were going to go out for dinner for K.’s 13th birthday and they were then going to go to Chapters to get K. some books. Because there was some sort of emergency with Ian’s dog they first met Ian’s partner at the veterinarian before then proceeding on to dinner.
[182] At some point before 10:00 p.m., K. told his grandfather that he thought he should sleep at the Residence that night because E.L. was going to have to deal with ICBC the next day in connection with her car and he did not want her to be alone. Ian drove K. home at about 10:30 p.m. and he went in to watch a movie for a little while with E.L. and K. He left the Residence at about 11:00 p.m. He did not call anyone to say that his plans with K. had changed. He walked downstairs with K. and he had K. lock the front door to the Residence after he left.
[183] G. similarly testified that his understanding was that K. was to have stayed with his grandfather that evening. He believed he had been told this earlier by his mother. This aligns with other evidence that places G. at the Residence as his mother and A. left for the transition house. At that point K. had already left with his grandfather. It is clear that G. called his father to tell him what was happening. It was that call that had precipitated Mr. Dosanjh’s angry call to Constable Adams.
[184] G. testified that he told his father that K. was staying with his grandfather. He also testified that when he went to the Residence with his father, in the early hours of April 13, he had peeked into the bedroom that E.L. and K. shared and that he had been surprised to see K. there. He said that he closed the door to their bedroom and that he had not thereafter told his father that K. was at home.
[185] I have said that G. readily accepted that there were numerous things he did not recall, that the evidence he gave a trial did not sometimes align with his earlier statements to the police and that he generally agreed with most propositions that were put to him during his cross-examination. He emphasized, however, that he was quite sure that he had told his father that K. was not supposed to be at the Residence that night and that he had not thereafter told his father that he had seen K. asleep in his bedroom. There was no suggestion that he had earlier said anything different to the police or that he had given different evidence at any earlier stage.
[186] Mr. Dosanjh testified that he had understood or knew that K. was to be sleeping at home that night. He addressed this in his evidence at different times and in different ways. First, he denied that G. ever told him K. was supposed to be out that evening. Indeed, on his evidence. G. had told him that K. was supposed to be at home that night. Second, he said that when they had gone to the Residence, G. had expressly told him that K. and E.L. were inside and were sleeping.
[187] Third, Mr. Dosanjh had earlier told the police, in a statement that was made voluntarily, that he had seen K. through a window when he went by the Residence at about 6:00 to 7:00 p.m. and after he had spoken to Constable Adams on April 12. At trial, when it was clear that this could not have happened, Mr. Dosanjh now said that he had misspoken when he was interviewed by the police and that he was referring to another occasion.
[188] Similarly, Mr. Dosanjh testified that when he went to the Residence with Jayedan to pick up G., on April 12, he saw K. playing basketball and that he spoke to him. This too is inconsistent with what Mr. Dosanjh had earlier told the police and here too Mr. Dosanjh now asserted that he had originally misspoken. In his earlier statement he had said that he had seen K. playing basketball, and that he had then spoken to him, on a different day.
[189] Quite apart from these inconsistencies in the accused’s evidence, what Mr. Dosanjh said at trial is not otherwise credible. Based on the evidence of each of L.L. and of her father, both her father and K. had left the Residence well before L.L. left for the transition home. Indeed, after the three of them had gone to get cigarettes from the 7-Eleven, they returned to the Residence. K. and his grandfather then left. L.L. then had a shower and packed what she needed for herself and for A. It is simply not possible for the accused to have seen K. playing basketball, or to have spoken to K., in front of the Residence when he drove by that evening.
[190] I have already said that I do not accept Mr. Dosanjh’s evidence that he argued with Constable Adams because K. had been left behind with E.L. and not because L.L. had left the Residence with A. This evidence was also directed to establishing that the accused believed K. had stayed behind in the Residence.
[191] One last piece of evidence is relevant. Ms. Pollard testified that Mr. Dosanjh commented, as he left their home on the evening of April 12, that he was going to pick up G. at the Residence and that E.L. and K. were there. Ms. Pollard’s evidence on this issue is inconsistent with most other relevant evidence and I do not accept her evidence on this issue.
[192] There are several sources of evidence that pertain to what took place when the accused and G. went to the Residence early on April 13. Each of Mr. Dosanjh and G. gave detailed evidence. Furthermore, each of Ms. Parent and Mr. Watson, the couple who lived in the suite below the Residence, gave evidence about what they heard and saw in the early hours of April 13.
[193] Mr. Dosanjh said that he wanted to go to the Residence to get various things that he had not been able to take with him when he had moved out. This included his wallet, other personal documents and his clothing including some suits.
[194] Mr. Dosanjh said that it was G.’s idea to go to the Residence late at night because E.L. would be sleeping. Mr. Dosanjh also said that when they had all returned from the airport to the Algonquin Drive Home, he had suggested going to the Residence some other time but that it was G. who insisted on going because G. wanted to get some of his own possessions.
[195] I do not accept that this is so. Though G. had said that both he and his father wanted to get some of their things, the thrust of his evidence was that it was his father who had to get his various possessions. Certainly, once they arrived at the Residence, it was Mr. Dosanjh’s things that they looked for. Similarly, there was no suggestion in the evidence of either G. or of his father, that once they were at the Residence, they retrieved anything that belonged to G. To be precise G.’s direct evidence had suggested that he had changed some of this clothes but in cross-examination, after being taken to his earlier statement, he accepted that he had been mistaken in his evidence.
[196] It seems clear that G. drove to the Residence or at a minimum, at least part of the way there. During the drive, G. and his father had a disagreement. G. recalled that the disagreement related to culture and Sikhism and some of the things that Ms. Khela had said on the drive from the airport to the Algonquin Drive Home that Mr. Dosanjh disagreed with. Mr. Dosanjh said that the disagreement was about G.’s conduct at the Vaisakhi Parade the previous day. In any event, Mr. Dosanjh hit G. on the right side of his face while he was driving. Mr. Dosanjh said that he did so with the back of his hand. Be that as it may, photographs, that were taken the next day, show that G.’s right eye was both closed and bruised.
[197] G., who was upset, pulled over to have his father drive. His father told him to “stop being a bitch”. Mr. Dosanjh began to drive but he did so very erratically. He said that he drove in this way intentionally to get G. to drive the rest of the way to the Residence. Their respective evidence was inconsistent on who drove the rest of the way with Mr. Dosanjh saying that G. had resumed driving again.
[198] When they arrived, they parked several houses away on the far side of the street and facing away from the Residence.
[199] Though aspects of the evidence of G. and Mr. Dosanjh about what took place within the Residence were consistent, significant portions of that evidence were not.
[200] First, Mr. Dosanjh said that he first sent G., with a description of some of the items he wanted and where those items might be found, into the Residence by himself. He said that G. was in the Residence by himself for five to seven minutes before he too got out of the truck and walked to the Residence. He was told by G. that he could not find any of Mr. Dosanjh’s items. It was at this point, Mr. Dosanjh said, that they both went into the Residence.
[201] G., however, gave no evidence, in his direct evidence or in his cross-examination, of his ever first going into the Residence without his father for any period of time.
[202] Next, the evidence of Mr. Dosanjh suggested that he and G. were together at most times and almost always within sight of each other. They went upstairs together. They looked in the hallway closet together. Mr. Dosanjh went into the master bedroom and his son followed shortly thereafter and they came downstairs together. They then went through the ground floor closet that was under the stairs together.
[203] G.’s evidence did not have the two of them in such close proximity at all, or indeed at most times. G. said that when he first came upstairs, his father remained in the downstairs hallway where there was some shelving in a closet under the stairs. G. looked in his room briefly. He then looked briefly in the bedroom where he saw, to his surprise, that K. was home and that both K. and E.L. were asleep. He closed the door to their bedroom. He then went to the closet outside of the master bedroom where there were various photo albums and he looked through them. He estimated this took about three minutes or less. At that point his father came upstairs and, for the first time, joined him.
[204] G. gave his father the albums. Mr. Dosanjh put them down and went into the master bedroom by himself. G. estimated that his father was in the master bedroom for perhaps 15 to 20 seconds. When his father left the master bedroom, G. went in and saw that some of his mother’s clothes were in the toilet of the ensuite bathroom. Knowing that his mother would not have done this he assumed that his father had. G. took another moment or two in the room to see if anything else was unusual. Seeing nothing he then left the master bedroom.
[205] G. said that when his father had left the master bedroom he had gone downstairs. After G. left the master bedroom he followed his father downstairs. He then helped his father locate some suits from the closet under the stairs.
[206] He said that the various photo albums from upstairs, his father’s suits and some books that his father wanted were all piled up downstairs outside of the front door. The albums and books were in large Tupperware containers. When everything was set up and ready to go, his father told him that he had forgotten something. He went back inside for a short time while G. was outside. G. estimated that his father was inside for “less than a minute, like 30 seconds”. When Mr. Dosanjh again came outside he was holding a poster or calendar in his hand. The two of them then began to carry the items they had assembled to Mr. Dosanjh’s truck. It took them two trips to move everything. On G.’s evidence they would have been in the house for at least five minutes and likely somewhat longer.
[207] G. said that he never saw any flames or smelled any smoke before they left. He never saw his father start a fire. He said that as they carried things to the truck his father did not seem stressed. They were not running. They got in the truck and then drove back to the Algonquin Drive Home.
[208] Mr. Dosanjh’s description and chronology were different. Once again he said that he had first sent G. into the Residence with specific instructions to look for specific items in specific locations. He was to look for shirts in the walk-in closet, suits under the stairs and identification documents, including Mr. Dosanjh’s passport, if he could find them. When G. did not return, Mr. Dosanjh went to the front door of the Residence. When G. came downstairs he had nothing with him. Mr. Dosanjh said that he asked G. who was inside and that G. had responded that both E.L. and K. were sleeping.
[209] Mr. Dosanjh said that he told G. to go upstairs and that he followed behind him. He told G. to look in the closet outside of the master bedroom. He saw a Tupperware container full of photo albums. He had G. hand him the albums and stack them at the top of the stairs. Mr. Dosanjh then went into the master bedroom and turned on the light. He went to the walk-in closet and saw that none of his clothes were where they were supposed to be.
[210] Mr. Dosanjh said that when he did not see his clothes he assumed that L.L. had thrown them out and he then decided to throw several pieces of L.L.’s clothing, together with the hangers they were on, into the toilet in the ensuite bathroom to “annoy” her.
[211] He said he then looked in a longer dresser for other clothes and in a shorter dresser for his wallet and various legal documents. He saw none of these items, though he did see a bag of tax documents that he took with him, and he then left the master bedroom. He met G. at the door to the room. He said that he then looked into the living room, the kitchen and on the back deck, for a total of 20 seconds, to see if he could find anything. When he returned to the top of the stairs G. was there. G. grabbed some photo albums and Mr. Dosanjh said that he grabbed what G. could not carry. At the bottom of the stairs, he ran back up to grab the bag of tax documents. He said that neither he nor G. ever went back upstairs that evening.
[212] Mr. Dosanjh then said that he had wondered or asked aloud where his suits were. G. responded that he had found them. They went to the closet below the stairs. Mr. Dosanjh said that he saw his clothes had been put in Tupperware containers and his suits were in garment bags. G. handed his father these items and Mr. Dosanjh said he then heard some squeaking sounds from upstairs which he believed were footsteps. Mr. Dosanjh said that he told G. he thought that E.L. was awake and that they should leave.
[213] Mr. Dosanjh said that he took a box to where other items had been stacked inside the door and then said “hold on a second”. He said he then returned to the hallway where there was a bookcase that contained various religious pictures. He grabbed the pictures and one or two books. He said that all of this occurred in G.’s presence. G. was standing outside but the front door was wide open. He said that he saw G. on his phone. The two of them then carried these various items to the truck. Mr. Dosanjh said that they made two trips to the truck.
[214] Mr. Dosanjh estimated that from beginning to end he was inside of the Residence for a maximum of three minutes.
[215] Mr. Dosanjh then said that because he thought he had heard someone upstairs in the Residence and because he was concerned the police might have been called he and G. waited in the truck for another five to seven minutes before they drove away. He said “I rolled a joint we smoked … we smoked another one while waiting”.
[216] Both G. and Mr. Dosanjh agreed that G. then drove back to the Algonquin Drive Home. Both agree that Mr. Dosanjh apologized for having hit G. They agreed that when they got back to the Algonquin Drive Home, they looked at some of the photo albums that they had carried away. G. then got together with Jayedan.
[217] Ms. Parent and Mr. Watson also gave detailed evidence of what they had heard and seen early on April 13. Their daughter had been travelling for a few weeks and she returned home late on April 12. Her father picked her up at the airport at about 11:00 p.m. and all three of them had talked for some time before deciding to go to sleep. Though the evidence of Ms. Parent and Mr. Watson was similar in several respects, it was also inconsistent in material ways.
[218] Ms. Parent said that she decided to go to sleep on the couch in the living room. She had set the alarm clock on her mobile phone and noted that was exactly 1:30 a.m. Mr. Watson said that he had gone to sleep in the bedroom and noted on his clock that it was 2:00 a.m.
[219] Ms. Parent said that because E.L. had been upset earlier in the evening, something I will return to, she was hypersensitive to noise. She did not, however, give any evidence of having heard K. and his grandfather coming home at about 10:30 p.m. or of the two of them coming downstairs at about 11:00 p.m. when Ian left the Residence.
[220] Ms. Parent said that within a minute or two of lying down on the couch she heard both the front door open and two sets of footsteps going upstairs. She then heard “what sounded like chaos”. It sounded as though furniture was being thrown about, as though someone was taking a baseball bat to the place and as though the upstairs suite was being destroyed. She said the noise sounded as though it was above her and that the noise or disruption went on for three to five minutes. She called her husband over.
[221] Mr. Watson, who said that his wife had called him over within a few minutes of his going to bed, described similar noises. He said, for example, that it sounded as though furniture was being moved or tipped over. He believed, however, the noise was coming from the area that would have been in the master bedroom in the Residence. He said that the noise went on for a minute or a minute and a half. Had the noise continued, both Mr. Watson and Ms. Parent said, they would have called the police.
[222] The noise stopped and Ms. Parent said she then heard two sets of footsteps coming downstairs. She had also told the police she heard what sounded like a suitcase being dragged down the stairwell and bumping on every step. She heard the two individuals leave through the front door to the Residence. She was uncertain if Mr. Watson was still with her at that point or if he had gone back to bed. She said that 30 seconds to a minute later she heard two sets of footsteps again going upstairs. She said she then again heard the sound of banging and crashing and furniture being thrown around. She heard two sets of footsteps coming downstairs and she heard a popping sound, like a balloon, and some glass breaking. She called her husband over. She told him she had heard two sets of footsteps coming downstairs. Both Mr. Watson and Ms. Parent said that they heard two men’s voices talking inside the front door to the Residence. One had said they should get out of there and the second said “okay”. Ms. Parent testified that she thought the first individual sounded like G.
[223] Both said they then heard the front door close. Both said they peered through the blinds in their living room. Mr. Watson said he saw a single blonde male individual, who did not appear to be carrying anything, cutting across the lawn. Ms. Parent saw a single individual, who was not carrying anything, heading down the driveway.
[224] Both Ms. Parent and Mr. Watson said that they then went back to bed. Within two minutes, however, they heard their neighbour, Ms. Saunders, banging on their window and telling them that the house was on fire. Each then described what they did as they exited their home with their daughter and various pets. Mr. Watson testified that he had, at some point, run up the back stairs and banged on the back kitchen door of the Residence.
[225] There are various difficulties with several aspects of the evidence of Ms. Parent and Mr. Watson. Both, I am satisfied, endeavoured to be forthright. Both, however, testified that they were in shock when they were first interviewed by the police. Mr. Watson was interviewed at about 6:30 a.m. on April 13 after being up all night. Ms. Parent was interviewed the next day after being released from the hospital and spending the night in a hotel room because her family could not go home.
[226] Nevertheless, significant aspects of their respective accounts of what they reported that they heard or saw does not accord with the evidence of either G. or Mr. Dosanjh. First, both G. and Mr. Dosanjh denied breaking or smashing anything. I accept that evidence. Their purpose or intent that evening was to be stealthy. While it may be, for example, that either G. or Mr. Dosanjh dropped something at some point, though there is no evidence of this, what Mr. Watson and Ms. Parent described was very different. They described a state of mayhem that went on for some minutes. Ms. Parent also said that this state of mayhem occurred at two distinct times.
[227] Furthermore, neither G. nor Mr. Dosanjh gave any evidence of hearing a popping noise or of hearing glass breaking. Both denied pulling a suitcase or anything else down the stairs.
[228] Similarly, neither the evidence of G. nor of Mr. Dosanjh aligned with the evidence of Ms. Parent in terms of what she heard going either upstairs or down the stairs. On G.’s evidence, he went upstairs in the Residence with his father following him thereafter. His father then came downstairs and G. followed. They never went upstairs or downstairs together. On Mr. Dosanjh’s evidence, G. went into the Residence alone and would have gone both up and down the stairs by himself. When Mr. Dosanjh joined G. they went upstairs and down the stairs together but Mr. Dosanjh then ran upstairs again to get the bag of documents that he had left behind.
[229] There are various other problems with the evidence of Ms. Parent and Mr. Watson. The following examples are merely illustrative and not exhaustive of those difficulties. Ms. Parent testified that she too looked out the blinds and saw someone leaving the Residence. She had, however, told the police that it was her husband who had looked out the blinds.
[230] Mr. Watson gave specific evidence of what he had heard the two individuals say at the base of the stairs. He had, however, told the police that he thought he had heard voices but was uncertain of this.
[231] Both gave different evidence of what happened after the second time Mr. Watson was called to the living room by Ms. Parent. At trial Mr. Watson had said he stayed in the living room with his wife when they heard banging at the front window alerting them to the fire. Mr. Watson had, however, told the police that he had gone back to his bedroom.
[232] Ms. Parent and Mr. Watson said, respectively, that they began to hear these noises almost immediately after 1:30 a.m. and 2:00 a.m. Neither estimate can, on the whole of the evidence, be accurate.
[233] Again, none of this is intended as criticism. What happened in the Residence early on April 13, including in relation to issues of timing is, however, of central importance. On account of these and other concerns, I have not relied on the details of the descriptions that Ms. Parent or Mr. Watson provided in relation to what they believed they heard or saw.
[234] I also have little confidence in the evidence of Mr. Dosanjh. I have said that I do not accept that the accused first sent G. into the Residence by himself. I also do not accept that Mr. Dosanjh and G., after they had returned to the truck, sat there for five to seven minutes waiting to see if the police would show up. G. gave no such evidence in his direct evidence or in his cross-examination. I also consider it inherently unlikely that if Mr. Dosanjh was concerned and waiting to see if the police might show up, in connection with an allegation of theft or robbery, that he would then sit in his truck and consume marihuana with his 16-year-old son. In addition, Mr. Dosanjh never told the police, when he was first interviewed, that he and G. waited outside of the Residence for some time before they drove away.
[235] Mr. Dosanjh’s evidence is also not possible with the timelines that exist. G. was at or near the Residence at 1:47 a.m. If G. was in the Residence by himself for five to seven minutes, if G. and his father were then in the Residence for five minutes, if they then carried two loads of items to the truck and if they then sat in the truck for a further five to seven minutes outside the Residence, on the whole of the evidence, would already have been in flames and people would have began exiting the dwelling.
[236] Still further, I do not accept that Mr. Dosanjh heard any noise, suggesting someone was awake, while in the Residence and that he communicated this to his son. G. did not say that he heard any such noise. He also gave no evidence in his direct evidence or in his cross-examination, that his father had ever suggested this to him.
[237] Finally, I do not accept that when Mr. Dosanjh went back into the Residence for a brief period of time and thereafter came out with a book or picture, he did so within sight of his son. This, again, is not consistent with G.’s evidence – whose evidence on this issue I accept.
[238] There was some evidence of the accused’s drug use at trial. Following a voir dire I determined that this evidence, though evidence of discreditable conduct, should nonetheless be admitted. I did so for various reasons that I developed in my reasons on the voir dire. Simply put, however, I consider that the accused’s historical drug use was an important part of the narrative of his relationship with L.L. It was, on her evidence, one of the central reasons that she had left him. Mr. Dosanjh’s alleged drug use was also an aspect of why the Ministry of Children and Family Development contacted L.L. and why she then signed a safety plan. Finally, based on the evidence of various witnesses, it appeared that Mr. Dosanjh may have been using illicit drugs on April 12 or relatively shortly before the fire. That evidence, if established, might be relevant to his state of mind, to his memory of events and to his level of hostility or animosity. I also considered that the probative value of this evidence, for these limited purposes, outweighed the prejudicial effect of that evidence.
[239] One concern with the use of discreditable evidence is that it can overwhelm other relevant evidence and that it can create a diversion from the central issues at trial. There is no reason for that in this case.
[240] I am, for example, satisfied that L.L. honestly believed that Mr. Dosanjh was using drugs in the months and weeks before she left him. I am also satisfied that I am unable to determine whether Mr. Dosanjh was using illicit drugs on April 12 and April 13. One significant aspect of the evidence that each of Mr. Dobson and Ms. Pollard gave in relation to their interaction with, and observations of Mr. Dosanjh, on April 12, turned on his mannerisms, his speech and his appearance. They said that he bounced around, he was “bug-eyed”, he rambled, he was gaunt and sickly. I have said that I have seen a portion of a video of the accused’s interview with the police and I observed him give evidence at trial for a full week. Mr. Dosanjh is now on medications that mute the more exaggerated aspects of his behaviours. He has also, by all accounts, gained some weight and he looks healthier. I am satisfied that many of the attributes and mannerisms that these and other witnesses have described, are or may be, the product of his attention and hyperactivity disorder and of ingrained mannerisms. I have described some of these matters more fully at the outset of these reasons for judgment.
[241] Furthermore, the fact that Mr. Dobson, for example, saw Mr. Dosanjh at about noon on April 12 with white powder under his nose or froth by his mouth is not, without more, sufficient for me to draw any conclusions about his illicit drug use in the hours before the fire.
[242] Though evidence of disreputable or “bad” conduct cannot be used to support or advance propensity reasoning, it can be used to address an accused’s credibility: R. v. G. (S.G.), [1997] 2 S.C.R. 716 at paras. 63, 66-73. Accordingly, I have not made any assessment of the accused’s credibility based on his long history of drug use. I do consider, however, that much of the evidence that Mr. Dosanjh gave at trial in relation to his drug use was not honest. The following are examples of that dishonesty.
[243] Mr. Dosanjh said, in his direct evidence, that in the latter part of March and April 2015, he used methadone, marihuana and Ativan. He denied any other illicit drug use.
[244] Mr. Dosanjh accepted that he had a long history of drug use. In his late teens he began to use heroin. His drug habit was sufficiently serious that he was involved in ten different robberies that he pled guilty to in the late 1990s. He was, in fact, incarcerated when G. was born. He then went on a methadone program and he appears to have been on that program, at most times, since that time. He accepted, however, that he had returned to heroin use from time to time. On his evidence, however, his heroin relapses occurred when L.L. had kicked him out of the home and when it had become more difficult for him to access his methadone treatments. In his evidence he considered, in essence, that these relapses were the result of L.L.’s conduct and not his own. Such deflection is rarely honest.
[245] Mr. Dosanjh also admitted to having used cocaine from time to time in the past. In his direct evidence he had said that this had occurred at a time prior to A.’s birth. He said that he would use cocaine either at the parties of one of the people that he worked for or if they were together after work. He said that this was “just an occasional thing … here and there”. In his cross-examination, however, he admitted that he would actually purchase cocaine from his own supplier and that he was using cocaine once or twice a week.
[246] In both his direct and cross-examination, he said that he had “mostly” stopped using cocaine after A.’s birth. Nevertheless, he repeatedly downplayed L.L.’s ongoing concerns about his drug use as part “of her OCD”.
[247] He was asked whether he had used illicit drugs in late March when he was in a car accident, and on each of April 8, when he served L.L. with custody papers, and on April 12 when he had attended at the homes of Mr. Dobson and Ms. Pollard. In each instance, when he was asked these questions, he unequivocally said that he had not used drugs on those days.
[248] When asked, however in his cross-examination, whether he had used cocaine in January or February or March of 2015, he said “I don’t know … I just can’t say”. I do not believe this. If Mr. Dosanjh was not using illicit or street drugs in this timeframe there should have been no uncertainty on his part about this issue.
[249] Furthermore, Mr. Hadley, who had worked with Mr. Dosanjh for approximately a week in or about February 2015, had testified that he saw the accused snort a substance on the jobsite and he described the accused’s changed behaviours after he did so. Mr. Dosanjh denied that this had occurred and he ascribed Mr. Hadley’s evidence to the fact that L.L. was a friend of Mr. Hadley’s wife. I accept Mr. Hadley’s evidence on this issue. I consider that he was an honest witness. He displayed no animus towards the accused and indeed most of his evidence was quite understated. The fact that Mr. Hadley had had a drug problem in his youth is also relevant to his knowledge of or familiarity with street drugs and gives weight to his evidence.
[250] Finally, Mr. Dosanjh was asked if L.L. had been “concerned” about his drug use and in particular his use of cocaine. He simply would not answer this straightforward question. He purported not to understand the question. Then he said he did not remember. He also said he could not remember if they argued over his cocaine use. Then he attributed L.L.’s comments or concerns to “her OCD”.
[251] Mr. Dosanjh’s evidence is not believable. He had, by his own admission used illicit drugs, off and on, during their relationship. He knew L.L. was strongly opposed to drug use. He knew that her brother had died, of an overdose, almost a decade earlier. L.L. said, and I accept, that Mr. Dosanjh’s drug use was an ongoing source of concern and of friction in their relationship.
[252] Accordingly, I consider that the accused was not honest, in several respects, about his past and more recent drug use.
[253] There are three distinct bodies of evidence that are relevant to E.L.
[254] There are several sources of evidence that address the fear of fire that E.L. held. L.L. testified that her mother had a fear of fire and consequently of lighters and of candles. She said that the accused knew of this fear. She said that E.L. would not, for example, light the candles herself on a cake. Instead she would have L.L. or Mr. Dosanjh do so. If E.L. saw a lighter she would throw it out. L.L. said that when her brother died, E.L., following the Jewish tradition, had had candles lit for her son. E.L. would, however, not light the candles but would have others do so. Her mother would also always remind her to put the candles out.
[255] Ian gave similar evidence. He testified that even when they were married, and by 2015 they had been separated for about 17 years, E.L. had a fear of fire. During the Jewish holiday of Hanukkah, which is celebrated over eight days, it had always been Ian who had had to light the candles which celebrate the holiday. He also referred to the tradition of lighting a candle, for 24 hours, to commemorate the death of a child. He said that at some point after their son Adam had died, E.L. bought an electric candle, both for herself and for Ian, because she was afraid to have a candle lit for 24 hours.
[256] Mr. Dosanjh, however, gave somewhat different evidence. He said that E.L. had a “healthy respect for accidents”. He gave an example of E.L. having him sit at the table, so that he would not fall asleep, when he came home from work and when something was heating up on the stove. Similarly, he suggested, for example, that E.L. had bought the electric candles that Ian had described on a “shopping spree” and because A. could now climb on a chair and get to the area in the kitchen where the lit candles had been kept.
[257] I do not accept Mr. Dosanjh’s evidence. I do not consider that E.L. had a “respect for potential accidents”. Instead I find that E.L. had an acute and long-standing fear of fire.
[258] It appears that E.L. had struggled with depression and/or with anxiety or some similar condition for many years. I am not more precise because no witness provided any formal diagnosis of her condition. There was, however, some evidence of the medications she was taking at the time of her death and of the intended purposes of these medications through the evidence of Ms. Dagenais. The accused said that he had, in the recent past, obtained some Ativan from E.L. It also appears that E.L. had been on various medications for some decades and that she had regularly, and over a long time, spoken of her death and/or of some form of self-harm.
[259] Ian said that during their 20-year marriage, E.L. had spoken of self-harm many times. She would make threats to overdose with medication. He described this as “her modus operandi” and said that she would say such things because she wanted attention. He also said, however, that at some point before 2000, E.L. had overmedicated herself and had received medical treatment including psychiatric treatment. Still further, he said that their son’s death in 2007, had deeply affected E.L., though there was no evidence that she tried to hurt herself at that time. Finally, he confirmed that E.L. had been on various medications when they had been together but that he could no longer recall what those medications were.
[260] L.L. gave very similar evidence. She said that her mother had taken various prescription medications since L.L. had been a child. She said that she had heard her mother talk about self-harm, including talking about cutting her wrists, many times. She described these behaviours as a “repetitive call for attention”, for the focus to be on her and for help.
[261] G. also gave similar evidence. He confirmed he had seen his grandmother use prescription drugs for a long time. He had described her as a “pill popper” when he spoke to Constable Adams on April 12. In relation to E.L. speaking of hurting herself he repeatedly responded that E.L. “said things like that all the time” or gave evidence to similar effect.
[262] Finally, Ms. Parent testified that she had spoken to E.L. in the past where E.L. had said that she wanted to join her son.
[263] G. perceived E.L.’s mental state and behaviours during this time to be largely consistent with her historical condition. When asked if E.L. was struggling emotionally he responded that “she always had her little issues”. Though I consider that G. gave evidence of what he believed to be true, I do not accept his evidence on this issue. His comments and perceptions are likely a result of his having been at home less often during this time frame and of his being less attentive to this issue.
[264] It is L.L. who spent the most time with E.L. in this period and whose evidence is most salient. L.L. agreed that her mother was more depressed in the month before the fire, that she stayed at home more often, that she would sometimes spend the day in bed and that she was taking more medication to “calm her down”. She accepted that at times her mother was “all tranquilized”. She said that she thought her mother was struggling with all the conflict and upheaval. She accepted that her mother was sad and upset and not doing well emotionally. This was particularly so after L.L. had asked the accused to leave the house. L.L. accepted that she was concerned that her mother might hurt herself but said several times that she was not concerned that she would kill herself. She again viewed such comments as a cry for attention or help.
[265] She said, for example, that when she had gone out for the night on April 11, the evening when her mother’s SUV was vandalized, she had had a friend, who knew her mother, stay over. This was partly because her friend was dealing with other issues and partly to have someone keep her mother company. When she had phoned her mother early on April 12, after learning of the damage to her SUV, L.L. agreed that her mother did not pick up the phone immediately and that when she did so she sounded half-asleep and half awake.
[266] Several witnesses addressed E.L.’s mental state on April 12. I have addressed this evidence chronologically.
[267] Constable Adams spoke to E.L. twice on April 12. He described her as annoyed or irritated but not emotional. He said she was calm and civil. Though I consider that Constable Adams was honest throughout his evidence, I do not accept his evidence on this issue. He was relying in large measure on his notes for the details of his various exchanges with L.L., E.L. and the accused on that day. L.L. testified that she had an argument with her mother, in the presence of Constable Adams, on the first occasion that he attended at the Residence. G. had a separate exchange of words with E.L., again in the presence of Constable Adams, on the second occasion that he was at the Residence. Constable Adams did not recall these exchanges and/or their details. It is clear that E.L. was upset on both occasions. On the first such occasion she was unhappy because L.L. was going to the transition house. On the second occasion L.L. did not want G. and his friends in the Residence.
[268] L.L. accepted that her mother was upset that day and that she was upset when L.L. left for the transition house. She accepted that she was worried about her mother because, in part, she knew how her going to the transition house was affecting E.L. She accepted that her mother spoke of “cutting her wrists” but said she was not worried about that. She had heard such things in the past and expected to in the future.
[269] G. testified that on April 12, when he was leaving the Residence and on his way to a movie, E.L. said words to the effect of “… this might be your lucky day. You want to kill me … I might just let you kill me”. He confirmed that he didn’t take this seriously and that “she did it a lot”.
[270] After L.L. left for the transition house, Ms. Parent spoke to E.L. She placed this conversation at about 8:00 p.m. and said that they spoke for almost an hour. E.L. was very upset and distraught. At times she was sobbing. She was upset about the living arrangements in the family and about her car. She said that she wanted to join her son Adam and that she would kill herself later that night. Ms. Parent, as I have said, had heard E.L. make such comments in the past but said that this time E.L. “was way more upset”. Ms. Parent told E.L. that she was better than that and she tried to discourage her from any thoughts of self-harm.
[271] Ms. Parent suggested that E.L. come down later that night for a cup of tea. E.L. declined saying she would go upstairs, take her medication and go to bed. When E.L. left she was not slurring and there is no suggestion that she was under the influence of any alcohol or drugs. Her autopsy confirmed that she did not drink that evening.
[272] L.L. testified that she called her mother at about 10:00 or 10:30 p.m. that night. Her mother did not pick up right away and L.L. had to call more than once. L.L. had said that though she was concerned her mother might have harmed herself, she was not concerned that she would try to kill herself. She said that while they spoke E.L. said she was lonely and that she started to cry.
[273] Ian testified that he brought K. back to the Residence at 10:30 p.m. and that they watched a movie with E.L. until about 11:00 p.m. Ian said that E.L. was sedated. He accepted that she was “out of it” and that she seemed “stoned”. He said that though E.L. acknowledged him, it was apparent that he could not have a meaningful conversation with her. He said that he had no concern over leaving K. with E.L. If he had had any such concern he would not have left K. at the Residence.
[274] I have earlier said that when G. looked into E.L.’s room, at about 1:50 a.m., on April 13, both E.L. and K. were sleeping in their respective beds.
[275] Ms. Dagenais, who gave evidence as an expert witness, has worked for the past decade as a forensic toxicology specialist with the RCMP. She was qualified to give expert evidence in relation to i) the analysis of bodily fluids for alcohol and drugs, ii) the pharmacology of alcohol and drugs including the mental and physical effects of alcohol and drugs on the body and iii) the physiology of alcohol and drugs including the absorption, distribution and elimination of drugs in the body. I considered that Ms. Dagenais was knowledgeable, responsive, plain speaking and forthright.
[276] One of the defence’s theories is that the fire may have been commenced by E.L. The toxicology evidence that relates to E.L. is pertinent to that submission.
[277] Ms. Dagenais had been asked to analyse ten vials of either blood, urine or vitreous fluid that had been taken from E.L. after her death. Her evidence and expert report confirmed, as I have said, that E.L. died because her blood contained a lethal level of carbon monoxide. She also confirmed that no alcohol or illicit drugs were detected in E.L.’s blood or urine. It is, however, the concentrations of other prescription medications in E.L.’s blood that was the focus of both her direct evidence and her cross-examination.
[278] First, Ms. Dagenais explained that the concentrations of a prescription medication found in a person can be at a therapeutic, toxic or lethal level. The words “therapeutic” and “lethal” are largely self-explanatory. The word “toxic”, is potentially misleading. In the context of the concentration of a prescription medication, it simply means that a person has accumulated too much of a drug in his or her body leading to potential adverse effects.
[279] For example, in connection with Lorazepam, an anti-anxiety medication that is also used as a sleep aid, toxic levels of the medication can lead to excessive sleepiness and to shallow breathing. Ms. Dagenais also explained that the toxic levels of the drug were often set somewhat arbitrarily. Thus, the toxic level of a medication is generally set at double the upper therapeutic level.
[280] Ms. Dagenais confirmed that three separate prescription medications were detected in E.L.’s blood. One was citalopram or escitalopram. These two medications are closely related compounds that are indistinguishable by routine screening techniques and both are used to treat depression. The advantages of these two medications, when compared to other older antidepressants, is that they have few if any unwanted side effects. The therapeutic range for these drugs is approximately 65 to 150 ng/mL. Toxicity is associated with blood concentrations of 300 ng/mL and higher and lethality is associated with blood concentrations exceeding 6000 ng/mL.
[281] A second medication found in E.L.’s blood was fluoxetine, commonly called Prozac, which is also used in the treatment of depressive disorders and other conditions such as bulimia and obsessive-compulsive disorders. It too has few, if any, unwanted side effects. The therapeutic level for this drug is set at 100 to 500 ng/mL. The toxic level is set at blood concentrations of 1000 ng/mL and higher. Toxic levels of fluoxetine can, for example, cause agitation, restlessness, nausea and increased heart rate. Lethal levels of the drug are associated with blood concentrations exceeding 6000 ng/mL.
[282] Third, E.L.’s blood contained concentrations of Lorazepam, commonly called Ativan, which is used to treat anxiety disorders and/or is used as a sleep aid. The therapeutic level for Lorazepam is 20 to 250 ng/mL.
[283] The concentrations of Lorazepam, fluoxetine and citalopram/escitalopram that were found in E.L.’s blood was 75 ng/mL, 846 ng/mL and 1576 ng/mL respectively. This concentration for Lorazepam is at a therapeutic level. This concentration for fluoxetine it is above a therapeutic level but below a toxic level and for citalopram/ escitalopram this concentration is at a toxic level.
[284] These initial conclusions are made more ambiguous by the fact that the concentrations of medication are often lowered or halved for seniors. While the age guideline used for some drugs is sometimes 65, and E.L. was 66 at the time of her death, Ms. Dagenais said that this guideline was often considered low and an age of 75 is often considered more appropriate. She also said that in some instances patients are prescribed these medications at higher, and sometimes much higher dosages. A further complicating factor is that some people have adverse reactions when they initiate or cease treatment, or when they increase or decrease their dosages of a medication. Still further, whether the dosage of a drug is toxic for an individual is affected not only by age but also by gender, ethnicity and the co-ingestion of other drugs.
[285] Ultimately this issue does not appear to be particularly relevant, at least in relation to the side effects that are commonly associated with toxic concentrations of these medications. Specifically, the nature of the side effects that can ensue from toxic concentration levels of these medications, and that I have described, have little to do with E.L.’s potential behaviours or with the issues before me.
[286] Ms. Dagenais said, and the product monograms for each of these drugs confirms, that at the start or cessation of their use, or as dosages are increased and decreased, various other side effects are possible. These side effects can include extreme agitation coupled with self-harm and harm to others. There is no evidence that E.L. either started to use or stopped using any medication in the weeks before her death. There is some general evidence from L.L. that her mother was taking more medication in the weeks before her death but there was no evidence of what those increases were or what medication they pertained to. Finally, Ms. Dagenais confirmed that product monograms have to identify any potential adverse effect of a drug regardless of the frequency of that adverse effect.
[287] Ms. Dagenais addressed two other concepts. The first was postmortem redistribution or “PMR” which refers to changes in drug concentration that occur postmortem. Simply put, when a person is alive the concentrations of a drug in that person’s blood are consistent throughout the body. When a person dies the concentrations of the drug, that have been sequestered in organs or tissues such as the heart or lungs or liver, are released into the blood. This can elevate the concentrations of that drug in the blood near those organs to concentrations that are higher than the concentrations that existed at the time of death. Ms. Dagenais said that these postmortem drug concentrations can be “falsely elevated”. Thus, the concept of PMR is relevant because the various drug concentrations in E.L.’s blood that I have referred to may have been falsely elevated.
[288] Ms. Dagenais said that significant releases of increased concentrations of drugs take place within one to two hours of death and that these falsely elevated postmortem concentrations can be significant. Ms. Dagenais said, for example, that concentrations of fluoxetine in blood taken near the heart can be five or six times the concentration in femoral blood. It is for this reason that when blood samples are taken postmortem they are often taken from femoral blood because femoral blood is physically removed from the organs that can release drugs into nearby blood.
[289] Nevertheless, with the passage of time, with temperature, and with other factors elevated concentration of drugs can migrate, postmortem, to other parts of the blood system including to femoral blood. Thus, the longer the time period between when a person dies and blood samples are taken from that person the greater the degree of PMR. The longer the period of time, postmortem, before the body is refrigerated, the greater the release of substances, from organs and tissues into the blood. The more a body is handled the more likely that blood will flow, postmortem, from the heart and other organs to peripheral vessels. The postmortem position of a body can also be relevant. If that body is in a sitting position, as opposed to a prone position, gravity will draw blood downwards from other vessels or organs.
[290] Ms. Dagenais also said that medical interventions such as CPR, with repeated vigorous compression of the heart, will again force blood from the heart to other peripheral vessels. These processes need not be applied for very long. When a person is alive it takes only one to two minutes for blood to circulate through the body.
[291] What this means is that the concentration of a drug found in a person’s blood, including in femoral blood, can be higher, and potentially significantly higher, than the actual concentration of the drug at the time of death. There are, however, several difficulties. PMR is not yet fully understood and research to better understand the process, and what factors contribute to PMR, is ongoing. Furthermore, different drugs are affected by PMR differently. Fluoxetine, for example, is subject to significant PMR. Citalopram is less subject to PMR. Other drugs are not affected at all. Thus the amount of correction that should be made, on account of PMR, to postmortem drug concentrations will vary from drug to drug.
[292] Accordingly, PMR is not predictable and the interpretation of postmortem drug concentrations is difficult. Ms. Dagenais accepted that PMR is a “toxicologist’s nightmare”.
[293] In this case the likelihood of PMR having occurred in E.L. is potentially affected by several factors. She was found sitting in a chair though she would not have been in that position, post-mortem, for very long. She was then carried outside by firefighters. There was evidence that paramedics then performed CPR on E.L. for five to seven minutes. Ms. Dagenais testified that five to seven minutes of CPR would “definitely” have caused PMR and that there would have been “considerable mixing of heart and femoral blood”. Ms. Dagenais also accepted, however, that there was no academic or scientific literature that addresses the effect of CPR on PMR. E.L.’s body was then placed in an ambulance. An Admission establishes that that ambulance was parked outside of the Residence until just before 10:00 a.m. the next morning before being taken to the Vancouver General Hospital and being placed in a refrigerated locker.
[294] Various studies in relation to various medications indicate that PMR can have wide ranging consequences. In one study that was referred to, in relation to citalopram/escitalopram, PMR affected blood level concentrations by factors of anywhere from one to ten. At the high end then the actual level of citalopram/escitalopram had been increased by a factor of ten. Thus, a blood concentration, at the time of death, would be elevated from, for example, a concentration of 100 ng/mL to a concentration of 1000 ng/mL. The average impact in these various trials increased blood concentration levels by a factor of 2.5. Similar trials for fluoxetine indicated that concentrations of the drug in the heart blood and in femoral blood varied from being almost consistent or neutral to being almost six times as high. The average of these trials yielded a difference in concentrations of about 2.9. Thus the concentrations of fluoxetine in heart blood would be almost triple what it was prior to death.
[295] Ultimately, with the number of considerations at play and the uncertainty in both the evidence and the scientific literature it is not possible to draw any firm conclusions about what impact PMR had on the concentration levels of the various medications E.L. was taking and what those concentrations actually were before she died. What is likely is that some downward adjustment would have to be made to some of the drug concentrations levels that I have referred to. It seems unlikely, however, that any such downward adjustment would bring E.L.’s drug concentration levels, particularly of citalopram/escitalopram, below toxic levels.
[296] The second concept addressed by Ms. Dagenais was serotonin syndrome. In her written report and in her direct evidence Ms. Dagenais said that this syndrome, which can in some cases be life threatening, was caused by “the combination of toxic levels of citalopram and fluoxetine”. The syndrome can create various adverse effects including confusion, hyper-excitability, agitation or restlessness, tremor, shivering, loss of coordination or twitching muscles, dilated pupils, increased body temperature, heavy sweating and diarrhea.
[297] In her oral evidence, however, Ms. Dagenais said that serotonin syndrome can occur at toxic doses of either fluoxetine or citalopram/escitalopram. Once again the syndrome can be triggered at relatively lower doses in older populations though what constitutes an “older population”, in relation to these specific medications, is unclear. Conversely, by way of example, lorazepam may abate the symptoms of serotonin syndrome. The syndrome can also be triggered at the initiation or cessation of therapy in some individuals. Such symptoms usually diminish after a few weeks. There was no evidence that suggests E.L. had ever previously suffered from an episode of the syndrome.
[298] The evidence of the various individuals who were involved in the investigation of the cause of the fire at the Residence occupied approximately ten days.
[299] The Crown led evidence from five individuals who were involved with the initial fire investigation that was undertaken by the police. In combination, the evidence of these individuals occupied approximately five days. These witnesses included Sgt. Wong, who took numerous photographs as the fire investigation proceeded, and Constable Klaver who was responsible for the crime scene and for exhibits. It also included Cpt. Mark Timmons of the Richmond Fire Department and Constables Lin and Sallinen of the RCMP’s Economic Crime Unit which undertakes fire investigations (collectively the “First Team”).
[300] None of these latter three witnesses was ever qualified to give expert evidence. Each, instead, gave evidence of what they saw and did in and around the Residence in the days immediately after the fire. It is clear, however, that their purpose was to ascertain both where the fire started and what caused the fire. Thus, the object of their investigation was to determine both “origin” and “cause”.
[301] It is relevant that both Constable Lin and Cpt. Timmons had relatively little experience investigating fires. Constable Lin had only acquired certain relevant qualifications about six months before the fire. Cpt. Timmons, though a firefighter for many years, had, by 2015, only been involved in investigating fires for about one year and he had, by his estimation, been involved in perhaps 30 such investigations. He described himself as a “new” or “inexperienced” investigator at the time. Similarly, Constable Klaver considered that the search or investigation was outside of his expertise.
[302] These individuals worked together cooperatively and as a group. Each of them emphasized that though Cpt. Timmons was involved, the investigation remained a police investigation.
[303] The general chronology of what these individuals did is straightforward. Cpt. Timmons went to the Cornerbrook House at about 5:00 a.m. on April 13 when the fire crews were wrapping up their work. He spoke to several persons including some of the residents of the Cornerbrook House and some firefighters. He also walked around the structure to get a feel for its size and for the damage that had been caused. He was present when the coroner attended and the ambulance that carried E.L.’s body left the scene. He was present when a tarp was placed over the roof of the Residence to protect the scene because it had started to rain.
[304] A group of police officers met in the Richmond RCMP’s detachment offices at perhaps 9:00 a.m. on April 13. Some of them then made their way to the scene of the fire shortly after noon. Because they were still waiting for a search warrant, however, they left. They returned the next morning at approximately 9:00 a.m. with that warrant in hand. They were met by Cpt. Timmons. The gas and electricity to the structure had been disconnected. The weather had improved and the tarp that covered the Residence was removed.
[305] I have addressed the activities of the First Team in some detail to demonstrate the relative thoroughness of their activities. The evidence of each of Constables Lin and Sallinen and Cpt. Timmons was, in many respects, very similar. They agreed that it is standard protocol, when investigation a fire, to start in the areas with the least damage and to work towards the area with the most damage. The area with the most fire damage, it was agreed, is generally where the fire started. They agreed that they worked their way, as a group, from one area or from one room to the next.
[306] Accordingly, the group started their work in the upper suite of 10160 Cornerbrook Road and then moved to the lower unit of that side of the dwelling. Neither unit had any flame or fire damage. Both units had some relatively minor soot or smoke damage.
[307] The group then went into the suite below the Residence. There was no flame damage in this suite. It is relevant, however, that this suite contained the Hydro box and the fuse box or circuit panel for both units on the 10140 side of the Cornerbook House. Two of the circuit breakers on that panel had been tripped.
[308] The group then started to investigate the Residence. Once again they moved from the area of least damage to the area of the most damage. They began this aspect of the investigation in the carport below the master bedroom. Photographs revealed, and their evidence described, the debris in the carport. It was apparent that parts of both the floor of the master bedroom and the roof of the carport had fallen into the carport. This was likely the product of both fire damage and the weight of the water, used in fighting the fire, bringing the ceiling down. The witnesses explained the burn and char damage to the joists that were below the floor of the master bedroom. Those joists showed burn damage on the upper side that faced the master bedroom but no such burn damage on the lower side that faced the ceiling of the carport.
[309] They first examined the debris in the carport. They worked “from the outside in”. Their examination included the drywall, insulation materials and a quantity of char or burn debris. All three engaged in this process. They each sifted through this debris “layer by layer” and on their hands and knees using either their hands or small trowels as they searched for material. When they finished with a quantity of material they would move it, using buckets, to another “discarded pile”.
[310] None of them located any ignition sources such as a match or lighter or gas canister nor did any of them note or recall finding any electrical devices such as, for example, an iPad, laptop, or other tablet or phone or any electrical wiring or switches. Each said that they were looking for such material. Cpt. Timmons, for example, said they were looking for anything that “could be related to the fire”. This included, for example, “matches, electrical wiring, switches, lights, remains of electrical devices, tablets, laptops”. Cpt. Timmons said he would have made a note had they found anything. Cpt. Timmons said they did locate a few small pieces of phone or data wire which is smaller than household wire.
[311] In addition, Cpt. Timmons used a hydrocarbon detector at various times on various materials. That device assists in identifying the presence of an accelerant on or in materials. He said that he received a few low readings on some of the pieces of insulation that were in the debris pile.
[312] The group then moved into the Residence. Each of Constables Lin and Sallinen and Cpt. Timmons described this process and what they saw. They went through the various rooms in the Residence working towards the master bedroom – the room that clearly had the most damage and the room where they considered that the fire had started. The contents and condition of each room was briefly described by each witness. What is important is that no other room, and none of the contents of any other room, other than the master bedroom, had any flame or burn damage. In some rooms, including the bedroom where K. and E.L. slept, there was evidence of heat damage in that some items in the room had melted. On one wall a thermostat had melted. There was also very severe smoke and soot damage throughout the Residence and the smoke or thermal lines in several rooms and areas came down to within a few feet of the floor. In some areas, the main bathroom and the hallway above the stairs being examples, the ceilings had been pulled down by firefighters.
[313] The group then moved to the master bedroom. The light switch to the master bedroom was in what would conventionally be the “off” or “down” position. It was this room, and the contents of the room, that had by far the greatest damage. Once again, both the photographs that were referred to at trial and the evidence of various witnesses addressed, in detail, the condition of each side and part of the room as well as the condition and placement of each item of furniture and each electrical outlet in the room. This included, for example, the remains of a television screen or computer monitor. The focus, particularly in cross-examination, was on all things electric because electric devices are potential ignition sources. Several witnesses agreed or accepted that if electric devices are found they would normally be, or should be, photographed. Sometimes they are examined further in a laboratory. They confirmed that they found no phones or tablets. Cpt. Timmons confirmed he did not recall finding any extension cords or multi-plugs or power bars. He had no notes relating to such things and said that he would have made a note if he had found anything.
[314] Both the ceiling and the roof in a part of the master bedroom, above where a full size bed had been, and towards the patio doors, had been completely destroyed by the fire. So too was much of the floor in the approximate area of where the bed had been. Indeed, “the area of greatest damage was at the foot of the bed”. It was possible to see through the floor to the carport below though the central joists still remained in place. The glass was missing from the patio doors. This, it seems clear, was caused by the fire rather than by the actions of firefighters. Some studs in the walls, that had started to turn to charcoal, showed a distinctive “alligator” pattern. In addition, the paint in some places had peeled from the heat.
[315] As the group worked their way through the master bedroom they used the same approach that they had used in the carport. Thus, they removed the top layer of material first and worked down. As they moved into the room, “foot by foot”, they removed the drywall and insulation from the walls and ceiling that was falling off and they took these materials outside. The group worked in the master bedroom until a little after 6:00 p.m. on April 14.
[316] They continued their work in the master bedroom the next morning starting at approximately 9:00 a.m. They sifted through material looking for any evidence of an ignition source, including electrical devices, or for other evidence that would help them determine the cause of the fire. As they finished examining material they either removed that material or threw it through the floor spaces into the carport below.
[317] Over the course of the day each piece of furniture, or what remained of that furniture was examined. The damage to these pieces of furniture varied dramatically. The mattress on the bed had been completely burned away. All that remained were the springs in the mattress. A dresser on the southwest corner of the bedroom had been substantially destroyed. A small bedside table in the northwest corner had been completely destroyed. Two other dressers on the south wall were heavily damaged with the degree of damage decreasing as the dressers were removed from both the area of the bed and the patio doors.
[318] Each electrical box or outlet was examined. Specifically, the faceplates were removed and the wiring inside the boxes was examined. The studs by these electric outlets were examined and, depending on their location, showed different degrees of fire damage. Though much of the drywall and ceiling had already been removed by firefighters other areas of drywall were removed, in part, to better examine the studs and walls for fire damage.
[319] Cpt. Timmons continued to use his hydrocarbon detector extensively. Periodically, based on either low readings or unusual burn patterns, pieces of what remained of the carpet in the master bedroom were cut and provided to Sgt. Klaver for future forensic testing.
[320] Constables Lin and Sallinen and Cpt. Timmons then moved each piece of the remaining furniture in the master bedroom outside and placed that item on a blue tarp that had been laid in the driveway. Each of those items was placed in roughly the same location as it had been in the master bedroom. This was done partly so that the furniture could be examined more carefully and partly so that the fire patterns on the walls behind where the furniture had been could be examined more thoroughly.
[321] With this done all of the remaining char and debris in the master bedroom was examined and sifted through using the same process or methods as had been used in the carport. After this was done this remaining debris was shoveled or swept through the gaps in the flooring to the carport below. Thereafter the floor was cleaned, with water and likely a broom, so that the burn patterns on the floors could be examined more carefully. The investigators finished their work at the Residence at approximately 7:30 p.m. on April 15.
[322] Several further matters are of note. First, the area of greatest damage, in the Residence and in the master bedroom, was at the foot and lower portion of where the full-size bed had been and towards the floor of the patio door that I have described. It is here that both the floor and the ceiling and roof of the master bedroom had burned away. It is here that the joists in the floor and the trusses in the roof had significant burn damage.
[323] Second, when Constables Lin and Sallinen, went into the master ensuite bathroom, they saw some woman’s clothing in the toilet bowl. Third, the investigators found no evidence of matches or lighters or gasoline containers/canisters in their search of the Residence. Finally, the Admissions of Fact establish that none of the eight pieces of carpet or other items that had been seized and then sent for forensic testing evidenced the presence of any ignitable liquid, or its residue, that might act as a fire accelerant.
[324] In a similar vein, Cpt. Timmons testified that on April 14, he was taken to the Algonquin Drive Home where he was asked to test clothing, belonging to the accused, with his hydrocarbon detector. He thereafter went to the RCMP detachment and, using his hydrocarbon detector, tested parts of Mr. Dosanjh’s truck. He confirmed that to the extent he received any positive hydrocarbon readings these readings were all very low.
[325] On the morning of April 16, there was a meeting at the RCMP detachment offices. Constable Klaver, Constable Lynn and Cpt. Timmons, together with others, including Sgt. Blair, attended the meeting. Cpt. Timmons communicated that, at that point, he considered that the cause of the fire was “undetermined”.
[326] At trial Cpt. Timmons explained there are four possible conclusions available when investigating the cause of a fire. A cause can be “natural” as in the case of a lightning strike. A cause can be “accidental” as when something is left on an open stove. A cause can be “undetermined” when it is not possible to say what caused a fire. Finally, a fire is “incendiary” when it is set on purpose. Cpt. Timmons further explained that in order to determine that a fire is “incendiary” it is necessary to find evidence of either an incendiary device, such as matches or a lighter, or evidence of an item, such as a gasoline can, that should not normally be in the location where the fire occurred. Cpt. Timmons said, that from his perspective, if he was unable to find any physical evidence of something starting a fire he would conclude that its cause was “undetermined”.
[327] The members of the group that attended this April 16 meeting appear to have concluded that they had to find and retain an individual with significant expertise in determining the origin and cause of fires and who had been recognized, by the courts, as having such expertise.
[328] Constable Lin, Detective Klaver and Cpt. Timmons, then returned to the Cornerbrook House. They wanted to look at a few further things. They met with Mr. Reed, a fire investigator who worked for the insurance company that had insured the Cornerbrook House. Mr. Reed had had no interaction or involvement with the investigation until that time.
[329] Shortly thereafter Mr. Reed was given authority to enter the Cornerbrook House. He began his investigation after 11:00 a.m. on April 16. Mr. Reed had a further meeting with several police officers at about 3:00 p.m. that afternoon. The purpose of that meeting was to consider whether the police might retain Mr. Reed to assist them with their investigation.
[330] Mr. Reed was qualified, without objection, as an expert in fire investigation and in determining the origin and cause of fire. In that connection he prepared a detailed expert report. He testified for five days.
[331] Mr. Reed had worked as a firefighter for a brief period of time. In 1994 he obtained a B.Sc. in Chemical Engineering. In 2011 he acquired an MSc in Fire Protection Engineering. He holds various other designations. He is a member of various professional organizations that are associated with the investigations of fires and he is regularly involved in organizing and speaking at conferences that have fire investigations as their focus.
[332] He became actively involved in doing fire investigation work in approximately 2002. He explained that at this time there were numerous engineering groups that did, for example, accident reconstruction work. There were, however, no comparable groups that did fire investigation work. He and two partners created Sereca Consulting Inc. The primary focus and work of that entity was the investigation of fire and explosion incidents. Sereca grew to a national entity with 150 employees. The company was acquired by an American entity, with some 1300 employees worldwide, in 2015. Mr. Reed is now a Vice President in that company. For approximately 15 years Mr. Reed attended at the scene of different fires or explosion events between 150 to 200 times a year. In the last few years he has more commonly overseen the work and reports of others and he is responsible for large loss investigations. Mr. Reed estimated that he had been personally involved with over a thousand fire investigations. He had also reviewed the work and reports of others in connection with a further two thousand fires.
[333] Apart from having significant experience and expertise I consider that Mr. Reed was straightforward and responsive. He understood his role as an expert and I had considerable confidence in his evidence.
[334] The National Fire Protection Association has produced a document or guide, known as NFPA 921. That document provides, inter alia, a detailed methodology for the investigation of fires. The document is hundreds of pages long. It is peer-reviewed and it appears to be regularly updated in that there is reference to both a 2014 and a 2017 version of the document in Mr. Reed’s report. Mr. Reed confirmed that he followed the structure and guidance in NFPA 921 in his own investigation.
[335] In his evidence and his report Mr. Reed emphasized that the NFPA 921 methodology relies on the scientific method which, in turn, has numerous distinct steps and requirements. Finally, it is important to recognize that the object of a fire investigation, undertaken under NFPA 921, is to determine “the most probable cause” of the fire.
[336] Mr. Reed began his work at the Cornerbrook House, as I have said, after it was released by the police. On the morning of April 16, and while the police were still present, Mr. Reed had a dog, that had been trained to identify eight different ignitable liquids, with him. He asked the officers present whether they thought it would be worthwhile for him to go through the Residence with the dog before they left. He did so and confirmed that the dog had not indicated that any of the ignitable liquids, that the dog was trained to identify, were present.
[337] Mr. Reed’s evidence and his report tracked both his activities on April 16 and 17 and the observations that he made. He had taken hundreds of photographs and he was assisted in that activity by a colleague. His evidence referred to more than 120 such photographs and he described the significance of each such photograph.
[338] Mr. Reed confirmed that he began his investigation by first examining the exterior of the Cornerbrook House and that he focused on the visible exterior damage, on different sides, of the Residence. He explained that he was, among other things, looking for both exterior and interior fire patterns. Such patterns would include, for example, where wood or furniture is consumed and where it is not. In this case, for example, there was concentrated damage to the roof of the dwelling above the master bedroom. There was, however, no fire damage to the carport itself. Similarly, there was charring to the wood frame of the door to the master bedroom. There was no such charring to other door frames in other parts of the Residence. Still further there was damage to the inside of the wood railing on the balcony off of the master bedroom but no such damage on the outer face of that railing.
[339] Mr. Reed explained it was also possible to discern where drywall or other materials had naturally burned or fallen away in which case there would be damage to the walls behind, and where it had been pulled away by firefighters, in which case there is no such damage.
[340] He was able to determine where items had been at the time of the fire and whether items had been moved after the fire had been extinguished from visible “protection patterns”. Simply put, if, for example, there had been a pillow on the floor in the living room at the time of the fire the carpet or area below that pillow would be less damaged or soot stained. If that pillow or other similar item were subsequently moved a “protection pattern” would now be visible.
[341] Various pieces of furniture, such as the various dressers in the master bedroom, had significant damage on their front or outer face. The back of each of these dressers had less such damage. This is consistent with the dresser being exposed to fire damage from the front rather than, for example, a fire that started in an electric circuit or in an extension cord behind those dressers.
[342] These fire patterns also included thermal lines. The thermal lines immediately outside of the master bedroom were lower than those lines were further away. Mr. Reed described the relevance of diagonal burn patterns on the master bedroom door. These patterns showed greater burning inside the room and that the fire had then vented to the outside of the room.
[343] These various patterns are primarily important to the origin of the fire in the Residence but they also have some relevance, as I will explain, to how the fire was caused.
[344] After Mr. Reed had entered the Residence he worked his way through different rooms. He confirmed there was extensive smoke and soot damage throughout the Residence. He confirmed, using his notes, that he had seen a “Ministry Safety Plan” dated April 9, 2015, on the living room table.
[345] Both Mr. Reed’s evidence at trial, including his reference to diagrams and photographs, and his report addressed the condition of the master bedroom and its contents in considerable detail. That evidence addressed the physical condition of the master bedroom, the ensuite bathroom and the walk-in closet. There was no localized burning in either of these latter two areas.
[346] Mr. Reed’s evidence also addressed the location and condition of the furniture that had been in the master bedroom. It further addressed the electrical services to the Cornerbrook House, to the Residence and to the master bedroom. Addressing such electrical services is an important aspect of the NFPA 921 methodology. Mr. Reed addressed the condition of each of the four electric outlets in the room. He addressed the condition of the two power cords that were connected to the outlet in the southwest part of the room. Similarly he addressed the condition of a multi-plug adapter that was connected to the outlet at the northwest corner of the room. Still further he addressed the condition of various aluminum wire circuits in the attic above the master bedroom as well as the ceiling light fixture and its various components. He addressed each of these matters in his oral testimony and in his report.
[347] Ultimately Mr. Reed concluded, and I accept, that the fire originated on or near the bed in the master bedroom. Mr. Reed said that this conclusion was consistent with his examination of various electrical components and with both the fire patterns and the fire dynamics that he had described. These matters are also addressed at some length in his report. Figure 33 in Mr. Reed’s report describes 16 different vectors, based on 16 different observations or pieces of evidence that he addressed in his evidence, that collectively point towards the area of the bed as the origin of the fire. To be sure some of the pieces of information are quite general. For example, Mr. Reed’s observations relating to the exterior of the Residence would be relevant to placing the origin of the time in the master bedroom. They would be less helpful in identifying the origin of the fire within the master bedroom. In addition the origin the fire was not fixed with precision. Instead Figure 33 has within it series of concentric circles with the centre of the innermost circle being on the lower one third of the bed. Mr. Reed’s report concludes “… The trend in vectors is towards the central area of the bed at the northwest corner of the master bedroom as outlined by the red circles depicted in Figure 33 below”.
[348] The central focus of the cross-examination of Mr. Reed, as it related to his conclusions on the fire’s origin, was directed to whether the influx of air or oxygen, that occurred when the glass on the patio doors in the master bedroom gave way, would have influenced the degree and location of damage in the master bedroom. Mr. Reed accepted that this was so, but only to a degree. Mr. Reed’s report, which was developed in his evidence, states:
The overall fire damage to the ceiling, roof, and floor of the master bedroom is a function of the concentration of fuel load in the northwest quadrant, available oxygen, and duration of burning. Further, the large vent opening created by the patio door would provide sufficient oxygen and a pathway of fire travel to cause the concentration of damage to the roof.
An approximation of the time of burning can be estimated by considering the expected fire growth of a bedroom on fire. Flashover represents a transition in fire development from a condition where the fire is dominated by burning of the first item ignited (combustible materials on the bed) to a condition where the fire is dominated by burning of all items in the compartment (entire bedroom). This transition is generally characterized as the transition from a "fire in a room" to a "room on fire". Another indicator of flashover is the change from a state whereby the compartment fire is limited by fuel availability, to a state where the fire is limited by oxygen availability. At this stage, the fire is typically observed to be venting from the entire openings of doors and windows. In this instance, the fire is first reported at 02:05 hours as venting from the entire patio door opening.
…
Overall, the fuel load present in the bedroom, the overall configuration of the room, and the large” openings created by the patio door and interior spaces would provide sufficient fuel and air for flashover to occur from a fire originating in many areas of the bedroom. However; given the concentration of damage to the area of the bed, the absence of concentrated damage to other areas in the room, the significant fire damage to the roof and floor above and below the bed, and the observation of the fire venting from the patio door within minutes after the fire starts is only consistent with a fire originating from the area of the bed. Had the fire originated from an area other than the bed, the fire would have required a greater time to develop to a sufficient size before igniting the bed in order to increase in energy sufficient to drive the fire to flashover. As the concentration of damage was not adjacent to the bed but instead central to the bed, a fire developing and subsequently igniting the bed as a secondary fuel is not consistent with the resulting fire damage or reported timeline.
In summary, the consideration of witness observations and reported activities, the resulting condition of the electrical systems and temporary components in the bedroom, the remaining fire patterns, and the consideration of overall fire dynamics of a compartment fire is only consistent with a fire originating from the surface of the central area of the bed in the master bedroom.
[349] It is Mr. Reed’s conclusions in relation to the cause of the fire that are particularly relevant. Aspects of the evidence that I have already described underlie Mr. Reed’s ultimate conclusion that the fire in the Residence was “probably” an incendiary fire.
[350] Mr. Reed, in both his report and in his evidence, explained why the fire did not start, for example, in the ceiling light fixture, or the electric outlets, or the power cords that he found, or the multi-plug device that he found, or from any other electric appliance in the bedroom. He explained that one of the 15 amp circuit breakers that had been tripped, and that I have referred to, corresponded with the circuits that had been routed through the attic above the master bedroom. Mr. Reed said that given the fire and heat damage in that area, a tripped breaker is “an expected event”. The second breaker corresponded to the kitchen range and was not relevant.
[351] Both his direct evidence and the evidence he gave on cross-examination, in relation to each such notional possibility for the cause of the fire, was detailed and persuasive. He provided cogent and persuasive reasons for why he was satisfied that the fire was not accidental, for why he was satisfied that it had not started as a result of an electric malfunction and for why it did not start in or with any electrical device.
[352] He then focused on several further facts. First, he had been told to assume that persons had entered the Residence shortly after 1:47 a.m. on April 13. This time corresponds to the phone call that G. received as he arrived at the Residence. Second he was told that these persons had committed an act of vandalism, in the form of putting clothes in the toilet, while in the Residence. Third, he was told to assume that the fire had been seen venting from the master bedroom in the Residence by approximately 2:05 a.m. on April 13. This time corresponds to the approximate time when Mrs. Saunders had become aware of the fire and began to alert her neighbours. The fire department was first contacted, as I have said earlier, at 2:08 a.m.
[353] I have already quoted a portion of Mr. Reed’s report that explains or describes what constitutes “flashover” in the context of a fire. Other elements of Mr. Reed’s evidence, that address how long it takes for a room to reach a “flashover” state are relevant. Mr. Reed’s report concisely states:
Flashover times of 3 to 5 minutes are not unusual in residential room fire tests and even shorter times to flashover have been observed in non-accelerated room fires. Room fire tests of similar size to the master bedroom that have been conducted by Sereca Fire Consulting have reached flashover in as little as seven minutes and as long as 15 minutes. Accordingly, a reasonable estimate of the ignition time based on the observation of flames venting from the entire patio opening at 02:05 hours would be 3 - 15 minutes earlier, or within the times of approximately 01:50 hours - 02:02 hours.
[354] What this means is that the appropriate length of time that G. and his father were in the Residence or after they had left the Residence, coincides precisely with the time that is required for a room, of the size of the master bedroom, to achieve a flashover state. It is the very fact that the timeframe in issue is perhaps three to fifteen minutes long that is directly relevant. If, conversely, G. and the accused had been in the Residence two hours, or four hours or six hours before the fire was observed their attendance at the Residence would be much less relevant.
[355] The defence challenged Mr. Reed’s conclusions on three different basis. First, it argued that either Mr. Reed, and necessarily the police investigators and Cpt. Timmons, had failed to identify some electrical device in the master bedroom that started the fire. Because the fire clearly started in the master bedroom that electric device or wire or circuit would have had to been located in that room.
[356] For example, and there were many such examples, Mr. Reed was asked whether a light bulb, from the night lamp by the bed, might, if the lamp were on and laying on the comforter on the bed, have started the fire. Though Mr. Reed thought this unlikely and that the bulb would only char the comforter he accepted that this was possible. He also said, however, in connection with other electric devices, that no current flows through these devices unless at least some part of the device is on.
[357] As it pertains to the night lamp that was by the bed in the corner of the room, and I recognize that the accused thought there were two such lamps, there was no evidence either that this lamp was on or that it had been upended onto the comforter with the other objects on the bed. Mr. Dosanjh did not give evidence of seeing an upended lamp, that had been turned on, lying on the bed. Neither he nor G. suggested they had knocked over a lamp. Indeed neither of them suggested that they went anywhere near the corner lamp(s). G. also testified that after he saw clothes in the bathroom toilet he looked into the master bedroom to see whether there was anything else that was odd. He saw nothing that he considered odd. Neither G. nor Mr. Dosanjh smelled anything burning. If that night lamp had been left on, and had somehow been upended by L.L. when she was packing her clothes to leave the Residence, before 6:00 p.m. or some eight hours earlier, there would likely have been some sign of this.
[358] Mr. Reed was also asked, for example, about whether there might have been a phone or tablet or computer, that was charging in the master bedroom, and that caused the fire. Mr. Reed said that though such circumstances might cause “a fire” they did not cause “this fire”.
[359] There was a significant amount of evidence, in the earlier testimony of several witnesses, that addressed this possibility. Each of L.L., G. and the accused gave evidence about what members of the family owned what phones, or tablets or computers. L.L. agreed that she would often charge her phone or a tablet in the master bedroom and that she would sometimes do so on or near the bed. G. and Mr. Dosanjh gave similar evidence.
[360] Apparently A. would often watch videos or play a game on a phone or tablet. L.L. said that he would do so primarily on a phone or tablet. She accepted, however, that he might sometimes do so on an older Dell Computer. That Dell Computer used an after market charging cable which, Mr. Reed accepted, would increase the risk of it overheating. He would often play these games in the master bedroom and he often did so on the bed in the master bedroom. The defence posited that on April 12, when L.L. and A. hurriedly left the Residence, they may have left the Dell Computer or a similar device behind while it was charging on the bed.
[361] There are several considerations that were identified in the evidence, that do not support this. First, each phone was owned by a family member. There is no evidence that any member of the family was without their phone on April 12 or April 13. Certainly L.L., G. and the accused were not. Similarly, L.L. said that she still had her tablet. Second, the evidence is that as L.L. was packing to leave for the transition house she had G. care for A. Both L.L. and G. said that this had not occurred in the master bedroom though they accepted that A. may, at some point, have wandered into the master bedroom. Next, L.L. testified that she did not believe the family used the old Dell Computer very often though she accepted that they may have done so from time to time. Importantly, none of Mr. Reed, Constables Lin or Sallinen or Cpt. Timmons located the burned frame of a tablet or computer, or of a keyboard, when they searched through the master bedroom or the pile of debris in the carport below the master bedroom. I have earlier described, in some detail, the search that each of the First Team and that Mr. Reed undertook to locate ignition sources including electrical devices. I did so to show the relatively high level of care that was taken by them in their respective investigations. Having said this I recognize that Mr. Reed identified various extension cords, multi-plugs and electrical devices, such as an alarm clock, that had not been identified by the First Team. Mr. Reed considered it likely that if there had been such a burned computer frame he would have found it as he sifted through the materials that he examined. It is clear, however, that with the volume of char and burned material that was present it is possible that something may have been missed.
[362] A further fact is relevant. This would pertain to any computer or tablet that A. may have been playing with or that was charging. Indeed, it would apply to any electric device in the Residence and in the master bedroom. I referred to the electric panel that serviced the Residence and to the fact that two circuit breakers in that panel had been tripped. I have said that Mr. Reed considered that those breakers, or more specifically one of them, was tripped as a result of damage to wiring in the attic that was caused during the fire.
[363] The purpose of a circuit breaker in normal circumstances, however, is to stop the flow of current in an electric circuit as a safety measure. Thus, in normal circumstances, the purpose of a circuit breaker is to shut off or interrupt current flow caused by excess current from a short circuit or from an overload. If there was any problem with any electric device, such as a tablet, or computer, or television, or alarm clock, or power bar, the first line of defence would be for the circuit breaker to be triggered. This would then interrupt the flow of current to that device or object. For any of these devices or objects to have caused the fire not only would the device have had to fail and somehow short circuit but the intended protection of the circuit breaker would also have had to fail. In saying this I understand that the circuit breakers might not address a device that simply overheated though overheating can lead to a short circuit and an arc.
[364] Accordingly, there would have had to have been some electrical device on or near the bed that failed, the remains of which were never found and that did not then trip the circuit breakers as it ought to have.
[365] In addition, this confluence of failures and factors would have had to have occurred at some point between about 1:52 a.m., the approximate time when the accused and G. had left the master bedroom and the Residence, assuming they were in the Residence for about five minutes, and approximately 2:00 a.m. I have said 2:00 a.m. because by 2:05 a.m. the fire was in a full “flashover” state.
[366] I consider that this prospect is both inconsistent with common sense and that it is fanciful. These are conclusions that I will return to shortly.
[367] The second category of concern raised in connection with the opinion of Mr. Reed arises from the loss or spoliation of evidence. When Mr. Reed began his work the First Team, consisting of Constables Lin and Sallinen and Cpt. Timmons, had been through the Residence and through the master bedroom. They had removed the debris and furniture from the master bedroom. They had washed and cleaned the floor in that room. The question is whether they may have removed or destroyed some evidence that might have been important or useful for Mr. Reed.
[368] Mr. Reed did not suggest that his work was impeded or impaired by the loss of any evidence. He sifted through the debris the others had already gone through and he said that he did so twice. Indeed he located various items that the First Team had not. He also had access to the photos that the First Team had taken. Accordingly, I do not consider that there is any basis to believe that Mr. Reed’s conclusions were undermined by the potential loss of some form of evidence.
[369] Third, NFPA 921 cautions investigators to be wary of bias in their work. Mr. Reed accepted that such bias can arise either in jumping to a conclusion too quickly or in using evidence to confirm an existing conclusion or both.
[370] In this case, when Mr. Reed met with the police, at about 3:00 or 3:30 p.m. on April 16, about their potentially retaining him, they asked him about what opinions he had formed. At that point Mr. Reed had been investigating the fire for less than a day.
[371] Mr. Reed accepted, in his cross-examination, that it was contrary to the terms or guidance of NFPA 921 to formulate an opinion until the various steps required of an investigation were completed. It was suggested to Mr. Reed that he told one or more members of the group of officers that he had met with that he thought the fire at the Residence had been “a set fire” or an “incendiary” fire. Mr. Reed said that he would not use language such as “a set fire” and he said that he did not say, at that meeting, that he believed the fire was an “incendiary” fire. He had also testified earlier that when he met with various members of the RCMP in the afternoon on April 16 that he had an opinion on where the fire originated, that he was prepared to help the police but that he needed to make more detailed observations. Finally he said that he thereafter put together a one or two page letter, to the insurance company that was his client, with his preliminary findings.
[372] Sgt. Blair was one of the officers that Mr. Reed met with in the afternoon on April 16. Sgt. Blair confirmed that Mr. Reed had not used the words “set fire” though Sgt. Blair had used these words in his notes. Sgt. Blair did say, and his notes of the meeting confirmed, that Mr. Reed had said he considered the fire was an “incendiary” fire. I accept Sgt. Blair’s evidence on this point and consider that Mr. Reed was mistaken when he said he had not communicated this view to the police at that time.
[373] Sgt. Blair also said, however, and his notes of the meeting confirmed, that Mr. Reed had described his comments as “preliminary findings”. Sgt. Blair further testified that Mr. Reed had said he would not provide an opinion at that point and that he had to do further work. Sgt. Blair said that he had understood that Mr. Reed’s further work might lead to a different conclusion. It is clear that following the April 16 meeting Mr. Reed did, in fact, continue with his investigation. He attended at the Residence for a full day on April 17. He also undertook further work in the labs at the Seraca offices in the weeks or months thereafter.
[374] I do not consider that these events suggest that Mr. Reed arrived at his conclusions too quickly or that he exhibited any bias in his work. Instead, I am satisfied that Mr. Reed continued to undertake his investigation on April 17 and thereafter in an objective and professional manner. I also accept Mr. Reed’s conclusions both as to the origin of the fire and as to its cause.
[375] At the outset I said that there were three elements of the charge of second degree murder that were in issue in this case: unlawful act, identity, and intent. With the evidence I have described and the findings I have made I now return to these issues.
[376] An investigation into the cause of a fire undertaken under NFPA 921, only deals with two levels of certainty – possibilities and probabilities. Mr. Reed concluded, based on the numerous consideration that his report details, that the probable cause of the fire was an incendiary act. Specifically, he has stated that “the most probable cause of this fire was an incendiary act whereby clothing, bedding or other light combustibles on top of the bed in the master bedroom were ignited by an open flame from a match or a butane lighter”. I have accepted that conclusion.
[377] The Crown, however, must prove this beyond a reasonable doubt. This is because the act of starting a fire is the “unlawful act” that the Crown must establish, under s. 222(5) of the Criminal Code. I leave aside for the time being the question of who might have set the fire.
[378] I am satisfied, beyond a reasonable doubt, that the fire at the Residence was an incendiary fire. This is so for several reasons. The Admissions that were filed establish that the gas meters at the Cornerbrook House functioned properly and that there had not been a gas leak. There is no question that the fire started in the master bedroom. I accept, as Mr. Reed has opined, that the fire started on the bed or near the bed in that room.
[379] That conclusion limits the potential relevance of various other electrical outlet boxes, wires, extension cords and devices that had been placed or that were found on the periphery of the master bedroom. Mr. Reed’s examination of these various potential ignition sources, and his conclusions in relation to them, further confirms that they did not cause the fire.
[380] Finally, though the burden of proof rests with the Crown, the central hypothesis of the defence seemed to be that some device may have been left on or near the bed, while it was charging, and where it short circuited or became overheated. No such device, or the remains of any such device, were found. This is notwithstanding the separate investigations of the First Team and of Mr. Reed. Each of the First Team and Mr. Reed spent the better part of two full days investigating the fire and they spent a significant amount of time in the master bedroom or in the carport sifting through char and debris. In addition, if there had been a device on or near the bed, and if it had short circuited, that eventuality would normally be addressed by the circuit breakers – which are intended to act as a fail safe in such circumstances.
[381] Even if there was an electric device on or near the bed that short circuited or over heated, and even if the circuit breakers did not address that failure, these events would have had to happen in about a ten to twelve minute window of time that immediately followed when the accused and G. left the Residence and before other neighbours became aware of the fire.
[382] Several principles that pertain to the assessment of circumstantial evidence are relevant. The question is whether relevant circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty: Villaroman, at para. 38.
[383] In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is reasonable doubt is assessed by considering all the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from the evidence: Villaroman, at para. 35.
[384] Although a trier of fact should consider other plausible theories and reasonable possibilities which are inconsistent with guilt, in order to be “plausible” or “reasonable”, they must be based on logic and experience applied to all the evidence, or absence of evidence, and not on speculation. Reasonable doubt cannot arise from speculation or conjecture: Villaroman, at paras. 37 and 50.
[385] Furthermore, the Crown does not need to negative every possible conjecture, no matter how fanciful, which might be consistent with innocence: Villaroman, at para. 37, citing with approval R. v. Bagshaw, [1972] S.C.R. 2 at p. 8.
[386] Thus, in Villaroman, Cromwell J. said:
40 The first is from an old Australian case, Martin v. Osborne, 55 C.L.R. 367, at p. 375:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]
41 While this language is not appropriate for a jury instruction, I find the idea expressed in this passage -- that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative -- a helpful way of describing the line between plausible theories and speculation.
42 The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences;" that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
43 Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.
[387] The prospect that a fire started spontaneously or accidently in the master bedroom within the narrow time frame available, in light of the evidence and the various other factors that I have described, is not consistent with human experience. Instead it is speculative.
[388] Finally, the evidence and considerations that I have identified ignore the accused’s state of mind, his statements to others and his behaviours in the weeks and in the short time immediately before the fire. This body of evidence is relevant to the question of who set the fire in the Residence that evening and it is in relation to that issue that I have reviewed this evidence. But it also informs the question of whether the fire was in fact an incendiary fire. It is impossible, in relation to this question to ignore the accused’s distress and anger in the period after which L.L. told him to leave the Residence. In particular, it is relevant and important that in the approximately 24 hour period before the fire, I have found and/or the accused has admitted that he vandalized E.L.’s car, that he made a series of threatening statements concerning L.L. and those around her to Mr. Dobson, that he shouted and swore at a police officer, that he struck G. on the drive to the Residence, that he thereafter drove so erratically that G. had to take over and that he threw L.L.’s clothes in the toilet in the master bathroom only minutes before the fire started.
[389] I am satisfied that the Crown has proven, beyond a reasonable doubt, that Mr. Dosanjh set the fire at the Residence. This is so for various reasons and having regard to the whole of the evidence. I am satisfied that Mr. Dosanjh was both angry and distraught in the weeks prior to the fire. He was angry that he had been asked to leave the Residence. He was preoccupied, if not obsessed, with the thought that L.L. was having an affair. He was concerned both that he would lose access to his two younger sons and that his ability to raise A., as Sikh, might be interfered with. His comments and behaviours, both when interacting with L.L. and with others was erratic, irrational and threatening. Though these behaviours may not have been constant they were consistent.
[390] I also do not accept that Mr. Dosanjh was accepting of his circumstances or that his interactions with E.L. and particularly with L.L. were consistent, in terms of their content or tenor, with their past or historical conflicts, communications and dealings. This is apparent in the frequency and intensity with which the accused communicated his concerns and anger to virtually anyone he interacted with and sometimes with near strangers. It is also apparent on an objective basis. Thus, the frequency with which he attempted to telephone L.L. and the frequency with which the police attended at the Cornerbrook Home are relevant. So too is the fact that L.L., after a turbulent relationship that had lasted more than 15 years, now sought refuge, with A., in a transition house because she was concerned for her safety.
[391] Still further, it is clear that Mr. Dosanjh’s behaviour in the day or so before the fire became even more volatile, threatening and angry. I have said that in the approximately 24 hours before the fire he, among other things, vandalized E.L.’s car, made a series of menacing and violent comments when he was at Mr. Dobson’s home, shouted and swore at Constable Adams when they spoke on the phone and struck his son as they drove to the Residence.
[392] Though he had been expressly told to stay away from the Residence, and though he knew he was to do so, he chose to enter the Residence in the early hours of April 13.
[393] I also consider that Mr. Dosanjh had both sufficient time and the opportunity to start the fire in the master bedroom when he re-entered the Residence while G. was standing outside. G. fixed the length of time that his father went back into the Residence as between 30 seconds to under a minute. That length of time would have allowed the accused to climb a flight of stairs, enter the master bedroom at the top of those stairs, walk to the bed in the room, light whatever bedding or clothing or other item was on or near the bed on fire and return downstairs.
[394] I note that the accused estimated that the total length of time he had earlier spent in the master bedroom, when he had entered the room, gone to the master closet looking for his clothes, then removed some of L.L.’s clothing and walked into the ensuite bathroom and put those clothes in the toilet and then looked through the various dressers in the room for his personal items, at perhaps 20 seconds. He similarly estimated the length of time it took him to leave the master bedroom, walk to and look into the living room, go through the kitchen to the back deck to look for his things there, and then return to the top of the stairs at perhaps 20 seconds.
[395] He estimated the total time that he and G. had spent in the Residence, including searching through various rooms and closets, gathering various items and carrying those items outside, at under three minutes. G.’s evidence would fix this estimate slightly higher.
[396] Furthermore, though the accused said he was uncertain whether he was carrying a lighter that evening I am satisfied that he was. He was both a regular cigarette and marihuana smoker. An Admission that was filed at trial establishes that the next morning, when the accused was arrested, he had two different lighters on him.
[397] In arriving at my conclusion I have also considered whether it is possible that E.L. started the fire. I do not consider that this prospect raises any doubt about the conclusion that I have expressed. Again, this is based on various considerations.
[398] There are two separate aspects of the evidence that relates to E.L. and that are relevant. The first is her state of mind that evening and the possibility that she sought to harm herself. The second is that she may have suffered an adverse drug reaction, on account of elevated concentrations of certain medications in her body, that caused her to start the fire.
[399] I have said that E.L. had dealt with depression and/or anxiety for some decades, that she regularly threatened to cause herself harm in some way and that those who knew her best generally regarded such statements as a means of seeking attention. I have also found, however, that E.L. had been particularly distressed and saddened for some weeks prior to the fire about the family’s circumstances and that both Ms. Parent and L.L. were concerned about E.L.’s state of mind on the evening of April 12.
[400] Having said that E.L. appears to have done exactly what she said she would do when she spoke to Ms. Parent that evening. She had taken her medications and she had then gone to bed planning to go to ICBC and deal with her car the next day. When L.L. phoned her at about 10:00 p.m. she appeared to have already been sleeping. When Ian came home to drop off K., and then sat with E.L. between 10:30 and 11:00 p.m., she was already “out of it” and it was not possible to converse with her in a meaningful way.
[401] E.L.’s autopsy did not reveal any alcohol in her blood nor were any of the concentrations of various medications in her blood at lethal levels. Thus, there is no evidence that she sought to harm herself before she went to bed or to sleep.
[402] Furthermore, both E.L. and K. were sleeping when the accused and G. entered the Residence. The accused said that K. generally slept very deeply. I have said that I do not accept the accused’s evidence that he may have heard E.L. awake or move about as he and G. were leaving the Residence. Even if this were so, however, with the timing necessary for the master bedroom to reach a “flashover” state, by about 2:05 a.m., as explained by Mr. Reed, E.L. would have had to almost immediately get out of bed and to have gone straight to the master bedroom to start the fire.
[403] It is also to be recalled that E.L. had a long-standing and deep fear of fire. She would not light a candle and she either insisted that others do so or she sought to prevent candles from being lit. She had done this for decades. She would get rid of both candles and lighters when she could do so. It is unimaginable that E.L. would, on waking up in her room, seek to harm herself in the very way that caused her such acute fear. This conclusion is reinforced by the fact that K., who by all accounts E.L. loved very much, was with her.
[404] In a similar vein, I do not consider it possible that the dosages of the various medications that E.L. took, as reflected in the concentrations of those medications in her blood, postmortem, may have caused various side effects that prompted E.L. to start the fire. Once again, E.L. was sleeping when the accused and G. came to the Residence. It again would have been necessary, if E.L. awoke, for these side effects to have then overwhelmed her and caused her to start or handle fire – something that she had avoided for decades. It would again have been necessary for E.L. to have been overwhelmed by these side effects and to have acted within a very narrow window of time.
[405] Further considerations are relevant. Counsel for the accused appeared to agree that in most cases the types of side effects that were described by Ms. Dagenais and that appear to arise when someone consumes toxic levels of a medication or first goes on or off of a medication, or that arise when someone increases or decreases their dosages of a medication, have little relevance. Such side effects are generally limited to such things as nausea, or excessive sleepiness, or dizziness, or headaches or insomnia. In saying this, I recognize that the product monograms for these products also indicate some prospect of severe agitation coupled with self-harm.
[406] A further question is whether E.L. may have suffered from an episode of serotonin syndrome. I have earlier addressed the uncertainty surrounding E.L.’s postmortem blood concentration levels, in respect of various medications, on account of postmortem redistribution, her age, what drug tolerances she may or may not have developed over decades and other considerations. Notwithstanding these uncertainties I have said that E.L.’s blood concentration levels for, in particular, citalopram/escitalopram appear, for the general population, to have been at toxic levels. Her blood concentration levels of fluoxetine may also have been above therapeutic levels and possibly at toxic levels.
[407] But what does this mean? There is no evidence before me that E.L. had ever suffered from, or been treated for, any of the adverse effects of serotonin syndrome in the past. This is notwithstanding the fact that she appears to have taken anti-depression and/or anti-anxiety medications for many years. Furthermore, most of the side effects commonly associated with serotonin syndrome either have no relevance or are inconsistent with E.L.’s behaviours late on April 12.
[408] Some potential side effects of serotonin syndrome, such as tremors, twitching muscles, loss of coordination, dilated pupils, increased body temperature and diarrhea, though potentially serious, appear to be irrelevant in the circumstances of this case. Symptoms such as confusion, agitation or restlessness might, in concept, have some relevance but such symptoms are the opposite of what both L.L. and Ian described when they had interacted with E.L. a few hours earlier. Her behaviours were not confused or agitated or restless. Instead she appeared to have been sedated or asleep or “stoned”.
[409] The defence also argues that the fact E.L.’s body had more burns on it than did K.’s body suggests she may have been burned, while in the master bedroom, before she made her way back to her bedroom. This premise is without foundation and it is inconsistent with the evidence.
[410] First, and importantly, E.L.’s pyjamas were not burned or affected by any flame damage. Instead it was her upper body in various locations that had “full thickness burns”. Various firefighters testified that smoke can be very hot. Thus, various plastic items on the dresser and desk in E.L.’s bedroom had melted even though no flames had ever entered that room. The smoke line in that bedroom was quite low. E.L., when she was found by firefighters, was slumped in a chair and her upper body would have been near or above the smoke line in the room. K., conversely, when he was found by firefighters, was found on the floor and below the smoke lines.
[411] Finally, though I have not relied on the evidence of Ms. Parent or Mr. Watson, about what they heard or saw early on April 13, I note that neither they nor any other witness who testified gave evidence of hearing anyone shouting or screaming in the Residence. It is hard to imagine that E.L. would not have cried out in some way if she had been seriously burned while standing in the bedroom as that room caught fire.
[412] I have also considered whether there is any possibility that G. or someone else started the fire. On his father’s evidence G. was the last person in the master bedroom. G., however, denied any involvement in starting the fire and I accept that evidence. In addition, there was nothing about his conduct prior to that evening or while at the Residence that would support any such possibility. I have also considered Mr. Watson’s description of seeing a blond man exit the Residence. Apart from the frailties associated with this aspect of Mr. Watson’s evidence, that I have earlier identified, there simply is no prospect, with the time lines in question, of some other unidentified third party having entered the Residence after G. and the accused admitted that they left.
[413] I return to my earlier conclusion and repeat that I am satisfied beyond a reasonable doubt that Mr. Dosanjh started the fire in the master bedroom that led to the deaths of E.L. and K.
[414] At paragraph 20 of these Reasons for Judgment I referred to s. 229 of the Criminal Code. In order to secure a verdict of guilty on the charge of murder against Mr. Dosanjh, the Crown must prove a specific intent on his part to cause death or to cause bodily harm that he knew was likely to cause death and be reckless as to whether death ensued or not.
[415] I have described the various matters that preoccupied Mr. Dosanjh in the weeks and days before the fire and that caused him to be jealous or angry or distressed. Overwhelmingly these matters pertained to his children and to L.L. rather than to E.L. When he spoke, for example, to each of Mr. Dobson and Ms. Pollard on April 12, his focus was on L.L. He made no mention of E.L. other than indirectly when, for example, he told Mr. Dobson that “everyone who associates with L.L., keeps him from his children and impedes his life is in danger”.
[416] A second consideration is relevant. Mr. Dosanjh is by nature erratic and reactive and impulsive. By his own description he is volatile. He lashes out. He tends to get extremely angry and to then settle down. The damage to E.L.’s vehicle, his striking his son, his shouting at Constable Adams, his throwing L.L.’s clothes in the toilet are again all examples of such reactive behaviour. There is some prospect that his lighting some object or piece of clothing on fire, on or by the bed, was the same sort of petty or spiteful behaviour that was intended to cause upset or distress or fear.
[417] A further piece of evidence is relevant. When Mr. Dosanjh left the Residence he did not run or appear stressed. This too is inconsistent with an apparent intention to start a fire that would spread or that was intended to cause death or bodily harm leading to death.
[418] During the Crown’s final submissions I questioned whether the Crown had established a specific intent on the part of the accused to cause either the death of E.L. or to cause her bodily harm that was likely to lead to her death. In that vein I asked whether the pattern of impulsive and reactive behaviour, on the part of the accused, was consistent with the specific intent that the Crown had to establish.
[419] I noted that the fire at the Residence was started in the master bedroom. It was not, for example, started at the foot of the door to E.L.’s bedroom. Indeed, the Crown, in its submissions on an earlier voir dire and in its closing submissions, emphasized that the fire was started on the matrimonial bed. That act, and that location, however, would suggest an animus or anger towards L.L. rather than to E.L.
[420] The Crown responded that Mr. Dosanjh, in starting a fire in an enclosed space next to where E.L. slept, would have known that the likely consequence of his actions would be to cause E.L.’s death or to cause her bodily harm that might lead to her death.
[421] I do not agree. Under s. 229(a)(ii), the Crown must prove (a) intention (to cause bodily harm), (b) knowledge (that the bodily harm will probably be fatal) and (c) recklessness (whether the victim dies or lives): R. v. Moo, 2009 ONCA 645 at para. 45; R. v. Simon, 2010 ONCA 754 at para. 64.
[422] Justice Watt, in Simon, wrote that among these three elements, the most prominent is the intention to cause bodily harm of such a grave and serious nature that the accused knows that the harm is likely to kill the victim. The combination of intention and subjective foresight of the likelihood of death or grievous bodily harm renders the recklessness component in s. 229(a)(ii) almost an afterthought, at para. 65, citing from R. v. Nygaard, [1989] 2 S.C.R. 1074 at pp. 1087-88.
[423] The law on circumstantial evidence requires me to consider whether the only reasonable inference that the evidence permits is that advanced by the Crown.
[424] Villaroman is clear that a reasonable doubt can be based both upon the evidence itself or lack of evidence. This case falls primarily into the latter category. While intent can be inferred from the physical evidence, and the accused’s comments and actions before and after the fire, subjective foresight of death or subjective foresight of grave and serious bodily harm is the minimum constitutional requirement to convict for murder. Accordingly, I find myself in reasonable doubt regarding the accused’s intent at the time the fire was lit. I do not think it follows that any fire in the master bedroom should lead to the inference that the accused intended death or grievous bodily harm to E.L. I do not consider that this is the only reasonable inference available on the whole of the evidence.
[425] I turn to manslaughter. The elements of the included offence of manslaughter are succinctly set out in R. v. McRae, 2016 BCCA 19 at para. 43:
Manslaughter is a culpable homicide that is committed when a person causes the death of another person by different means, including an unlawful act. Unlawful act manslaughter requires the commission of a predicate offence that involves a dangerous act. In addition to the mens rea and actus reus for the underlying dangerous act, to commit the offence of manslaughter, the accused must also reasonably foresee the risk of non-trivial bodily harm. The accused does not need to actually foresee the risk of death stemming from the dangerous act. (Cites omitted.)
[426] Thus, manslaughter requires that a predicate offence of either an unlawful act or criminal negligence be proven, coupled with a homicide, defined in s. 222(1): “[a] person commits homicide when, directly or indirectly, by any means, he causes the death of a human being”.
[427] The predicate offence must involve:
a) A dangerous act;
b) Which is not an offence of absolute liability; and
c) Is not unconstitutional; R. v. DeSousa, [1992] 2 S.C.R. 944.
[428] The actus reus of unlawful act manslaughter is proof beyond a reasonable doubt that:
a) The accused committed an unlawful act;
b) His unlawful act was dangerous; and
c) His unlawful act caused the victim or victims’ death(s); R. v. Barton, 2017 ABCA 216 at para. 165, leave to SCC granted (but not on this point).
[429] The predicate offence in this case is arson. I am satisfied that arson is a dangerous act, it is not an offence of absolute liability, and it is not unconstitutional. Turning to the actus reus of manslaughter, I must first be satisfied that the accused committed the underlying unlawful act (arson).
[430] Arson is defined in s. 434 of the Criminal Code:
434. Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
[431] The actus reus of arson is the damaging of property by fire, and the mens rea is the intentional or reckless performance of the illegal act – the causing of damage to property: R. v. Tatton, 2015 SCC 33 at para. 48. No additional knowledge or purpose is needed.
[432] In determining whether an accused possessed the necessary mens rea, deciding how the fire started is only one of the factors the trier of fact may wish to consider if “the end game involves looking at all of the surrounding circumstances to determine whether it can be inferred that the accused intended to cause damage to someone else’s property or was reckless whether damage ensued or not”: Tatton, at para. 57.
[433] The following passage from Tatton is useful in determining whether Mr. Dosanjh possessed the necessary mens rea for arson:
58 In contrast, there are many situations in which an accused has intentionally or recklessly started a fire and the surrounding circumstances make it clear that he or she intended to cause damage to property or was reckless whether damage ensued. Take, for instance, a person who has deliberately set fire to a towel. If that person were to drop the towel on the carpet and walk away without making any effort to extinguish the fire, it may be inferred that he or she intended to cause damage to property or was reckless whether damage ensued.
[434] Based on the findings I have made I am satisfied, beyond a reasonable doubt, both that the accused’s actions satisfy that actus reus for arson and that he had necessary mens rea for that offence.
[435] The second requirement is that the unlawful act be dangerous, which is viewed objectively, and means, “[the unlawful act] is likely to injure another person”; R. v. DeSousa, [1992] 2 S.C.R. 944, at p. 961, cited with approval in R. v. Creighton, [1993] 3 S.C.R. 3, at para. 8. The predicate offence of arson involves a dangerous act.
[436] The third requirement is colloquially referred to as causation. Causation has both a factual and legal component. Factual causation relates to how the victim died in a medical, mechanical or physical sense. Legal causation focuses on the accused: should that person be held responsible in law for the death of the victim?
[437] Still further I am satisfied, beyond a reasonable doubt, that the accused ought reasonably to have foreseen the risk of non-trivial bodily harm to E.L. Mr. Dosanjh started a fire in a relatively small and enclosed space. The accused knew that E.L. was sleeping in a nearby and nearly adjacent room. Having started the fire the accused then left the Residence. In such circumstances the risk of non-trivial bodily harm is established. Finally, it is clear that Mr. Dosanjh’s acts led to the death of E.L.
[438] Accordingly, I am satisfied that the Crown has established that Mr. Dosanjh is guilty of the manslaughter of E.L.
[439] A different analysis is relevant in relation to K.’s death. Section 229(b), and the concept of transferred intent, is only relevant where an accused has the specific intent to cause a person’s death or to cause that person bodily harm knowing that it is likely to cause their death and being reckless as to whether death ensues. These considerations are not relevant to E.L.’s death and cannot be used to ground or transfer an intent to harm K.
[440] I have found that the accused had been told that K. was not in the Residence that evening. Having said this, the fact that the accused sincerely but mistakenly believed that K. was not in the Residence does not absolve him of criminal culpability. Culpable homicide does not require that the death be reasonably foreseeable or that a victim be targeted. So long as there exists an underlying unlawful act or act of criminal negligence, and death ensues, a culpable homicide is made out. Intent only becomes relevant when turning to the mens rea of the underlying act, and then again when examining intent for murder under s. 229.
[441] In Creighton the court was said: “The cases establish that in addition to the actus reus and mens rea associated with the underlying act, all that is required to support a manslaughter conviction is reasonable foreseeability of the risk of bodily harm”. No requirement was established that the risk of bodily harm must be directed at any particular individual.
[442] In DeSousa the court dealt with s. 269 of the Criminal Code (the offence of unlawfully causing bodily harm). Sopinka J., for the Court said:
“There is, however, no constitutional requirement that intention, either on an objective or a subjective basis, extend to the consequences of unlawful acts in general.” (at para. 33)
“The absence of a constitutional requirement that intention extend to all aspects of an unlawful act was discussed by Wilson J. in R. v. Bernard, [1988] 2 S.C.R. 833, at pp. 888-89, where she concludes that the minimal element of the application of force is sufficient for a conviction for sexual assault causing bodily harm. She inferentially confirms that s. 7 of the Charter does not mandate intention in regard to all of the consequences required by the offence. The contrary position, that intention must extend to all of the required consequences of an offence, is not supported by the case law and should not be adopted as a constitutional requirement.” (at para. 34)
“To require fault in regard to each consequence of an action in order to establish liability for causing that consequence would substantially restructure current notions of criminal responsibility. Such a result cannot be founded on the constitutional aversion to punishing the morally innocent. One is not morally innocent simply because a particular consequence of an unlawful act was unforeseen by that actor. In punishing for unforeseen consequences the law is not punishing the morally innocent but those who cause injury through avoidable unlawful action. Neither basic principles of criminal law, nor the dictates of fundamental justice require, by necessity, intention in relation to the consequences of an otherwise blameworthy act.” (at para. 38)
[443] In R. v. Jackson, [1993] 4 S.C.R. 573 McLachlin J., as she then was, relying on both Creighton and DeSousa, at para. 20 said:
I differ from the Court of Appeal, however, in the state of mind required to be guilty of manslaughter under s. 21(1)(b) and (c). The Court of Appeal held that the test was a subjective appreciation that the act was likely to cause some harm short of death. Since the date of the Court of Appeal's decision, this Court has held that unlawful act manslaughter -- that is, the killing of a person while engaged in an unlawful act -- does not require a subjective appreciation of the consequences of the act. The test is objective -- what a reasonable person would have appreciated in all the circumstances. Nor is it necessary that the risk of death be foreseeable. As long as the unlawful act is inherently dangerous and harm to another which is neither trivial nor transitory is its foreseeable consequence, the resultant death amounts to manslaughter.
[444] Therefore, the accused’s mistaken belief that K. was not in the Residence at the time of the fire and an absence of a subjective intention to cause harm is irrelevant. The same factual findings and legal conclusions that I expressed earlier, in relation to the underlying offence of arson, also apply to K’s death.
[445] Accordingly, I am satisfied that the Crown has established that Mr. Dosanjh is guilty of the manslaughter of K.
[446] To be clear, and concluding with the framework in W. (D.), I do not believe Mr. Dosanjh’s evidence. His evidence does not leave me with any reasonable doubt. I am, based on the whole of the evidence, convinced beyond a reasonable doubt that the accused is guilty of the manslaughter of each of E.L. and K.
Voith J.