) ) HIS MAJESTY THE KING – v. –, 2023 ONSC 5161

CITATION : R. v. Morris, 2023 ONSC 5161 COURT FILE NO.: 8532/21 DATE: 2023-09-27 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HIS MAJESTY THE KING – and – MICHAEL MORRIS Defendant ) ) ) ) ) ) ) ) ) ) ) W. Trent Wilson , for the Crown Eric D. McCooeye , for the Defendant ) ) HEARD: August 28, 2023 gareau j. REASONS FOR SENTENCE [ 1 ] The offender is being sentenced on Count 1 in an indictment dated December 14, 2021. Count 1 reads as follows: 1. Michael James Morris between the 1 st day of May in the year 2019 and the 30 th day of June in the year 2020 at the Town of Bruce Mines and in Johnson TWP in the said Region, did commit a sexual assault on N.B., contrary to

section 271 of the Criminal Code . [ 2 ] The offender was found guilty by a jury on April 25, 2023, of the offences in Counts 1, 2 and 3 in the indictment. Counts 2 and 3 were conditionally stayed by the court in accordance with the Kienapple principle. [ 3 ] A hearing on sentencing issues was held by the court on July 7, 2023, at which time counts 2 and 3 in the indictment were conditionally stayed by the court.

As to the facts on which the offender is to be sentenced, the court concluded that the incidents in the trailer and the garage would be the incidents that form the basis of the facts which led to the conviction on Count 1 in the indictment, and not the two snowmachine incidents or the incident at the bluff, or in other words, incidents numbered 3, 4, and 5. [ 4 ] A sentencing hearing took place on August 28, 2023, during which the court received submissions from counsel with the court’s decision reserved to September 27, 2023.

SALIENT FACTS [ 5 ] There is an incident in the trailer involving the complainant and the accused where the accused rubbed and played with the complainant’s penis and sucked on his penis. The next incident occurred in the garage at the home of Michael Morris. The offender told the complainant that he wanted to make him feel good. The offender grabbed his own penis and the complainant’s penis and he was moving the penises from side to side mimicking a sword fight. The offender tried to put his penis in the butt of the complainant but was

unable to do so. The offender sucked on the penis of the complainant in the garage. [6] The complainant was a young person, just 14 years of age when the incidents took place. The offender was a friend of thecomplainant’s stepfather and was known to the complainant and was often left alone with the complainant. The offender was close tothe complainant’s family, he befriended the complainant and visited the home of the complainant frequently, on an almost daily basis.

SENTENCING PRINCIPLES [7] There is no disagreement between counsel that the paramount sentencing principle for the sexual assault of a young person isdeterrence and denunciation and that a substantial custodial sentence must be imposed on the offender. Counsel disagree on the length ofthe sentence. Counsel for the Crown suggests a sentence of five years. Counsel for the offender suggests a sentence of three years. Theoffender was in custody from July 9, 2021 to July 14, 2021 with respect to this offence, for a total of six days, which equates to nine daysof pre-trial custody with enhancement.

The offender was also on strict release conditions when he was out of custody. Although notsubject to strict house arrest, the offender was subject to a curfew requiring him to be in his residence daily between the hours of 9:00p.m. and 7:00 a.m. This so called “Downs” credit can be taken into account by the court not as a deduction from the otherwiseappropriate sentence, but as a factor to be taken into account in determining the overall appropriate sentence. [8] In determining what is a fit and just sentence the court is guided by

section 718 of the Criminal Code of Canada which setsout a list of principles and objectives that the court must consider when determining the appropriate sentence to be imposed on MichaelMorris.

Section 718 reads as follows, The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) To deter the offender and other persons from committing offences; (

c) To separate offenders from society, where necessary; (

d) To assist in rehabilitating offenders; (

e) To provide reparations for harm done to victims or to the community; and (

f) To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community. [9] As indicated in

section 718.1 of the Criminal Code, “A sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender.” [10]

Section 718.1 of the Criminal Code of Canada specifically provides that “when a court imposes a sentence for an offence thatinvolved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation anddeterrence of such conduct”. [11] Furthermore,

section 718.2 of the Criminal Code of Canada considers aggravating factors in imposing sentences that theperson abused was under the age of 18 years and that a position of trust or authority in relation to the victim was abused whilecommitting the offence. [12] The fundamental duty of the court is to impose a sentence that is just and fit for the offender and for the offence. As this courthas observed on numerous occasions, the sentencing of an offender is not a science but rather an art.

By its very nature, it is anindividualized process to find the appropriate sentence for the offence to reflect the moral culpability of the offender. [13] Given the fact the offence involved the abuse of a child by a person who is in a position of trust, the jurisprudence is clear thata custodial sentence must be imposed by this court. The question is the length of the custodial sentence. [14] Recently in R. v. Friesen, 2020 SCC 9 , [2019] S.C.J. No. 100, the Supreme Court of Canada provided guidance withrespect to sexual crimes against children and the sentencing principles relating to these crimes.

As the court noted in paragraph 51, Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity,and gravely wounds their dignity. As noted by the court, children have the right to develop to adulthood free from sexual interference and exploitation by adults. As notedin paragraph 56, the Supreme Court of Canada recognized that “sexual violence against children can cause serious emotional andpsychological harm, that, as this court held in R. v.

McCraw, (SCC), [1991] 3 SCR 72, “may often be more pervasiveand permanent in its effect than any physical harm”. [15] In Friesen, the court went on to say, with respect to sentences to be imposed for sexual offences against children, It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children cause andthe wrongfulness of sexual violence. In particular, taking the harmfulness of these offences into account ensures that the sentence fullyreflects the “life-altering consequences” that can and often do flow from sexual violence. [16] In R. v.

T.J., 2021 ONCA 392, the Ontario Court of Appeal applied the sentencing principles set out in Friesen. At paragraph17, Zarnett, J.A., indicated that, In Friesen, the Supreme Court of Canada sent a strong message that:

sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase . Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [Emphasis added.] at para. 5. [ 17 ] The Court of Appeal further noted in R. v.

T.J. at paragraph 30 , While noting that judges must retain the flexibility to do justice in individual cases, Friesen conveyed an overall message that: Mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should neither be unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim... at para. 114. ANALYSIS/DISCUSSION [ 18 ] The offender is 41 years of age.

He was born on October 10, 1981. The offender is to be sentenced basically as a first offender, as he has an unrelated conviction for impaired driving in 2001 but a more recent conviction for uttering threats in 2022, which was related to the case at bar, and for which he received a suspended sentence and three years probation. [ 19 ] The court has had the benefit of a pre-sentence report (Exhibit S-1). I would describe the pre-sentence report as unremarkable. It does not provide much assistance to the court in determining why Mr. Morris finds himself before the court.

The offender’s former partner, M.G., describes her relationship with him as financially, emotionally, and mentally abusive. M.G. describes her relationship with him as “predatory”, noting that the offender “took advantage of a naïve person”. In assessing these comments, the court is aware of the fact that M.G. is not now supporting the offender and that they are involved in family law proceedings related to their relationship and his children. The pre-sentence report does indicate that Mr.

Morris has little insight as to the incidents which bring him before the court and that the people who support him, such as his mother, is “fully aware of the lies that were told”. [ 20 ] Although a victim impact statement was not prepared or filed with the court, the pre-sentence report makes it crystal clear the negative effect that the incidents have had on the complainant and his family.

It is worthwhile to repeat the observations on pages 11, 12, and 13 of the pre-sentence report in this regard which read as follows: A.B. and T.B., the victim’s mother and stepfather emotionally explained how the offence has impacted not only the victim, but their entire family. Shortly after reporting what happened to him, the victim moved out of the family home. A.B. explained he could no longer stay there as it was too painful to be reminded constantly as their home and property were where the offences took place. According to A.B., the victim moved to Sault Ste.

Marie, ON with his paternal grandmother where he stayed for nearly three years until this past July. A.B. and T.B. ended up uprooting their family to move to Sault Ste. Marie, ON so they could reunited their family. According to A.B., her son moved in with them immediately upon their arrival in Sault Ste. Marie and has been there since. A.B. informed their family was physically torn apart following the offence. She, her immediate and extended family had limited contact with her son. T.B. described the victim’s behavioural issues in school which ultimately led him to being expelled from his school.

Since the offence, A.B. noted her son was diagnosed with Oppositional Defiance Disorder. He was sent to Kina Awiiya Secondary Program which is a school that specializes in behaviours. According to A.B., it is booklet schoolwork, and the school has a therapist on site. A.B. feels her son has been robbed of his high school experience, an important milestone for a teen. T.B. explained since the offence, he and A.B. do not trust anyone. This has affected their other children as well; they have lost out on experiences such as sleepovers and attending friends’ camps.

T.B. noted he and A.B. blame themselves for the offence and they will do anything to prevent it from happening again. T.B. noted he feels badly about not letting his children have these so called “normal” experiences, however shared he cannot and will not take the risk. Following the offence, A.B. quit her job as a Personal Support Worker (PSW) at a senior’s residence in town after 10 years. She explained it was too hard to be caring for people with “everyone knowing what happened”. A. B. has since found new employment as a PSW/DSW (Development Support Worker) in Sault Ste.

Marie “where nobody knows what happened”. T.B. took time off immediately following the offence from his job at Algoma Steel to be with his family. He did return to work, however, was given two weeks off for the trial earlier this year as he was a witness. T.B. has not returned to work since the trial. He shared his employer is aware of the situation and he has been on a leave of absence. According to T.B. the plan with his employer was for him to be off work until the sentencing was completed as they wanted him to be mentally clear to work.

In the event of an appeal, T.B. informed he will not be returning to work. He does not feel he can safely leave his family at home if the offender is not sentenced and incarcerated. At present, T.B. informed he is receiving his full wages, however after six months he will be reduced to 55% of his wages until his long-term sick leave runs out. T.B. noted his employer has been incredibly supportive of him and his family. According to T.B., he, and his youngest daughter along with the victim testified for the trial. He described how difficult this was on all of them.

A.B. was unable to be with her son throughout the trial as she had also been subpoenaed to testify. She explained it was “absolute agony” not to be able to be there for her son during the trial. A.B. and T.B. shared how hard it was to expose their children to the trial. T.B. shared how stressful it was to testify and face the offender in a room with a full judge and jury. “The entire thing has been an absolute nightmare” A.B.; “I wouldn’t wish this on my worst enemy”.

A.B. informed she is afraid for the safety of her family; she shared how the offender was charged and convicted of uttering threats against them in 2022. T.B. explained they are slightly more at east now that they have moved to Sault Ste. Marie, however, is devastated about leaving their home behind. Their family home sits on 300 acres of property where T.B. and A.B. planned to retire. They described it as “our future, our retirement, our kids’ future”. Presently, T.B.’s parents are living at the home, which also leaves T.B. concerned for their safety due to proximity to the offender.

A.B. has not walked the trails on their property since the offence; “he [the

offender] took all of that from me and my family”. A.B. and T.B. described the strain this has put on their relationship. They both blame themselves extensively for what happened. T.B. shared he feels at fault for being friends with the offender and allowing him into his home, his family. A.B, blames herself for “working so much” allowing the offender time with the victim. Together, the couple noted they continue to work through it every day, however noted it “has not been easy”. A.B. was incredibly emotional during the interview for the pre-sentence report.

T.B. informed they had not provided a victim impact statement to victim services because they did not want to “give him [the offender] the satisfaction of knowing how badly it [the offence] affected” them. They decided to participate in this interview in hopes of sharing their experience with the court, to “give an idea what we have been through”. In the end, A.B. shared this is “the hardest thing we have ever been through”.

A.B. stated this whole experience has ruined every important milestone in the victim’s life since. “It ruined his grade 8 experience, he had to start high school with the offence hanging over him”. A.B. shared the trial started one month after her son turned 16, “he has not been able to enjoy anything about being a teenager”. According to A.B., the victim has not really discussed the ordeal since the conviction was rendered. She did share the victim does not understand why the offender was convicted however “is still free”. A.B. and T.B. shared since the move to Sault Ste.

Marie, they are finally starting to rebuild their family; they want this to end and for their family to “be able to move on with their lives”. [ 21 ] The offender’s unrelated criminal record is certainly a mitigating factor to be considered by the court. Apart from that there is not a great deal of other mitigating factors in the offender’s favour. However, there are numerous aggravating factors in this case. The age of the victim is an aggravating factor. The nature of the incidents and the fact that there is more than one incident is an aggravating factor.

Also aggravating is that the offender had a relationship with the family of the complainant. Mr. Morris was a close friend of the victim’s stepfather, T.B. Mr. Morris was over at T.B.’s home frequently, on an almost daily basis. The victim referred to Mr. Morris as “Uncle Mikey”. The victim was placed in the care of the offender and this family relationship afforded the offender with the opportunity to be alone with the victim and to sexually abuse the victim. Although Mr.

Morris was not related to the victim, he was placed in situations in which he had authority over the victim and on the totality of the matter, I am of the view that there was a significant breach of trust by Mr. Morris in his conduct toward the victim. [ 22 ] A further aggravating factor is the significant negative impact the actions of the offender has had on the victim and on his mother and stepfather. This continues to this day as is evident by the comments contained in the pre-sentence report (Exhibit S-1).

SENTENCE TO BE IMPOSED [ 23 ] Given the fact that this is the first custodial sentence to be served by Mr. Morris, I have not lost sight of the principle of restraint. I have also paid very close attention to the direction provided by the Supreme Court of Canada in R. v. Freisen, being mindful that deterrence and denunciation are the primary considerations for the court in offences which abuse children.

I have considered all factors in mitigation and aggravation and the individual background of the offender, including the comments in the pre-sentence report. [ 24 ] My view is that considering all the factors in this case as set out in my reasons, that a fit and just sentence is five years incarceration on the offence of sexual assault, less the nine days credit for pre-trial incarceration. [ 25 ] With respect to specifics, broken down into days the sentence is 1,825 days less the pre-trial custody credit of nine days for a net sentence to be served by the offender of 1,816 days. [ 26 ] The Crown has requested and I am imposing the following ancillary orders: (

a) A DNA order; (

b) A SOIRA order for 20 years; (

c) A mandatory firearms prohibition pursuant to

section 109 of the Criminal Code of Canada for a period of 10 years; (

d) An order pursuant to

section 743.2(1) of the Criminal Code of Canada that the offender not have any contact with N.B., A.B, A.W.B., or T.B. while he is serving his custodial sentence. [ 27 ] The Crown has also requested an order under

section 161 of the Criminal Code of Canada to take effect upon the offender’s release from custody. The Crown is seeking an order prohibiting the offender from engaging in employment or as a volunteer or being in a position of trust to a person under the age of 16 years of age, and prohibiting the offender from having any contact with a person under the age of 16 years unless under the supervision of an adult over the age of 21 who is aware of the offender’s conviction for sexual assault. [ 28 ] Counsel for the offender takes the position that the condition that Mr.

Morris not engage in employment will create difficulties given the nature of the work done by Mr. Morris and is a condition not required given the circumstances of this case. I am prepared to accede to this position and accordingly under

section 161 of the Criminal Code of Canada there will be an order: (

a) Prohibiting the offender from engaging as a volunteer or being in a position of trust to a person under the age of 16 years; and (

b) Prohibiting the offender from having any contact with a person under the age of 16 years unless under the supervision of an adult over the age of 21 who is aware of the offender’s conviction for sexual assault. The prohibition order will be for 10 years in duration.

Gareau J. Released: September 27, 2023 CITATION : R. v. Morris, 2023 ONSC 5161 COURT FILE NO.: 8532/21 DATE: 2023-09-27 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – MICHAEL MORRIS REASONS FOR SENTENCE Gareau J. Released: September 27, 2023