R. v. Morris Date:, 2015 BCPC 429

Citation: R. v. Morris Date: 20151222 2015 BCPC 0429 File No: 23858-1-K Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LLOYD SPENCER JR MORRIS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Counsel for the Crown: M.L. Crisp Counsel for the Defendant: I.B. Lawson Place of Hearing: Smithers , B.C. Date of Hearing: December 22, 2015 Date of Judgment: December 22, 2015

[ 1 ] THE COURT: Lloyd Spencer Jr Morris stands charged on Information 23858-1-K out of the Smithers Registry in which it is alleged that on April 3rd, 2015 at or near Moricetown, he assaulted Shannon Agnes McCarthy in Count number 1 using a weapon, to wit an ice pick, and in Count number 2, caused Ms. McCarthy bodily harm, namely some gashes to her head that required multiple stitches, and a broken hand. [ 2 ] There is no doubt that in the early morning hours of April 3rd, 2015, Ms.

McCarthy suffered bodily harm. [ 3 ] The Crown alleges bodily harm; defence counsel acknowledges that she suffered bodily harm. [ 4 ] The Crown called four witnesses to set out its version of events. The defence called Mr. Morris. [ 5 ] There were exhibits put before the Court, as well, including:

a) a number of different sets of photographs of Ms. McCarthy's injuries to her hand and to her face;

b) some photographs showing damage to a bathroom door;

c) some photographs showing the general layout of the residence and the television set that ended up at the bottom of the stairs;

d) as well as some of the damage done in the kitchen area of the residence. [ 6 ] A copy of Mr.

Morris' criminal history which dates back approximately a decade and has numerous convictions for a variety of offences that I do not think are particularly relevant to the allegations here, but he does have some convictions that may be relevant to the allegations here including being unlawfully in a dwelling house; multiple convictions for assault; uttering threats; and assault causing bodily harm. [ 7 ] None of those convictions are proof of anything vis-à-vis what occurred on that night, but they are perhaps indicative of Mr.

Morris' difficulties in the past. [ 8 ] In addition, there were exhibits entered that showed photographs of Mr. Morris and some injuries that he apparently suffered during the altercation including a very small puncture-type wound to his right lower abdomen, some abrasions on his hands, and some scratch marks of some significance to his arm and middle torso. [ 9 ] There is also a drawing made by Ms. McCarthy depicting the ice pick in question that she says she was attacked with.

That is all the Court had in the way of the ice pick itself because it was never recovered by the police. [ 10 ] Finally, there was the exhibit from Mr. Morris's family doctor. It is a recent letter dated September 29th of this year in which the doctor set out that Mr. Morris, through no fault of his own, suffers from a number of medical issues that affect certain aspects of his cognition and memory.

He has Fetal Alcohol Spectrum Disorder; he has what could be described as a lower range I.Q.; he has difficulty with executive and cognitive functioning, as well as the recall of information. [ 11 ] In addition to that exhibit from the doctor, it became clear during the evidence of Mr.

Morris that he also was the victim of a serious set of injuries as a result of a car crash and that on the night in question he was heavily intoxicated, both prior to the events that are alleged against him and subsequently, between the time of those events and the time the police found and arrested him. [ 12 ] There were two, what I will describe as, collateral witnesses to the events, the first being, Mr. Alfred. He is a partner of a Ms. Tommy who was also called as a witness for the Crown. He says that he and Ms. Tommy were partying that night.

They left the residence that they were partying at and they were walking home when they went past what he described as Ms. McCarthy's residence where he heard noise of arguing and fighting. [ 13 ] Ms. Tommy ran in, he ran in behind her and remained near the bottom of the stairs. He heard Ms. McCarthy and Mr. Morris arguing but he did not see any activity between them. He thought there was a two-by-four in Mr. Morris' hand and that he was using the two-by-four to strike Ms. McCarthy. He saw what he believed to be one or two strikes, including one to the head.

He acknowledged that he did not see the whole event but he did say that he did see an ice pick. He acknowledged being intoxicated most of the time in the events and at the time he gave his statement to the police. [ 14 ] Later in his cross-examination, he acknowledged that he did not actually see the ice pick; he was going on what he had been told by Ms. McCarthy and Ms. Tommy. He acknowledged that he was engaged in the process of getting Mr. Morris out of the residence and that once Mr.

Morris was ejected, he maintained the guard on the door to make sure he could not get back in. [ 15 ] The second minor civilian witness for the Crown was Ms. Tommy. She confirmed that she and Mr. Alfred were on their way home after partying for the evening and as they were going home, they came by Ms. McCarthy's residence. She says Ms. McCarthy had been at the same party they had been at earlier and that she did not notice any injuries to Ms. McCarthy, but that Ms. McCarthy had left earlier than they had. When they got close to Ms. McCarthy's residence, they heard her yelling and telling Mr.

Morris to get out and when she got into the residence she saw what she described as Ms. McCarthy being struck twice by Mr. Morris with the ice pick. She did not see any other items that were being used during the altercation, but she says that she saw Mr. Morris throw the television set down the stairs and that they were in the residence for approximately five to ten minutes. [ 16 ] At some point, they were able to get Mr.

Morris down to the bottom of the stairs and that in doing so she noted him to be quite drunk and staggering around and eventually he was pushed out and she thought it was necessary to call the RCMP. She placed a call and was only on the line for a couple of seconds when a third party, who I am told resided at the residence, but was not called to give testimony in this matter, took the phone away from her and hung up the phone.

[ 17 ] During her cross-examination, Ms. Tommy appeared to be slightly confused over the chronology of some of the events and maintained her story that she saw Mr. Morris attacking Ms. McCarthy with what she described as the ice pick. She acknowledged in cross-examination she did not actually see the bathroom door get damaged. She relied on what Ms. McCarthy had said that it had been damaged by Mr. Morris. [ 18 ] The main witness for the Crown was Ms. McCarthy. She says that after having met at the same party as Mr. Alfred and Ms. Tommy, she came back to the residence of her boyfriend, Mr.

Naziel and when she came into the house it was darkened. She went up the stairs from the front door and saw Mr. Morris in the living room. [ 19 ] She says she had not had any dealings with Mr. Morris in the days before, but approximately a week before the incident he had asked her on a date and she had turned him down. He did not seem to her to be upset about that circumstance. [ 20 ] Ms. McCarthy admitted to being intoxicated as well and she said that she left the party at approximately four o'clock. That is different than the time Mr. Morris gives for the event and different from the time Mr.

Alfred gives for the event, but somewhat similar to the time Ms. Tommy gives for the events that occurred. [ 21 ] She describes Mr. Morris as sitting on the couch with the ice pick in his hand and she asked him to leave but he attacked her, swinging the ice pick at her, hitting her first in the hand and hit her two or three other times with the pick. [ 22 ] She says as well that she was also struck with a wooden stick which she described as being five to six feet long and one and a- half inches wide, which is consistent with what Mr.

Alfred says was a two-by-four being wielded at one point, but inconsistent with Ms. Tommy who said she only saw the ice pick. [ 23 ] Ms. McCarthy says it was Mr. Morris who started the incident and that the ice pick that he was using was one that had been kept in the basement of the residence. She said this altercation occurred in a variety of areas near the top of the stairs and although she tried to grab the weapon, she did so unsuccessfully, and at that time Mr. Alfred and Ms. Tommy arrived at the residence and Mr. Morris was eventually ejected. [ 24 ] She noted that Ms.

Tommy called the police and then she, Ms. Tommy and Mr. Alfred, left Mr. Naziel's residence and went to the residence she normally resides at to await the arrival of the police and an ambulance. [ 25 ] I will not dwell too much on her injury other than to say she required medical treatment in the manner I have described and she suffered the injuries I described earlier. [ 26 ] In cross-examination, she denied that Mr. Naziel participated in the sale of bootlegged alcohol.

That denial is substantiated somewhat by the evidence of the police officer who said that they had no indication that that residence was being used for that purpose. That is complete opposite to what Mr. Alfred said. When being asked, he was quite blasé about it, saying, "Oh yeah, I know you can get beer there if you want to." [ 27 ] Ms. McCarthy spent considerable time denying those allegations despite several attempts by defence counsel to come at it from different perspectives. She denied the defence theory -- which I will get to in more detail in a moment -- that Mr.

Morris had come to the residence, where she and Naziel, were to buy beer but he did not have enough money, so Mr. Naziel turned him down and she added to the discussion by telling Mr. Morris to leave to which Mr. Morris replied with the words, "You incest bitch." [ 28 ] She denies that she attacked Mr. Morris at that point. In fact, she denied the entirety of the defence's theory of events maintaining her position that Mr. Morris was not a person who was regularly welcome at Mr. Naziel's home because he was known to be a thief. [ 29 ] She professed to have no idea why Mr.

Morris would want to attack her and kill her and that when she asked him to leave he freaked out and began the assault on her. [ 30 ] She denied that when she arrived at the residence the lights were on and Mr. Morris was sitting on the couch uttering the words, "I'm going to kill you." She said, rather, that nothing happened until she told Mr. Morris to leave and then he came after her very fast.

She had no time to escape and had to engage in the altercation with him in order to preserve her health and life. [ 31 ] She acknowledged that she was uncertain as to how the different blows were struck save and except for pointing to the imprint on her broken hand of which she said was some sort of logo or marking that was on the ice pick that can be seen on her hand. [ 32 ] She denied that Mr. Naziel was there, saying that he was away, probably at work, at the time. [ 33 ] The fourth Crown witness was the RCMP member, Constable Moleski. He, of course, came on the scene afterwards.

He says that he was dispatched to the event at approximately 3:27 a.m. That time accords with Ms. Tommy's rendition and Ms. McCarthy's rendition of when things occurred and is at odds, clearly, with Mr. Morris's rendition and Mr. Alfred's version of when things occurred. [ 34 ] The Constable described himself as being seven years on the force, and had dealt with intoxicated people on a daily basis, and was able to confirm that Ms. McCarthy was quite heavily intoxicated.

He described her as being a seven on a ten-point scale, that she had suffered various injuries, that he took a statement from her soon thereafter and by then she had sobered up to a four out of a ten on a ten-point scale. [ 35 ] He described Ms. Tommy and Mr. Alfred as both being intoxicated at approximately five on a ten-point scale. [ 36 ] He described the scene and described the photographs that the Court was presented with, indicating where various things

occurred or appeared to have occurred. [ 37 ] He was the one who arrested Mr. Morris at ten o'clock that morning; so, approximately six hours after he was dispatched. Mr. Morris was so intoxicated when found he was lying on the floor of the trailer that they could barely get him awake. [ 38 ] He was taken back to the Detachment where he was photographed and when asked if he wished to give a statement, he declined. [ 39 ] Constable Moleski said that the RCMP looked for the various weapons that were alleged to have been used in the residence but were unable to find them, and he was uncertain as to where Mr.

Morris was from the time the offence, before the Court, occurred until he was arrested several hours later. [ 40 ] That is the case for the Crown. [ 41 ] Mr. Morris gave evidence on his own behalf. He said that he was intoxicated, and went to Mr. Naziel's residence to buy some more beer. He could not afford to purchase it for the price Mr. Naziel was asking and that Mr. Naziel would not front him the additional money by the way of a loan. Ms. McCarthy told him to, in his words, "Fuck off," and he returned that comment with an insult, calling her an incest bitch saying that he had information that Ms.

McCarthy had at one point in time had sex with her nephew. She got angry and Mr. Morris says he walked down the stairs to leave the residence and while doing so he was struck on the back of the head by an object; he was not certain what it was. It is noteworthy that there were no photographs taken of where he said he suffered that injury. [ 42 ] He says he tried to defend himself from Ms. McCarthy's attack and that near the end of the attack just as he was trying to get out the door that is when Ms. Tommy and Mr.

Alfred arrived. [ 43 ] He said in his efforts to escape he had his shoes in one hand, was trying to get outside, one shoe fell out of his hand as he was getting outside through a complicated set of exterior door locks, and eventually that shoe was thrown out to him and he left. [ 44 ] He described the item that he says Ms. McCarthy used on him as being either a small two-by-four or club that Mr. Naziel makes for fishing. He denied having any weapon that he used on Ms. McCarthy. He says he had the object in his hand briefly but was unable to wrest it away from her and that the struggle lasted for seven minutes.

That is just about the same timeframe that both Ms. McCarthy and Ms. Tommy say the events lasted for. Ms. McCarthy described them as lasting between five and ten minutes, as did Mr. Alfred. [ 45 ] With regard to the television set, thrown at the bottom of the stairs, Mr. Morris denied throwing that television down the stairs. In fact, he says that Mr. Naziel threw it down the stairs as he was leaving. [ 46 ] It is interesting to note that there was very little asked of the other witnesses about how the television got to the bottom of the stairs or indeed why; if Mr.

Naziel was the one that threw it to the bottom of the stairs. Mr. Morris said in his evidence that he felt obligated to repay Mr. Naziel for the damage done to that item. [ 47 ] Under cross-examination, Mr. Morris professed to have quite a clear memory of all of the events that happened in the incident even though he was highly intoxicated.

He had previously been in a serious car accident in which he possibly suffered a brain injury, and he unfortunately suffers from the diagnosis set out by his family doctor, all of which would suggest his capacity to reliably remember what occurred of a particular event could well be diminished. [ 48 ] When you add to that his admission that after the events had occurred he went to another residence, had a bath, got organized and went out looking for yet another party where eventually he says that he was found highly intoxicated, and it was his recollection that sometime after the event he had consumed other alcohol including perhaps what is colloquially described as home brew. [ 49 ] Mr.

Morris says that while he was being assaulted by Ms. McCarthy, Mr. Naziel simply stood there and did nothing throughout the entire incident. [ 50 ] Further, in cross-examination Mr. Morris suddenly stated that the television set actually was broken before it was thrown down the stairs by Mr. Naziel; that it was broken during the struggle between him and Ms. McCarthy and that Mr. Naziel in his words, "Snapped and got pissed off and threw it down the stairs." [ 51 ] Finally, near the end of the cross-examination, Mr.

Morris acknowledged that he was effectively consuming alcohol throughout the entirety of the day before the incident, the night of the incident, and the hours following the incident to the point where he was not certain exactly as to how much he had consumed, but did acknowledge near the end that he drank approximately two litres of home brew in the hours immediately before being found by the police. [ 52 ] The Crown has quite rightly pointed out that this is a case commonly referred to as a W.(D.) case.

That is just a shorthand form that judges and lawyers use to describe the manner in which the Court must consider the evidence in such a trial. [ 53 ] R. v. W.(D.) is a decision of the Supreme Court of Canada found at [1990] 1 S.C.R. 742 where the Supreme Court of Canada directs trial judges to consider the issue of credibility and I would say subsequent decisions have also suggested that it applies to reliability in the following manner. If I believe the evidence of the accused, I must acquit. If I do not believe the evidence of the accused but I am left with a reasonable doubt by it, I must acquit.

If I do not believe and I am not left with a reasonable doubt by the evidence of the accused, I must consider whether on the basis of all the evidence I do accept, I am convinced beyond a reasonable doubt about the guilt of the accused. [ 54 ] It is not meant to say that I must go through each of those three steps in a slavish fashion so long as I make it clear that I have considered the whole of the evidence in arriving at any conclusion with regard to whether or not in this case Mr. Morris is guilty. [ 55 ] I also have to consider the issue of reliability.

There are a number of hallmarks that courts regularly consider in determining the

reliability of evidence because although somebody may be attempting to be truthful, they may not be reliable. [ 56 ] Some things the courts must consider in determining reliability is the internal consistency of the evidence of a witness; the external consistency of that evidence when compared to other witnesses; the ability of the witness in question to observe the events in question and to accurately recall them, keeping in mind the passage of time; any level of intoxication they may be suffering from; and any other factors that might interfere with their capacity to reliability recall events. [ 57 ] I have listened carefully to the evidence and submissions in this matter. [ 58 ] In dealing with the first aspect of W.(D.) , I must come to the conclusion that I am unable to accept the evidence of Mr.

Morris on crucial matters before the Court for a variety of reasons. I simply do not believe his evidence, but I do not necessarily ascribe all that to Mr. Morris trying to mislead the Court by telling lies. I do conclude that some of his evidence is made up for his own benefit, but I conclude even more so that Mr. Morris, as a result of his intoxication and the other contributing factors I have described already, simply does not have an accurate recollection of what occurred that evening and is trying to piece things together. [ 59 ] His evidence, in my view, is not reliable.

It had internal inconsistencies and was inconsistent in great measure with the evidence of other witnesses and at the end of the day, it just does not, in my view, hold together in a logical fashion. [ 60 ] Having concluded I do not accept or believe the evidence of Mr. Morris, I have to also consider whether or not his evidence raises a reasonable doubt. In my view, it does not.

There is nothing in his evidence that, in my view, would raise the spectrum of reasonable doubt particularly in light of the fact that I have already concluded that in large part his evidence is simply unreliable. [ 61 ] Now I must consider the evidence of the Crown and the totality of the evidence that I do accept. [ 62 ] There were certainly some great difficulties with the Crown's case on some factors, but the factors where there are difficulties are, in my view, collateral to the actual determination I must make with regard to whether or not Mr. Morris is guilty.

There are some timing issues, but the timing issues of the primary Crown witness accord with that of the police and one of the collateral Crown witnesses. [ 63 ] There is the issue of whether or not there was an ice pick or a stick or a dowel or a club involved, and even though the ice pick was never located, I am satisfied, based on the evidence of Ms. McCarthy, that an ice pick was engaged during the events between herself and Mr. Morris. I am satisfied that during the melee there may have been more than one object utilized by Mr. Morris, but that the injuries Ms.

McCarthy suffered were as a result of the ice pick, and therefore it is not necessary for me to determine whether or not there actually was a second implement as she alleges or rather if during the melee there was only one item utilized. [ 64 ] Finally, I must come to a determination as to whether or not on the totality of the evidence I accept that Ms. McCarthy was assaulted by Mr.

Morris and that assault caused her bodily harm and whether or not a weapon was utilized. [ 65 ] I have already determined that the weapon utilized was an ice pick or something similar, there is an admission that there was bodily harm, and I conclude that there was an intention on Mr. Morris to assault Ms. McCarthy for reasons I am unable to determine or even speculate about, given Mr. Morris's level of intoxication. [ 66 ] It is not necessary for me to determine that Mr. Morris intended to cause Ms.

McCarthy bodily harm since bodily harm was indeed caused during the event, and in that vein I rely on the decision of Mr. Justice Tysoe, in R. v. Oldford , 2002 BCSC 800 in which he examines and reviews the law on those topics at some length relating them to both Supreme Court of Canada and English decisions. [ 67 ] Having taken everything into account and for the reasons I have just described, it is my view the Crown has proven beyond a reasonable doubt that Mr.

Morris is guilty of assault with a weapon and is guilty of assault causing bodily harm, but, in the circumstances, given that those two items arose from the same set of circumstances, I intend to impose a conditional stay when it comes to Count number 1 because, in my view, it would not be appropriate for Mr. Morris to be sentenced on both counts given the circumstances. (REASONS FOR JUDGMENT CONCLUDED)