R. v. Morgan, 2020 BCPC 309

Citation: R. v. Morgan 2020 BCPC 309 Date: 20200923 File No: 12204-1 Registry: Fort Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CASEY FAWN MORGAN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. MENGERING Counsel for the Crown: P.H. Swartz Counsel for the Defendant: N.R. Bauder Place of Hearing: Fort Nelson , B.C. Dates of Hearing: February 25-28, 2020 Date of Judgment: September 23, 2020 [ 1 ] THE COURT: In the early morning hours of August 7, 2018, Casey Morgan entered J.L.’s cartop tent. She awoke startled and scared and, after a brief struggle, slashed him with a knife before exiting the tent.

[ 2 ] He is charged with break and enter and commit assault, uttering threats, and assault of J.L. POSITION OF THE ACCUSED [ 3 ] Mr. Morgan says that he went over to J.L.’s tent at about 2:00 a.m. to see if she wanted to join him for a drink by his campfire. When she did not respond to his verbal request from outside of the tent, he assumed the noise of the wind prevented her from hearing him. Thus, he went up the ladder and called out again, still without response.

He unzipped the tent door, entered the tent, and shook her shoulder to get her attention. [ 4 ] Much to his surprise, she started screaming when she woke up, so he briefly put his hand over her mouth to give himself an opportunity to explain himself. She bit him, he removed his hand, and she kept screaming before grabbing a knife and stabbing wildly in the dark, injuring him in the process. [ 5 ] She exited the tent, and he passed out as a result of blood loss; regained consciousness about an hour later, and did various things before being arrested at about 6:30 a.m.

POSITION OF THE CROWN [ 6 ] The Crown submits that in the early morning hours of August 7, 2018, Mr. Morgan snuck into J.L.'s cartop tent and attacked her while she was sleeping. She only escaped because she remained clearheaded and was able to use a knife that she had put nearby for protection. ADMISSIONS [ 7 ] Mr. Morgan admits that he is the male inside the tent with J.L. [ 8 ] He has made formal admissions pursuant to s. 655 of the Criminal Code , now filed as Exhibit 11, with respect to seizure and continuity of exhibits, scene security, and taking of DNA samples from the complainant and accused. [ 9 ] Mr.

Morgan admits the contents of two RCMP forensic lab reports, filed Exhibits 6 and 9, that: 1) his DNA was found on J.L.'s knife sheath and knife handle inside her tent; 2) his DNA was found on the tip of J.L.'s knife blade found inside her tent; 3) his DNA was found in the blood running down the rear driver side window of his Camry; 4) the complainant's DNA was found on the exterior upper right leg area of his pants; 5) his DNA was found on the complainant's T-shirt on the centre back right and right armpit areas; and 6) his blood was found inside her tent. [ 10 ] He further admits that he was the registered owner of the white Toyota Camry bearing Washington plates camped in the Liard Hot Springs overflow campground. [ 11 ] He admits that the Toyota keys on the ground outside of J.L.'s Lexus the morning of August 7 were his keys and operated the white Camry located at the crime scene that became the focus of the RCMP investigation.

BACKGROUND [ 12 ] The incident occurred in the overflow camping area across the highway from the Liard Hot Springs (the “Overflow Lot”).

The regular campground was full on August 6, 2018, and latecomers were referred to the Overflow Lot if they wished to spend the night. [ 13 ] The adjacent Alaska Highway runs in a roughly north-south orientation. [ 14 ] Prior to this event, J.L., Casey Morgan, and the witnesses were strangers to each other. [ 15 ] J.L. was then 25 years old, five foot three inches tall, and 123 pounds. [ 16 ] J.L. was on a road trip, returning from her parents' home in Colorado to her new home in Fairbanks, Alaska, where she was a [omitted for publication].

She was travelling alone, driving a gold four-door Lexus SUV and camping on the way home using a roof-top tent. [ 17 ] Mr. Morgan, also, by coincidence, a U.S. citizen, was on a road trip with his nine-year-old son, travelling from Washington State to Fairbanks, Alaska. He was driving a white Toyota Camry (the “Camry”) and tenting at night. [ 18 ] Mr. Morgan was then 38 years old, five foot 10 inches tall, and approximately 200 pounds. [ 19 ] The Lexus, its cartop tent, and Camry with associated tent are shown at page 5 of Exhibit 2.

THE EVIDENCE J.L. [ 20 ] J.L. testified that she backed her Lexus into a spot at the south end of the Overflow Lot at about 1:30 in the afternoon of August

6, then walked to the nearby hot springs where she remained for one to 1.5 hours. She did not speak with or notice anyone in particular there or on her way back. [ 21 ] She returned to her vehicle around 3:00 and set up her tent and camp area, which was primarily behind the Lexus, where she enjoyed privacy because of the location of her vehicle in front of her, the outhouse to the north, and treed area to the west and south. She ate dinner, wrote in her journal, and read a bit.

She noted that the Overflow Lot was filling with more campers as the day wore on, but nobody caught her attention. [ 22 ] She walked to the Lodge, some 100 metres north on the highway, and brought back a fresh bag of ice for her cooler. She did not speak to anyone and nobody caught her attention, and she did not make eye contact with anyone. [ 23 ] She took a bag of trash to a garbage can located north of her along the western edge of the Overflow Lot; again, nobody caught her attention. [ 24 ] She used the outhouse located between her tent and that of Mr. Morgan at least once that evening before going to bed.

She was aware that there were campers there, but did not notice their age or gender. [ 25 ] She was not asked in cross-examination whether she exchanged a smile, nod, or glance with Mr. Morgan or any other camper. In fact, it was put to her twice in cross-examination, and she agreed, that she kept to herself throughout the evening. [ 26 ] She noted a tent set up on the opposite side of the Overflow Lot by the time she finished her meal. I accept this was the Van Der Linden tent. [ 27 ] She went to bed early, by 8:00 or 8:30, in preparation for her planned early departure the next morning.

She changed into her sleep clothes, including a tie-dyed shirt, shorts, and sweatpants, got into her mummy bag, read for a while, then fell asleep. She noted that the wind was picking up as the evening progressed. [ 28 ] The door and windows in her tent were zipped closed against the chilly night air when she went to bed.

I note the style of door zipper at Exhibit 2, pages 47 and 69, which show one continuous zipper in a reverse L-shape when viewed from outside, from the top right to bottom left. [ 29 ] When she went to bed, she was in her sleeping bag, lying across the car, with her head on the driver's side and her feet near the door and ladder to the tent on the passenger side of the SUV. She was slightly forward of centre.

Her "safety kit," being a flashlight, air horn, bear spray, and fileting knife, were in a gold pouch attached to the side of the tent within arm's reach and to the right of her head if she lay on her back. [ 30 ] She fell asleep about an hour later and woke up once because of the noise of the wind, which she estimated to be 20 to 30 knots. It was loud and shaking the walls of her tent. She fell asleep again. [ 31 ] She testified that she woke up later because she felt someone on top of her.

In cross-examination, she disagreed that the person was beside her rather than on top of her when she woke up. [ 32 ] She felt a hand go over her mouth, and she tried to get away but could not move. She bit the hand, and it moved away briefly, and she screamed as loudly as she could, but the hand again came down hard on her mouth. She bit again and it lifted, and she screamed again. [ 33 ] She disagreed in cross-examination that the man in the tent was trying to stop her from screaming by putting his hand or another object on her mouth, and testified that his hand was on her mouth before she had screamed.

She was not shaken on this. She disagreed with the suggestion that the man was trying to calm her down and stop her from screaming, or that his hand was removed “quickly” from her mouth. [ 34 ] She continued squirming, trying to break free and screamed as loud as she could as soon as the hand was lifted away. It was then that the person spoke for the first time and she recognized the voice to be a male voice. He told her to shut up. [ 35 ] He then used something like a piece of cloth to hold her head down, pinned on either side of her head, going through her mouth.

She moved her head from side to side, trying to free herself, and tried to scream. She later saw red scrapes extending from the corner of her mouth, down her cheeks from the cloth that was applied to her face and mouth (Exhibit 2, Photo 5, 6, 7, 18, 19, 20, and 22). [ 36 ] He put both of his hands around her neck, and began choking her. Photos taken at hospital show bruising around her neck, underneath her jaw, around the front and sides of her neck, and going around the back of her neck (Exhibit 2, photos 8 through 10, and 21 to 22). [ 37 ] He told her he was going to kill her.

I note that two impartial witnesses outside of the tent, Mr. and Mrs. Van Der Linden, both testified to hearing a male voice utter these words four to five times. Mr. Morgan testified that he did not recall saying that. [ 38 ] She kept trying to get away, and reached for the air horn, found it, and tried to make it work, but he knocked it out of her hand. She does not know if it made a noise, but on the evidence of the Van Der Lindens, I find that it did work, albeit briefly. Mr.

Morgan could not recall an air horn. [ 39 ] She testified that he was still choking her and telling her he was going to kill her. [ 40 ] She grabbed the fileting knife from the pouch, and began swinging it. She did not know who got cut, but she could feel blood and could smell it. She acknowledged that it was pitch black inside her tent and she was swinging the knife around, and could have stabbed the tent or its frame as well.

[ 41 ] She agreed in cross-examination that while she was in the tent, she realized the knife had pierced someone because she could smell the iron smell of blood, but that she did not know who. That is what she told the police in her statement, as well. [ 42 ] She was able to get onto her knees and he got her in a headlock with his arm around her head. [ 43 ] She knew she had to get out of the tent but she was disoriented from the struggle.

She felt around the tent until she felt cold air on her hand, and broke away from the headlock by sliding her head back through the arm holding her. [ 44 ] She fell out of the tent, got up, saw a person now known to be Kevin Van Der Linden some distance away holding a flashlight, and ran toward him. [ 45 ] A lady, now known to be Dawn Van Der Linden, was coming out of their tent as she ran up to their car. [ 46 ] She and Mr.

Van Der Linden ran to a group of people sitting inside an SUV with their interior light on, then returned to the Van Der Linden vehicle. [ 47 ] I find that she did not know, while she was in the tent, who had been hit with the knife. She was aware that there was blood, but did not know to whom it belonged. As she ran toward the Van Der Lindens, she was aware that she was holding her left hand, but she could not then feel any pain associated with a cut.

She did not realize she was cut until the Van Der Lindens gave her a towel. [ 48 ] She drove with the Van Der Lindens to the Lodge, where she remained until a park ranger showed up; then some hours later, RCMP. [ 49 ] She was eventually taken by RCMP to a hospital in Fort Nelson, some four hours south, where photos were taken and her hand injury was treated. [ 50 ] She received seven stitches to close a laceration on her left hand between her pointer finger and thumb; one stitch to close up a laceration on her pointer finger knuckle; and a cut to the tip of her left ring finger which did not require stitches (Exhibit 2, photo 1).

Those are, I find, likely the result of her own knife coming in contact with herself in the struggle. [ 51 ] In addition to the red scrapes from the corners of her mouth and the bruising all the way around her neck, she sustained bruising on her arms and legs (Exhibit 2, Photo 11, and 23 through 25). [ 52 ] She testified that the Toyota keys located within a few feet of the base of the ladder to her tent do not belong to her (Exhibit 2, page 18, Photo 6754). Mr.

Morgan admits those are his keys, and that they were in his pants pocket, as was a condom, before he went up the ladder. [ 53 ] In cross-examination, J.L. confirmed that she had brought the safety kit -- a flashlight, air horn, bear spray, and fileting knife -- along on the trip for protection against bears and people while camping alone on her trip home to Alaska. Each night, she put the items in a pouch on the side of her tent.

She was aware that the hot springs area, in particular, is a high-risk area for bear attacks and that a young, single woman camping alone at any time is vulnerable. [ 54 ] She testified in cross-examination that she is certain she zipped the door closed, and did not agree that it was possible for the zipper to have come down because of the wind shaking the tent. As I understand it, Mr.

Morgan does not dispute that he opened the zipper of the tent. [ 55 ] In cross-examination, she acknowledged that she did not hear anybody trying to talk to her before they entered her tent, and she was not awoken by a voice from outside asking her if he could come in. In fact, Mr. Morgan testified he did not ask to come in.

She did not hear anybody from outside ask her if she wanted to come outside to have a drink. [ 56 ] She agreed that she did not become aware of someone trying to wake her up by shaking her and did not become aware of someone trying to talk to her in her tent or get her attention by talking to her inside her tent in a "non-aggressive way". [ 57 ] She agreed that she was very startled and scared to wake up to a stranger in her tent. She used the word "terrified". [ 58 ] J.L. disagreed that she wrestled with the male or grabbed at his arms or any other body part.

She testified that she could not wrap her arms around anything. [ 59 ] She further disagreed that she “immediately” began grabbing at the person that she thought was attacking her, and testified that she was not able to move that much initially. [ 60 ] J.L. denied that she struck out with the knife with the intent to kill her attacker. I accept that she never formed an intention to kill her attacker, or that she ever believed, as suggested by defence counsel, that the only way she could escape was if her attacker was dead.

There was simply no evidence of that. [ 61 ] When pressed in cross-examination, J.L. confirmed that the male used the exact words "I'm going to kill you." She was not shaken on that point. She disagreed with the suggestion that the male actually said "Stop, stop, stop, don't kill me." Mr. Morgan did not testify that he said that. She is certain that she did not hear him say that.

He testified that he does not recall saying, "I'm going to kill you." [ 62 ] She also disagreed that she heard him say, "I'm done, I'm done, I'm done" or "done, done, done". [ 63 ] J.L. disagreed that the male was unconscious when she left the tent, and testified that in fact he had just had her in a headlock, which is inconsistent with a state of unconsciousness. [ 64 ] J.L. was not, in fact, shaken on any point. Her evidence was internally consistent and clear; and the injuries she sustained are

consistent with the struggle inside the tent and the mechanism of injury she described. She was clear-headed throughout the incident. [ 65 ] Her evidence is further corroborated by the lack of injury to Mr. Morgan. She testified in cross-examination that she never grabbed him or put her arms around him or “wrestled” with him. She agreed that she flailed wildly with the knife, drawing blood that she could feel and smell from someone, without knowing who; and likely hitting the sides and frame of the tent, but she did not lay hands on Mr. Morgan. There are no photos of injuries to Mr.

Morgan consistent with having been grabbed; and no evidence that he did sustain such injuries. The Van Der Lindens [ 66 ] Dawn and Kevin Van Der Linden were tenting on the southeast edge of the Overflow Lot the evening of August 6 to 7, 2018, with their children, having arrived at about two o'clock that afternoon. The parking lot was quite full of other persons camping by the time they went to bed at about 9:30 p.m. Mr. Van Der Linden testified that J.L.'s vehicle was quite close to but south of the outhouse. Their own tent was about 30 metres from the outhouse. [ 67 ] Both Mr. and Mrs.

Van Der Linden noticed a man, now known to be the accused, Casey Morgan, and his son sitting around a fire ring near a tent north of the outhouse. Mr. Van Der Linden thought he might have seen the man drink a beer, but they had no contact or communication. His presence was unremarkable. [ 68 ] Mrs. Van Der Linden was still awake reading in their tent at about two o'clock a.m. when she heard a woman screaming over and over again. She heard her yelling, "No, get away," followed by more screaming, then a short blast of an air horn. Mr. Van Der Linden woke up to hear a woman, now known to be J.L., screaming.

He did not hear any individualized words from the woman. He was certain that he heard the male say, "I'm going to kill you, I'm going to kill you" and heard the male say "done, done, done". [ 69 ] Both Mr. and Mrs. Van Der Linden thought the woman was being attacked by a bear until they heard the man's voice saying, "I'm going to kill you," repeated two to five times. Mr. Van Der Linden was first out of their tent with a flashlight. He first heard then saw J.L. running toward him when she was about 10 metres away. From the evidence of J.L., I accept that she ran toward him because she saw his flashlight.

He sprinted to a nearby SUV on the far side of what we now know to be Mr. Morgan's tent, in which he could see some people seated with the interior light on and told them to call 9-1-1, then returned to his own vehicle. He thought he went alone, but I accept J.L.'s evidence that she accompanied him and that she left the trail of blood later located by Sergeant Pratch, depicted at Exhibit 3, a diagram, and photos at Exhibit 2, pages 22 through 36. [ 70 ] He, his wife, the children, and J.L. got into their car and drove to the nearby lodge, approximately 100 metres north up the highway.

RCMP were called and arrived some four hours later from Fort Nelson, that being the approximate driving time from the nearest detachment. Both of the Van Der Lindens testified that J.L.'s hand was cut badly, her clothing had blood on it, and she seemed panicky and scared. Mrs. Van Der Linden testified that she gave J.L. water, because she said her throat was really sore, and gave her some ice to decrease the swelling and bruising on the lower part of J.L.'s face and neck. [ 71 ] While Mrs.

Van Der Linden saw a group of four young men gathered around having some drinks and being noisy when they first arrived at two o'clock p.m., neither she nor Mr. Van Der Linden noted anyone else drinking excessively or being rowdy at any time. [ 72 ] Both Mr. and Mrs. Van Der Linden were careful with their evidence and indicated when they were unsure about something or if they disagreed with something that was put to them, but they both testified that it was a very windy night with a loud, blustery wind.

Both independently agreed that less than two minutes passed from the time they first heard the woman scream until J.L. arrived at their site. Neither party was shaken on cross-examination and I find their evidence to be generally reliable and credible. Robert McLeod [ 73 ] At the material time, Robert McLeod was a park ranger posted to the Liard Hot Springs Provincial Park.

In that capacity, he received a call at about 2:00 the morning of August 7, 2018, from a staff member at the nearby Lodge reporting an incident involving a female at the Overflow Lot. [ 74 ] He attended at the Lodge approximately 15 minutes later and spoke to J.L. about an assault. He roused his partner, locked the gate to the main campground and Overflow Lot, and began driving patrols between the main campground, the Overflow Lot, and the Lodge. [ 75 ] He noted the presence of Mr.

Morgan's white Camry, along with some other RVs, in the Overflow Lot. [ 76 ] It was dark when they began their patrols but it gradually lightened. At about 4:00 a.m., they re-entered the Overflow Lot and saw a male, now known to be Mr. Morgan, walking in the direction of J.L.'s vehicle. Upon seeing their vehicle, the man ran into the woods behind the outhouse. [ 77 ] Mr. McLeod disagreed in cross-examination that he drove “quickly” toward the male. [ 78 ] He was not able to see if the male was stumbling or showing indicia of alcohol use or intoxication.

When it was suggested in cross-examination that he was staggering, Ranger McLeod testified, "I don't recall seeing that, no." [ 79 ] I am satisfied that Mr. Morgan did not have an opportunity to see that the approaching vehicle belonged to a person in authority, but rather simply fled from the approaching headlights. [ 80 ] Ranger McLeod remained on patrol in the Overflow Lot from that point on. At that time, he did a more detailed search and saw that both of the Camry's passenger-side doors were open and there was blood on the rear driver’s side window. We now know that blood to be that of Mr. Morgan.

[ 81 ] He found Mr. Morgan's tent to be unzipped with a child, now known to be Mr. Morgan's son, sleeping inside. [ 82 ] For the next hour or so, Ranger McLeod and his partner remained in the area into which the male had disappeared until they heard a rustling in the woods at about 5:00 a.m., approximately 10 to 15 metres from the treeline. [ 83 ] They then saw the same male, who I will refer to as Mr. Morgan, although they did not know his name at the time, begin to walk forward out of the treeline, and when he was visible, Ranger McLeod ordered him to stand down and stay where he was. Mr.

McLeod thought his partner might have told Mr. Morgan to get on the ground. [ 84 ] Ranger McLeod observed him to be wearing pants and a dark T-shirt, and that he appeared to be covered in blood, sweat, and dirt. [ 85 ] Mr. Morgan remained standing for five to 10 minutes, then laid down in the treeline on a game trail. [ 86 ] Mr. Morgan did not initially say anything, but periodically asked for a blanket, water, and medical attention. He sounded like he was moaning in pain at times.

The rangers did not provide any of the requested items, but did tell him medical help was on the way. [ 87 ] Constable Clark arrived at about 6:30 a.m. and arrested Mr. Morgan. She and Ranger McLeod helped him get up off the ground and escorted him to the nearby cruiser. He noted at the time that Mr. Morgan appeared to have injuries. [ 88 ] Ranger McLeod testified in direct examination and confirmed in cross-examination that he did not notice any odour of liquor on Mr. Morgan when he assisted him to the police car. He found several empty beer cans at Mr.

Morgan's site, but could not tell if he was exhibiting signs of dehydration or intoxication, which he thought were similar. [ 89 ] He agreed that he told Constable Clark at the time that he suspected the subject to be intoxicated, but testified that he did not know at the time that Mr. Morgan was dehydrated and that, in retrospect, he may have mistaken that for intoxication. [ 90 ] He agreed that he routinely deals with drunk people in the course of his work and looks for staggering, slurring, complexion, general attitude, and demeanour. Here Mr.

Morgan did not talk to the ranger, apart from the earlier-noted request for help. He agreed that Mr. Morgan was compliant. He agreed that Mr. Morgan vomited profusely when he was lying on the ground. Cst. Clark [ 91 ] Constable Clark was called out at about 2:20 a.m. on August 7, 2018, to an assault of a female at the Liard Hot Springs. She and Constable Rumming attended in separate police vehicles, arriving at the lodge at about 6:00 a.m. After a preliminary discussion with J.L., Constable Clark attended the Overflow Lot to arrest Mr. Morgan, who was still lying in the bushes near his campsite.

His son was still asleep in their tent. [ 92 ] She went into the bush and found Mr. Morgan laying on his back with one hand wrapped in a blood-soaked towel held against his stomach. [ 93 ] With Ranger McLeod, she helped Mr. Morgan to sit up, then stand up, and walked him back to the gravelled surface of the Overflow Lot. He threw up along the way. She lodged him in the back of the PC and arrested him for break and enter, threats, and assault. As I understand it, there is no issue with respect to the arrest, charter , and warning of Mr.

Morgan or his access to counsel in due course. [ 94 ] She did not note an odour of alcohol on Mr. Morgan's breath or person when she walked him back to, or lodged him in, her vehicle; or 40 minutes later when she opened the door to allow EHS to attend to him; or when she helped the ambulance attendant move Mr. Morgan into the ambulance. In cross-examination, she affirmed that she is not aware of Mr. Morgan having consumed any whiskey or beer at any time. [ 95 ] EHS transported Mr. Morgan to the Fort Nelson hospital forthwith as he had lost a lot of blood. [ 96 ] She agreed that Mr.

Morgan was pale and unsteady on his feet and that he did not say much. She testified that she did not notice whether his eyes were glassy, because she was focused on helping him get to the PC. She agreed that she did not look at his face, but that it was possible that his eyes were glassy. She agreed that he asked for medical help. DNA Analysis [ 97 ] Two lab reports marked as Exhibits 6 and 9, indicate that J.L.'s DNA was found on the pants Mr. Morgan was wearing when arrested. [ 98 ] Mr.

Morgan’s DNA was on the blade, handle, and sheath of J.L.'s knife; the interior of the tent itself; her pyjama T-shirt; and the rear driver side window of his Camry. [ 99 ] That evidence is conceded by the defence. Forensic Evidence [ 100 ] The Forensic Identification Team travelled from Fort Nelson and conducted a forensic examination of the crime scene the evening of August 7, the morning of August 8, 2018. [ 101 ] Admissions made subsequent to the tendering of evidence of Sergeant Pratch and Constable Rissanen render a full recitation of their findings unnecessary.

I have reviewed it all, but will refer only to certain aspects I find relevant.

[ 102 ] Scene security and continuity of exhibits is admitted. [ 103 ] Sergeant Pratch testified to her observations, and referenced Exhibit 2, a booklet of photos taken by her that accurately represent the scene. [ 104 ] She testified to finding the keys to the Camry approximately 10 feet away from the bottom of the telescoping ladder leading to J.L.'s cartop tent (Exhibit 2, pages 18 and 40). [ 105 ] Inside the tent, amongst other items, she located: 1) a knife blade for a fileting-style knife (Exhibit 2, page 63 and 67); its wooden handle (Exhibit 2, pages 64 and 67); and its leather sheath (Exhibit 2, pages 55 - 56, and 47).

All were covered in what would turn out to be the accused's blood. The knife was located at the edge of the tent closest to where we now know J.L.'s head was as she was sleeping and when Mr.

Morgan entered her tent; 2) what appeared to be blood on the green mattress (Exhibit 2, page 48); 3) J.L.'s blue sleeping bag, with what appeared to be blood (Exhibit 2, page 58); 4) J.L.'s pillow with what appeared to be blood (Exhibit 2, page 54); 5) an air horn; 6) linear holes in the mesh of the unused driver side door of the tent which could be caused by the fileting knife (Exhibit 2, page 70 and 71 - 73); and 7) red staining that appeared to be blood on the walls of the tent near the victim's head (Exhibit 2, page 69 and 71); internal tent frame facing the back of the car ( page 70); built-in pouch below the rear window (page 70); and wall beside the rear facing window (page 74). [ 106 ] She located Mr.

Morgan's wallet and identification documents, including driver's licence, bank, and credit cards inside the console of the Camry (Exhibit 2, pages 80 – 81). [ 107 ] She found two open beer cans in Mr. Morgan's campsite lying on their sides, which she inferred were empty. DEFENCE EVIDENCE: MR. CASEY FAWN MORGAN In Direct [ 108 ] Mr. Morgan was the sole witness in the defence case. He testified as follows. [ 109 ] He is now 39, an American citizen living in Ellensburg, Washington, since 2003/2004. At the material time, he was 5’ 10” and about 200 pounds, as now.

He has one son, B., [omitted for publication], who accompanied him on his August 2018 trip from Washington to Fairbanks, Alaska. B. normally lives with his mother, but has parenting time with his father in the summer. [ 110 ] In 2007, he decided that continued employment in the computer field was not his “passion” and that he wanted to get into health care. He worked as a certified RN assistant with the elderly for six to eight months, while also training as an EMT, then volunteered with the Central Washington EMT division until he got a job in the emergency room at a local hospital.

He worked there for two and a half years, then moved to a different job as a critical care technician at the same hospital. In that capacity, amongst other duties, he helped registered nurses with patient care.

He quit that job when he was accepted into medical school, but eventually decided to go into general contracting, a more lucrative position. [ 111 ] He has a bachelor's degree in administration obtained in 2004 and a bachelor degree in biology with a minor in chemistry, obtained in 2013. [ 112 ] In August 2018, he and B. left on a road trip from Ellensburg, Washington, to travel up the Alaska Highway to Fairbanks, Alaska, to go fishing.

He drove his white Toyota Camry and they camped in his tent, both of which are shown at Exhibit 2, pages 5 through 8. [ 113 ] They stayed in a Kamloops-area campground the night of perhaps August 5 to 6 and got up at 5:00 or 6:00 a.m. to drive to their next planned stop, Liard Hot Springs. He testified that they arrived at the Liard Hot Springs at about 1:00 or 2:00 p.m. on August 6 and planned to stay for two nights. I am unclear on the timeline, however, as that is a 1600-kilometre drive that would normally take approximately 18 hours. Mr.

Morgan, however, was clear that it was their third day of driving after having spent the first night in the yard of his former sister-in-law and the second night in the Kamloops area, after being detoured off Highway 97 because of a landslide. [ 114 ] They parked in the Overflow Lot, with the intention of trying for a spot in the now-full campground the next morning. They set up their tent near the outhouse in the largely empty Overflow Lot, then drove across the highway, parked, and walked into the hot springs. [ 115 ] They stayed at the hot springs for two to three hours.

In direct, he testified that there were 50 to 60 people there of all ages, but he spent most of that time just "being a dad", following his son around while he played in the colder creek to which the hot springs overflow. [ 116 ] He testified that while at the hot springs, he had only casual conversation with anyone in the area in which his son was playing. He said that any conversation he had involved "Where are you from?

Where are you going?" He recalls speaking to an older couple. [ 117 ] Importantly, he recalls speaking to a petite young female in her late twenties to early thirties with brown hair, with whom he had the same conversation at the hot springs - where she was from and where she was headed. This is important because, as I understand his

evidence, when he saw J.L. in the Overflow Lot later, he thought she was the same woman. I will call the woman at the hot springs pool the “Unknown Female” given that Mr. Morgan now concedes that it was not, in fact, J.L. - that he did not see or speak to J.L. at the hot springs at all. [ 118 ] In contrast to his evidence in direct, however, that he had only a casual conversation with the Unknown Female, in cross- examination he characterized his interaction with the Unknown Female as "flirtatious" and suggested that she was "giggly". [ 119 ] He and B. returned to their campsite at about 5:00 p.m.

The Overflow Lot was now almost full of campers set up around the edges of the lot with kids playing in the middle of the lot. [ 120 ] Beside him was an RV with people sitting outside drinking and listening to music. [ 121 ] He noted a cartop tent parked in the corner past the outhouse, but nobody around the site. [ 122 ] B. went to play with the other kids while Mr. Morgan prepared dinner. Mr.

Morgan unpacked the car of necessary items, such as coolers and camping bins, and went over to talk to the parents of the other kids with whom B. was playing. [ 123 ] He began drinking Coors Light, given that he was not planning on driving the next day. He had brought a 24-pack of beer from Ellensburg in a padded cooler bag from Costco, and thinks he brought it out with other food items upon returning from the hot springs.

Photos of his site (Exhibit 2, pages 5 through 7) show two open beer cans lying on their side in his campsite, but no padded cooler bag. [ 124 ] He testified that he had also brought a bottle of whiskey in his cooler as he usually started with Coors Light, then sipped on whiskey later in the evening. [ 125 ] He and B. began eating at 6:15 or 6:30. [ 126 ] While they were eating, he saw a female, that he thought was the same Unknown Female from the hot springs earlier, walk past his site. He looked up and smiled, and he testified that, "I thought she smiled back at me.

I thought it was a positive interaction." He then testified that he thought they shared a "passing glance or gaze, so [he] just smiled". She eventually returned to the Lexus with the cartop tent. [ 127 ] As indicated earlier, J.L. was not confronted with the proposition that she and Mr. Morgan made eye contact, smiled, or otherwise acknowledged the other's presence in the Overflow Lot. [ 128 ] Further, in cross-examination, Mr.

Morgan changed his evidence and stated that when J.L. walked past his campsite as he was eating dinner, it was actually the second time of seeing J.L. and thinking she was the Unknown Female from the hot springs.

Contrary to his earlier direct evidence in which he did not attest to having seen J.L. at her site at all and did not make any conclusions about her being the Unknown Female from the hot springs, he testified in cross-examination that he did see a female at the site that he thought was the Unknown Female from the hot springs, but did not speak with her. [ 129 ] I will discuss this further later in these reasons. [ 130 ] In direct, he testified that he and the female did not speak as she walked past his site. In cross-examination, Mr.

Morgan characterized it as a “friendly” greeting and disagreed with the suggestion that it was not a greeting at all, and said that "any glance is a greeting". [ 131 ] He agreed that he did not consider her smile to be an “invitation” or a “friendly opening” to a conversation. He agreed that at the time it did not mean anything; that it was a "complete nothing;" and that it was similar to the way one might smile while passing someone in a restaurant or a hall. In cross-examination, he testified that he did see it as being an opening, but I will return to what was in Mr.

Morgan's mind later when I review his evidence in cross-examination more fully. [ 132 ] In direct, he testified that he had consumed three beer by the time he and his son finished dinner. He and B. then settled around their propane fire and talked for the next couple hours, until B. went to bed at dusk, about 9:00 or 9:30. He drank five to six beer between 5:00 to 9:30 that night and thinks he probably followed his usual practice of putting the empties back in the cooler.

That does not accord with the photos which show two empty beer cans on the ground. [ 133 ] He testified in direct that he did not interact with anyone other than his son during this time, which I understand to be the time they finished dinner until 9:30. [ 134 ] There were still lots of people milling about at that time; the people in the RV next to him were playing soft music and were outside drinking, and other people were drinking beer. [ 135 ] Once B. was in bed, he stopped drinking beer and began drinking a mix of whiskey and Mountain Dew in a red “solo” cup, which is also depicted in Exhibit 2, page 6.

He testified that he did not have a plan, other than to stay up and watch the fire and drink whiskey. It was a nice cool summer day and the wind was just beginning to pick up as the sun went down. [ 136 ] He testified that when he drinks, he feels happy and more social, and that was the case on the evening in question.

He did not think of himself as drunk. [ 137 ] He testified in direct that, "at some point I wanted to find someone to drink with and find a drinking buddy or someone to hang out with." He surmised that J.L. was camping alone so he decided to try to wake her up or go over to see if she was awake so he could "drink with her, have fun with her, talk to her". He thought she was the Unknown Female he had met at the hot springs.

Interestingly, in cross- examination, he could not recall testifying that he thought J.L. was the Unknown Female and that he decided to wake her up or go see if she was awake, although Crown put his exact words to him, which raises issues as to either his reliability or truthfulness.

[ 138 ] In cross-examination, he testified that when he went over to her tent, he did not have a plan to wake her up if she was asleep. [ 139 ] He testified that he went over to her vehicle and, from the base of the ladder, tried to wake her up by calling out, "Hey, is anybody there?

Is anybody awake?" Later in cross-examination, he said that he does not recall what he said. [ 140 ] He testified, "I was unable to get a response, so I wanted to get closer and see if I could wake somebody up." He figured that nobody could hear him from where he was because of the loud wind shaking the tent and making it flap. [ 141 ] He climbed up the ladder and opened up the tent and called out louder, "Hey, is anybody awake?" without getting a response.

In cross-examination, incredibly he testified that he still was not sure whether the occupant was awake, even though he was now yelling from the ladder into the tent. [ 142 ] In cross-examination, he maintained that he did in fact call out from the foot of the ladder and did not simply go up the ladder and enter into the tent without first calling out. [ 143 ] He then "made the bad decision to go uninvited into the tent", because he was drinking and having fun, and wanted to have a drink with somebody; and he wanted to invite somebody out to his firepit for a drink.

In cross-examination, he agreed that he could have sought out the company of the other father he had spoken to earlier, or the campers immediately beside him that had been drinking, listening to music, and socializing outside of their RV earlier. [ 144 ] He agreed in cross-examination that he did not know whether anyone was in the tent before he entered it, because he could not see the site from his site; and the door of the tent faced south, away from his campsite.

He agreed in cross-examination that there was no light or noise coming from the tent that would suggest to him that there was anyone in the tent, anyone was awake, or that they would want to join him for a drink. Once he was inside the tent, he knew there was a person there, but he did not leave, because he wanted to wake her up and see if she wanted to drink. [ 145 ] In cross-examination, he testified that he did not first reach a hand inside from his position on the ladder to see if anyone was there.

This would, I infer, also have given him the advantage of determining the orientation of the occupant: whether she was sleeping across the vehicle or from front to back. [ 146 ] In direct, he testified that it was dark inside the tent and he could not see anything; but because it was a small tent, he went in on his hands and knees.

Despite not being able to see “a whole lot,” he moved directly to her shoulder, which was on the far side of the tent (the driver’s side of the vehicle) – it is unclear how he knew that she was laying north to south as she was with her head at the north end; rather than east to west, for example, the length of the car. Nevertheless, he maintains that while on his hands and knees beside her, he shook her shoulder in an attempt to wake her up.

In cross-examination, he changed his evidence and said that he does not know that he shook her shoulder, but he could feel the edge of her body in her sleeping bag. [ 147 ] In cross-examination, he testified that he was beside her and when it was suggested that he got on top of her to hold her down and stop the screaming, he testified, "I did not - at that point anyway." [ 148 ] J.L. woke up and started screaming and Mr. Morgan panicked. [ 149 ] He testified that he was very surprised that she started screaming; and he tried to "calm down the situation" by immediately putting his hand on her mouth.

She bit him and he removed his hand. He thought he only put his hand over her mouth once. [ 150 ] When asked in direct why he was surprised that she started screaming, he testified that he had been drinking and expected to just wake her up; that maybe she would have recognized his voice. By this, I infer that he meant she might have recognized his voice from their earlier conversation at the hot springs, if she were the Unknown Female from the hot springs. [ 151 ] He testified that he said, "Whoa, whoa, wait" as his hand was on her mouth, trying to calm the situation down, but she kept screaming.

He testified, "At that point, I wanted to just get out of there" and he "kind of went back" in an effort to get out of the tent.

He did not, however, get out of the tent or even try to. [ 152 ] At that point, he was aware that there was a knife, felt pain in his chest above his heart, and felt he had been stabbed. [ 153 ] He testified that he realized a bad situation was getting worse and "wanted to get out of there" once he was stabbed. [ 154 ] He still did not try to get out of the tent. [ 155 ] Instead, he determined that he should get the knife away from her because she was continuing to stab at him and come at him with the knife.

He knew that because of the “motion of her body” - once he got stabbed, he grabbed her arm and hand and felt like she was still trying to stab him. I do not understand how she, at 123 pounds and in a position of weakness lying down, could continue to stab him if he was holding her hand. [ 156 ] She did not, in fact, stab him again – he sustained only the one stab wound, to his chest. [ 157 ] She was still screaming and he was scared he would get stabbed again. He rustled the knife from her and got it “after a few minutes” by grabbing the knife blade, causing the significant cut to his left hand seen in Exhibit 7.

The knife blade separated from the handle. [ 158 ] In direct, he said that once he realized the knife was” out of the picture,” he screamed, "It's over, it's done, we're done," to let her know it was over with. I do not understand that at all - I do not understand what was supposed to be done or over with, or why he would have had to reassure her that something he had started was now concluded. [ 159 ] In cross-examination, however, he testified that he does not recall saying that, but having heard the evidence of Mr. Van Der

Linden that he heard a male say those words, that he could see himself saying something like that. [ 160 ] J.L. exited the tent and he tried to exit the tent also, but he had lost a lot of blood already and believes he passed out in her tent. He did not realize how bad his hand wound was until he woke up, disoriented, inside her tent about an hour later. He thought he exited through a door above the hood of the vehicle, but the photos do not show a door at that location. The only door that appears to have been used is the main door accessed via the ladder.

That ladder had blood at the top of both side rails, which I infer is his blood, given that he was the only bleeding person to exit the tent using the ladder. I find that he left the same way he came in. [ 161 ] Inside the tent, he knew he had blood all over his hand, and from his medical training, knew it had to get stopped. Because of his medical training and experience, he always has a first aid kit in his car. In cross-examination, he recalled taking it out of the trunk and putting it on the back seat of his car for easy access.

He later testified that he does not recall doing so, but knows that the kit is always in his trunk. [ 162 ] He went to his car and wrapped up his hand using strips of sheets he has for emergency first aid purposes, but knew that would not adequately stem the bleeding. [ 163 ] He was feeling woozy and disoriented. He passed out again beside his car for an unknown period of time. [ 164 ] He stood up when he regained consciousness and looked for his car keys, so he could drive for medical help.

Not finding them in their usual spot in the cupholder of his chair in his campsite, he went back to J.L.'s campground thinking they must be there. [ 165 ] In cross-examination, he confirmed that as a trained medical person with experience in the emergency room, he knew that he was in dire need of help at that point. [ 166 ] He knew there were other campers nearby, but he did not ask any of them for help. [ 167 ] He did not wake his son up to go get help, because he was trying to find his keys, and did not wake his son up to help find the keys because he was sleeping.

He also testified, however, that he planned to wake his son up to go with him once he did find his car keys. When pressed on the issue, Mr. Morgan resorted to the explanation that he was just not exercising good judgment because he was drunk and losing blood. [ 168 ] As he began walking back to J.L.'s site, he saw a truck “racing toward” him at a fast pace.

The darkness prevented him from seeing that it belonged to a park ranger. [ 169 ] He testified to a heightened awareness, based on his experience in the emergency room and as an EMT that, if something goes wrong between a male and a female, the male is always assumed to be at fault and to have done something wrong. Worried, therefore, that the truck contained vigilantes on behalf of the woman from the tent, he ran into the bushes for safety. [ 170 ] The exertion of running caused him to get dizzy and he again passed out. [ 171 ] When he regained consciousness, it was starting to get light out.

He tried to stand but could not, but he saw a uniformed officer, now known to be Ranger McLeod, and his partner about 20 yards away. [ 172 ] He tried to yell to the officer but could not. He tried to stand up to get to the officer, but could not, so he crawled through the woods toward him. Ranger McLeod, however, testified that Mr. Morgan walked toward him. [ 173 ] When the officer noticed him, he yelled at Mr. Morgan to stop. Mr. Morgan told him he needed medical attention and asked for help. Ranger McLeod told him an ambulance was on its way and that he needed to stop and get on the ground.

That he was ordered to the ground is inconsistent with Mr. Morgan's assertion that he was crawling and consistent with Ranger McLeod's evidence. [ 174 ] He immediately got on the ground, which is inconsistent with Ranger McLeod's evidence that he remained standing for five to 10 minutes before laying down. [ 175 ] Mr. Morgan asked for medical attention a number of times. [ 176 ] About an hour later, a female constable, Constable Clark, approached him and helped him to his feet. He felt vertigo, like the world was spinning, and told them he had to throw up. They let him get back on his knees, where he vomited.

He attributed the vertigo to the whiskey and his blood loss, coupled with the sudden change of position from lying down to standing. [ 177 ] He felt very poorly and thought he was going to die. [ 178 ] He was put into the police cruiser and read his rights, and he asked to speak to a lawyer. He felt very thirsty and a lot of pain. At his request, Constable Clark re-cuffed him in front of his body, but she did not give him the medical help he sought. [ 179 ] When the ambulance arrived, the paramedic unwrapped his hand, observed the injury, and determined he needed to go to hospital right away.

His hand was re-wrapped and he was put into the ambulance and taken to the hospital in Fort Nelson, where the artery in his hand was tied up and his hand was stitched closed. [ 180 ] He told both the triage nurse and treating physician that he drank quite a bit of whiskey. Those witnesses did not give evidence. [ 181 ] He testified that he does not remember an air horn at all. [ 182 ] In cross-examination, he testified that he does not remember putting his hands on J.L.'s throat as she described, and denied bringing the cloth into the tent with him. He denied putting a cloth into her mouth.

He testified that he does not think it is true that she turned her head from side to side, trying to get out from under his hand and the cloth, but also testified that after the screaming started, he

does not remember “specifically” what happened. [ 183 ] He denied ever trying to choke or hold her down, or having any intent to harm the woman in the tent. [ 184 ] He does not know exactly what he said to J.L., but it was all said to calm the situation down. He does not recall saying, "I'm going to kill you, I'm going to kill you," but accepts that the independent witnesses heard him say that. When asked in cross-examination about whether he recalled saying, "I'm going to kill you," Mr.

Morgan said that he does not remember what happened after the knife got pulled out; that he thought he was going to die and needed to get the knife from her. [ 185 ] He reiterated, at the close of his direct evidence, that he went into the tent because he was trying to find somebody to drink with; that he was having a good evening and wanted someone to share it with; and that he was drunk and made a bad decision. [ 186 ] Thus, on his evidence, he called out to J.L. from the ground below her tent; then climbed the ladder, unzipped the tent, and called out again; entered the tent, shook her shoulder, and woke her up.

She started screaming, so he put his hand over her mouth but removed it after she bit him. He was stabbed in the chest, realized things were getting worse and knew he had to get out of the tent. Instead of doing so, however, he grabbed the knife blade and ripped it out of the handle.

His EMT and emergency room experience told him it was critical he receive immediate medical help for his chest and hand wounds; but instead of waking his son or going to any of the nearby campers or what turned out to be Ranger McLeod's vehicle, he ran into the bushes where he remained for an hour before approaching the campsite. [ 187 ] He repeated the phrase "I was surprised that she was screaming" a number of times. Cross-Examination [ 188 ] Mr. Morgan did not fare very well in cross-examination. [ 189 ] Crown counsel noted, as I had observed, that Mr.

Morgan had become emotional in his direct evidence about his son. In cross- examination, however, Mr. Morgan said that there have been no complications with his son as a result of this incident; no resulting legal proceedings, and that he and his son, at the request of the mother, have not discussed the events. However, he felt sorry for his son, who had to be “taken by somebody,” and that he was not there for B. He testified that he asked to see B., but officers would not let him. This was not put to any of the officers.

His responses were perplexing, given that he was clearly emotional and tearful when touching on anything to do with his son in direct, yet denying in cross-examination that anything negative came out of the incident as it relates to his son. [ 190 ] More troubling, however, is the change in Mr. Morgan's evidence as to what he thought about the female camper, J.L., as he sat around his campfire. I earlier referenced that in direct and at the start of the cross-examination, Mr. Morgan testified that when J.L. walked past his campsite, they briefly made eye contact and smiled.

It meant nothing to him, was polite, and akin to the perfunctory smile one might exchange with a stranger one passes in a restaurant or a hall. Although it was friendly, he did not see it as an “invitation” or a “friendly opening.” [ 191 ] When questioned further, however, Mr. Morgan conceded that he thought it meant she was “nice, as in friendly.” [ 192 ] When asked whether it “hit him” that she was attractive, he then conceded that he is "a single guy, if there is a female about, of course you think about that kind of thing...I can't say I don't think about that.

I do think about that." [ 193 ] When asked if he thought about it when he saw J.L., he denied it, saying, "No, but if I see an attractive female, I'd notice it." He testified that he did not notice specifically that she was attractive, but did notice that she was about his age and thought "she was the same gal as from the hot springs", so he smiled. [ 194 ] He could not recall, when first asked in cross-examination, what he thought about her level of attractiveness hours later after drinking beer and whiskey. [ 195 ] Mr.

Morgan disagreed that he went to her tent thinking that he might get “lucky.” [ 196 ] It was then suggested that he went to her tent hoping she would wake up and he might end up with “a hookup,” and he testified that, "I wasn't looking for anything unwilling or non-consensual." This is unresponsive to whether he hoped to have consensual sex with her. [ 197 ] He agreed that he is a single guy that “notices” women because of the possibility of connecting in a "male-female way".

He agreed there was a possibility of a one-night stand in the campground, although that was not specifically in his mind when he was drinking. [ 198 ] Nevertheless, he did get a condom out of his car sometime after his son went to bed at 9:30 and put it in his pocket before going over to J.L.'s tent. [ 199 ] He agreed that he was thinking about the attractive female in the cartop tent and that he wanted to talk with her, but said that he was not thinking about talking her into sex at that point. [ 200 ] He testified that then, as now, he always has condoms in his car “just in case,” because “[he] is a single guy.” [ 201 ] Surprisingly, for the first time in cross-examination, he testified that he did have “flirtation” at the hot springs.

He corrected Crown counsel's recitation of his earlier evidence that he just had “chit-chat, where are you going, where are you coming from," and testified that it was on the border of flirting. He said that "being pleasant and nice" can be flirtatious. He then testified again for the first time that the Unknown Female at the hot springs was “giggly,” which was flirtatious.

[202] When Crown confronted Mr. Morgan that he had not earlier described any of the interactions at the hot springs as beingflirtatious, Mr. Morgan chippily responded, "You didn't ask." With respect, Mr. Morgan's direct evidence is diametrically opposed to thenotion of his having had a flirtatious conversation. [203] When asked again what caused him to think a sexual invitation existed at the hot springs, Mr. Morgan said, "That's always apossibility as a male." He then agreed, contrary to his evidence of mere moments before, that the Unknown Female said and did nothingthat would be flirtatious. [204] Mr.

Morgan was cross-examined as to whether the condom and his car keys were in the same pants pocket. He waffled anddeclined to agree that they likely were, and suggested that the pants he was wearing were multi-pocketed cargo pants. Those pants areshown at Exhibit 10, Photos 6, 8, and 9; they are clearly a ripstop type of material and are not cargo pants. [205] Although Mr.

Morgan testified in direct that he thought that the female that walked by was the same person as the UnknownFemale from the hot springs and that he “decided to wake her up or go see if she was awake,” he could not recall in cross-examinationhaving so testified. That is surprising, given that it is a key element to his defence and to his actions that evening. [206] He then accepted Crown's suggestion that he had testified that he "decided to wake her up", and testified that he wanted to see ifshe was awake. He agreed that he was hoping she was awake - that is why he called out to her. [207] Mr.

Morgan carefully testified in direct that all of his attention was focused on his son while they sat around their firepit and hischair was set up so as to face his son, so they could talk. He affirmed in cross-examination that from his site, he could only see J.L.'sSUV, but that he was not looking. THE LAW Break and Enter and Commit Assault [208] Turning to the law and specifically break and enter and commit assault. Mr. Morgan was originally charged under s. 348(1)(a)with break and enter with intent to commit an indictable offence.

At the conclusion of trial, prior to closing submissions, the informationwas amended on Crown's s. 601 application to allege an offence under s. 348(1)(b), breaking and entering a dwelling house andcommitting the indictable offence of assault. Defence Position [209] Mr. Bauder, on behalf of Mr. Morgan, says that s. 348(2) creates a presumption that, where a person breaks and enters a place,those acts are proof, in the absence of evidence to the contrary, that the person had the intent to commit an indictable offence therein andthat Mr.

Morgan did not have the requisite specific intent, in part because of his intoxication and also because he was just going into thetent to find a drinking companion. [210] Once a prima facie case is made out by using this presumption, the accused need only raise a reasonable doubt, which he may doby adducing evidence of an explanation that may reasonably be true. [211] The evidence upon which the accused relies must at least raise a reasonable doubt as to his guilt and, if it does not meet this test,then the prima facie case remains (R. v.

Proudlock, (SCC), [1979] 1 S.C.R. 525). [212] He acknowledges that an explanation that is disbelieved does not constitute “any evidence to the contrary,” as it is no evidence. [213] Evidence of an accused's intoxication which caused him to act in an irrational manner is evidence to the contrary, as it tends tonegative an intent to commit an indictable offence (R. v.

Campbell, 1974 1502 (ON CA)) [214] He submits that when there is evidence to the contrary, in the sense of evidence tending to negative the existence of the necessaryintent, the onus is then upon the Crown to prove the existence of the necessary intent beyond a reasonable doubt. [215] He submits that the Crown has not proven its case beyond a reasonable doubt and specifically has failed to prove beyond areasonable doubt that Mr. Morgan had a specific intent to break and enter the tent or to commit an offence or to be unlawfully in the tent.He points specifically to Mr.

Morgan's intoxication as having vitiated his specific intent to do any of those things. Crown Position [216] The Crown relies on the Supreme Court decisions of R. v. Quin, [1998] 2 SCR 825 and R. v. McRae, 2010 BCSC 558 for theproposition that breaking and entering and committing the offence of assault is a general intent offence and that Crown need only provethat: I. Mr. Morgan entered the tent unlawfully; and II. he thereafter committed an assault. [217] The Crown says that on his own evidence, Mr.

Morgan acknowledges that he entered J.L.'s tent without permission and that itwas a bad decision arising out of his desire for a drinking companion; and that merely laying a hand on her shoulder, as per his ownevidence, is an assault. [218] The Crown, however, says he did much more than that. Specific vs General Intent

[219] In Quin, supra, the majority of the Supreme Court of Canada found that the offence of breaking and entering and committing theindictable offence of assault causing bodily harm is an offence of general intent (p. 830). [220] In McRae, Justice Romilly said at paragraph 100: [100] Whether the offence of breaking and entering is a crime of specific or general intent poses an interesting question given that thecrime of breaking and entering may suppose an ulterior motive.

However, I am provided with good guidance on this point by Martin J.A.in Breese at 515: Breaking and entering a place or attempting to break and enter a place with intent to commit an indictable offence therein is always acrime of specific intent. Breaking and entering a place and committing an indictable offence therein under s. 306(1)(

b) may or may notbe an offence of specific intent, depending upon the indictable offence therein committed. [Emphasis in original] [221] Count 3 in the case at bar refers to the breaking and entering and committing the indictable offence of assault, an offence ofgeneral intent. For these reasons, I find that in these circumstances, the crime of breaking and entering in Count 3 of the indictment is acrime of general intent. Uttering Threats [222] Count 2 – uttering threats - is a specific intent offence.

In McRae, Justice Romilly affirmed at paragraph 103: [103] To prove criminal culpability, it is not necessary that the Crown prove that the offender intended that the threats would beconveyed to the victim, nor for that matter that the offender actually intended to carry them out.

The mens rea of the offence of utteringthreats is an intention to intimidate or that the threats be taken seriously . [223] The decision as to whether the words spoken constitute a threat is an objective test, looked at objectively, in the context of all thewords written and having regard to the person to whom they were directed, would the subject words "I am going to kill you", convey athreat of serious bodily harm to a reasonable person? (McRae, supra, at para. 104). [224] Justice Romilly continued at paragraph 105: [105] … To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively, andreview them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whomthey were addressed. [225] The determination as to whether there was a subjective intent is often based on a consideration of the words used by the accused,but I must be satisfied that Mr.

Morgan had a subjective intent, an intent which goes beyond the mere utterance of the words. CREDIBILITY [226] Where, as here, an accused gives evidence, the appropriate test to follow is that set out by Justice Cory in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 at 758, referring to the appropriate jury charge on credibility: 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [227] And as set out by Justice Wood of the B.C. Court of Appeal in R. v. H.(C.W. (1992), (BC CA), 68 C.C.C. (3d)146 at 155: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [228] This is not a credibility contest as between witnesses.

Such an approach erodes the operation of the presumption of innocence andthe assigned standards of persuasion of proof beyond a reasonable doubt. [229] If I have a reasonable doubt as to the accused's guilt after considering the accused's evidence in the context of the evidence as awhole, I must acquit, even if I do not believe the accused's evidence (W.D. at 757). Application of W.D. to the Case at Bar [230] Mr.

Morgan's entry into the darkened tent of a lone female, unknown to him, to ask her to join him for a drink, is inconsistent withhis heightened awareness of public presumptions about male-female interactions and that if there is a problem between a man and a

woman, the man is always blamed. [ 231 ] He said he wanted to have some company while he had a drink. He had no prior relationship or conversation with J.L. I reject his evidence that they exchanged a gaze as she walked past his campsite. In direct, she testified that she did not have any eye contact with anyone when she walked through the Overflow Lot either time, and she was not confronted in cross-examination to the contrary, despite it being a significant part of Mr. Morgan's defence.

In fact, in cross-examination, she agreed with the suggestion that she had no interaction with any of the other campers in the Overflow Lot, and was just keeping to herself. [ 232 ] J.L. was a complete stranger to him. He did not see any activity in her campsite after his son went to bed. Her tent was dark, and had been for some five hours by the time he went over. There was no reason to believe she was awake or that she would want to get up and come and have a drink with him.

As he approached her tent, he would have been able to see that her tent was dark. [ 233 ] As he called out to her from below her tent, then louder from the ladder, he ought to have reasonably concluded that she was not awake, or was uninterested. [ 234 ] There were possible companions, including the father he earlier spoke with when their children were playing together, or his immediate neighbours who had earlier been doing the very thing he wanted to do - sit around listening to music and drinking, and at whom he had earlier smiled and nodded.

He does not know why he did not approach one of them to join him for a drink. [ 235 ] Additionally, in cross-examination, Mr. Morgan disagreed that everyone in the Overflow Lot had long ago gone to sleep by the time he decided to go to J.L.'s tent, and testified, "I don't know specifically, there were still people stirring." I do not understand then why he would approach the tent of a stranger when it was quiet and dark, rather than approach some of the people that were stirring, unless he had a particular interest in J.L. [ 236 ] Mr. Morgan's evidence changed as to his sexual interest in J.L.

He initially testified in cross-examination that there was absolutely nothing remarkable about his interaction with anyone at the hot springs or in the Overflow Lot, including the other brown-haired petite woman who I have been referring to as the Unknown Female. Then he said she was flirtatious and giggly. Then he said there was nothing flirtatious about their interaction. [ 237 ] Then he said that he is “a normal single guy” with normal sexual interests, so naturally had a sexual interest in J.L. when she walked by because he found her attractive.

He agreed he put a condom in his pocket sometime between 9:30 p.m. and 2:00 a.m., but does not know why and referenced being a “single guy” for whom a possible sexual hookup was always a possibility he wanted to be prepared for. [ 238 ] Mr. Morgan is medically trained and knew that his hand injury required medical attention, yet he failed to seek help from the first available person - the driver of the truck, who we now know to have been Ranger McLeod. Mr. Morgan testified that the injury was so grave that he was going to drive, alone, for help, even though he was drunk and faint from blood loss.

His stated subjective belief that his injury was critical and life-endangering is inconsistent with running into the bushes when the headlights approached. I reject his evidence that he thought the approaching vehicle might contain vigilantes intent on seeking retribution for a perceived wrong against a female camper.

There is simply no basis for such a belief: the truck was travelling slowly, he did not know who was in it or how many people were there, nobody yelled out for him to stop, nobody pursued him on foot after he fled into the bushes, and there was no evidence that J.L. was connected with anyone else, such that she would have a vigilante available to intercede on her behalf. [ 239 ] When asked why he did not ask nearby campers for help when he could not find his keys, he testified that he was trying to get his car to go back to the rangers' station for help.

When confronted, in cross-examination, as to why he did not ask another camper or his son for help once he realized that his car keys were missing, instead of wasting valuable time looking for them in two different campsites, he testified that he was in the process of looking for his keys when the truck came upon him. With respect, that is not what his direct evidence was - he testified that it was as he was walking toward J.L.'s site, having determined that his keys might have fallen out of his pocket there, that the truck approached.

It simply does not make sense that with his awareness that he was in dire need of help and his stated medical training, that he would waste valuable time and effort looking for his keys in a campsite some 30 metres away, rather than seek the help of other campers or wake up his son to help him find his keys. [ 240 ] Moreover, Mr. Morgan did not approach anyone else in the campground for medical help; not the father with whom he spoke earlier; not the unknown group of people in the SUV to whom Mr.

Van Der Linden ran after seeing their interior light on; not the RV beside him; and no other camper in the full Overflow Lot. [ 241 ] Mr. Morgan does not recall telling J.L. that he was going to kill her. Three others heard him say it: Mr. and Mrs. Van Der Linden and J.L. [ 242 ] Mr. Morgan does not recall trying to choke J.L., but the physical evidence, as shown in the photos, show bruising around her neck. [ 243 ] Mr. Morgan denies putting a cloth in J.L.'s mouth, but the physical evidence as shown in the photos and attested to by J.L., show marks on her face consistent with that occurring.

Internal Consistency [ 244 ] Mr. Morgan's evidence was internally inconsistent, as when he testified in cross-examination that he recalls taking his first aid kit out of the trunk and putting it on the back seat, then moments later testified that he does not recall doing so. [ 245 ] It was internally inconsistent when he testified that he "immediately complied" with the park ranger's direction to get on the ground, despite having just said that he was already on the ground, crawling out of the woods toward the uniformed officers. [ 246 ] Mr.

Morgan's evidence as to when he first saw J.L. in the Overflow Lot was inconsistent. In direct, he testified that he saw her SUV, but not her; and that he first saw her when she walked by his site and smiled at him as he and B. were eating dinner.

[ 247 ] In cross-examination, as earlier referenced, Mr. Morgan changed his evidence and stated that when J.L. walked past his campsite as he was eating dinner, it was actually the second time he saw her and thought she was the Unknown Female from the hot springs. [ 248 ] He then became argumentative with Crown and said that he had earlier testified to seeing her in her campsite.

I have reviewed the evidence and he is wrong about that - he testified that he noticed her SUV, but not her. [ 249 ] Minutes later, he again changed his evidence, testifying that he only saw her once, when she was walking past his campsite, and that he was hanging out with his son and not paying attention to other sites.

He tried to explain it as having seen her twice - on her travel away from, then back to her site - but that was a poor attempt to remedy his evidence and I find he was trying to fix his inconsistencies. [ 250 ] He then testified that he could not specify recall the Crown having asked him a question about, or having testified that, he saw a female at J.L.'s site. Then he denied having said in cross-examination that when he was at his site, he noticed the female at her site. I have reviewed the evidence and I am satisfied that he did say that in cross-examination. [ 251 ] I find that Mr.

Morgan was tailoring his evidence. [ 252 ] Even if I am wrong on this point, the internal inconsistency and inability to recall evidence from the preceding minutes gives me concern as to his reliability. [ 253 ] I am troubled by Mr. Morgan's apparent adoption of the evidence of Mr. Van Der Linden as to his words he heard uttered by a male that night. In direct, Mr.

Morgan testified that he yelled, "It's over, it's done," to signify to the complainant that the ordeal was over and to calm the situation down. [ 254 ] As nonsensical as that may be, it was also internally inconsistent with his evidence in cross-examination that he does not remember what he said once he got the knife away from her, but that one of the witnesses said that they heard him say "it's done" and that he can see himself saying that…but that he does not remember specifically saying that. I reject the suggestion that Mr.

Morgan said anything inside the tent, other than, "I'm going to kill you, I'm going to kill you," which he repeated four to five times. I find that Mr. Van Der Linden is mistaken in attributing that statement to Mr. Morgan. [ 255 ] Further, in cross-examination, Mr. Morgan resiled from his earlier certainty as to what he yelled up to J.L. from the bottom of the ladder, saying, "I recall calling, yes, but I don't remember what I said." [ 256 ] He changed his evidence as to how he shook the complainant.

In cross-examination, he testified that he felt the edge of her body in her sleeping bag but that he could not say whether it was her shoulder. He did, however, earlier say with certainty that he shook her shoulder. Was Mr. Morgan Intoxicated? [ 257 ] I must resolve whether there is evidence of Mr. Morgan's condition due to the consumption of alcohol which caused him to act in an irrational manner, and thereby negates his intent to commit an indictable offence. [ 258 ] The Crown says that pursuant to s. 33.1, it is not a defence if Mr.

Morgan's intoxication, if any, caused him to lack the general intent or voluntariness required to commit the offence. That is to say, he does not meet the test set out in s. 33.1(2) of departing markedly from the standard of reasonable care generally recognized in Canadian society because his degree of intoxication rendered him unaware of or incapable of consciously controlling his behaviour. The Crown did note that the Ontario Court of Appeal has recently ruled that to be unconstitutional. [ 259 ] Counsel for Mr. Morgan did not make submissions as to Mr.

Morgan's intoxication, other than to observe that on his evidence, he had consumed some beer and whiskey. The Complainant’s Observations [ 260 ] The complainant, J.L., testified that she did not see other people drinking in the Overflow Lot, but also fairly testified that she was just enjoying a quiet day to herself and was not really paying attention to others. [ 261 ] J.L. testified that she did not smell the odour of alcohol in her tent at the time of the attack. She was not shaken on that. I accept that at the time she did smell the iron smell of blood.

Accordingly, I am satisfied that she was paying attention and is a good historian as to the odours in her tent at the time of the incident. The Park Ranger's Observations [ 262 ] Park Ranger McLeod next dealt with Mr. Morgan first in time at 4:00 a.m., some two hours after the incident, when he saw Mr. Morgan walking across the parking lot, then apparently take off at a run when the vehicle's headlights shone on him. [ 263 ] There is no evidence that Mr. Morgan knew the vehicle belonged to a park ranger or any other authority figure. He simply ran.

Ranger McLeod saw him for only a couple of seconds, enough to identify the person as male, but not long enough to make any conclusion as to apparent alcohol consumption or intoxication. [ 264 ] About an hour later, Mr. McLeod saw Mr. Morgan walking toward him in the Overflow Lot on an animal trail. Again, there is no evidence that Ranger McLeod observed his manner of walking, or whether he was staggering or stumbling. [ 265 ] Ranger McLeod testified that Mr. Morgan periodically asked for help in the one hour he laid on the trail, and that he said he had to vomit as he was being watched by officers.

There is no evidence that Ranger McLeod observed slurred speech or had difficulty understanding Mr. Morgan.

[ 266 ] Ranger McLeod agreed that at the time he thought Mr. Morgan might have been intoxicated, but also that at the time he formed that opinion, he did not know that Mr. Morgan was injured and dehydrated. In light of those two facts, he does not now know whether Mr. Morgan was intoxicated. [ 267 ] He testified that Mr. Morgan vomited profusely while laying on the ground between 5:00 to 6:30 a.m., which may be consistent with alcohol consumption. Mr. Morgan himself, however, testified that he threw up in part because he felt dizzy from blood loss and from standing up after lying down.

External Evidence [ 268 ] Mr. Morgan demonstrated some degree of fine motor skills inconsistent with his alleged intoxication. [ 269 ] The rooftop tent was accessed by a telescoping ladder, at least four rungs of which had to be climbed to get in. There is no evidence that, in the dark, Mr. Morgan had any difficulty climbing the ladder. [ 270 ] There is no evidence he had any difficulty opening the tent zipper in the dark or getting into the tent. [ 271 ] There is evidence that Mr.

Morgan was sufficiently coordinated to apply a cloth across J.L.'s mouth and pin her head to the floor of the tent and hold it there. [ 272 ] There is Mr. Morgan's evidence that he was able to quickly grab and neutralize the knife when it was being swung frantically in the dark. [ 273 ] There is evidence that Mr. Morgan was sufficiently oriented and coordinated to grab J.L. in the dark as she got to her knees and hold her in a headlock. [ 274 ] There is evidence that Mr.

Morgan was aware of sensation such as pain when he was in the tent, in that J.L. testified that he removed his hand from her mouth at least twice when she bit him; and Mr. Morgan testified that it hurt when she bit him. [ 275 ] There is no evidence that Mr. Morgan had difficulty getting out of the tent and down the ladder. The blood on the top portion of the ladder suggests he held onto both sides as he descended. I find this was his blood because, having fallen out of the tent, J.L. did not touch the ladder after being injured. Mr. Morgan is the only bleeding person to us

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