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| John L. Hill |
Ontario Superior Court Justice James Sloan sentenced Saboon on Dec. 9, 2021, to life in prison with no parole for 25 years. Morrison filed a constitutional challenge to the mandatory life sentence for first-degree murder and was later sentenced to 12 years’ imprisonment.
At trial, it was shown that four individuals, including Saboon and Morrison, planned and carried out a home-invasion robbery of Yorke on July 7, 2018, believing he had drugs and money and knowing he had mobility issues. Saboon was armed with a handgun, and Morrison with a sawed-off rifle. They entered the home after S.S., a resident, opened the door under duress.
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At trial, the judge found Saboon to be the shooter, relying on eyewitness testimony, identification evidence linking him to the nickname “Fuji” and forensic evidence showing that the shot could not have been fired by Morrison. Saboon was convicted as the principal offender of first-degree murder, with intent inferred from firing at close range.
Morrison was also convicted of first-degree murder under s. 21(2) of the Criminal Code, based on his participation in the planned robbery and the finding that the death was a probable consequence of that plan. However, the trial judge applied an objective standard (“knew or ought to have known”) to assess Morrison’s mental state, a standard later identified on appeal as a reversible legal error.
Both Saboon and Morrison appealed to the Ontario Court of Appeal. The court released its decision on Feb.18, 2026 (R. v. Saboon, 2026 ONCA 113). The court addressed each appeal separately. Saboon argued that the trial judge should have considered whether he shot Yorke in defence of Morrison. Although a trial judge must put any defence with an “air of reality” to the jury, even if not raised by counsel, the court held that this defence did not meet that threshold.
Applying the test for the defence of another under s. 34(1) of the Criminal Code, the court found there was no reasonable basis for a jury to conclude that the shooting was a reasonable response. The circumstances, namely armed intruders breaking into a home at night and shooting an unarmed resident who resisted, could not support a finding that the act was justified. The conduct offended community standards, particularly the requirement that the response be reasonable. Accordingly, the trial judge had no obligation to leave this defence to the jury.
The court also rejected Saboon’s argument that the trial judge failed to explain Saboon’s role in the forcible confinement. The evidence showed that Saboon and Morrison acted together in a planned robbery and confinement.
Although Saboon did not enter the bedroom, he stood armed on the staircase, effectively blocking Yorke’s only means of escape. This constituted active participation in the unlawful confinement. The events, from the bedroom confrontation to the shooting, formed a continuous transaction of domination through threats of violence. The court concluded that Saboon was properly found to be a joint principal in the unlawful confinement.
Saboon also argued that his identification as the shooter relied on inadmissible hearsay, particularly references to the nickname “Fuji.” The court disagreed.
The trial judge relied on circumstantial evidence linking Saboon to the nicknames “Fuji” and “Fufu,” including testimony from Morrison’s girlfriend, an agreed statement of facts and other witnesses present before the robbery. The youths’ testimony about the name “Fuji” was not hearsay; it was admissible as evidence of how the individual was referred to, not as evidence of the truth of an out-of-court assertion.
Taken together, the evidence reasonably supported the conclusion that Saboon was the shooter. Accordingly, there was no error in the trial judge’s identification finding. The appeal was dismissed.
However, the court allowed Morrison’s appeal from conviction due to a fundamental legal error in the trial judge’s reasoning.
The trial judge improperly relied on an objective standard of foresight (“knew or ought to have known”) to convict Morrison of first-degree murder under s. 21(2) of the Criminal Code. For murder, the law requires subjective foresight: that the accused actually knew a co-participant would likely commit murder (not merely that a reasonable person would have foreseen it). The trial judge made no finding that Morrison possessed this required subjective knowledge, nor did the reasons demonstrate awareness of the distinction between objective and subjective foresight. The error was significant and directly affected the verdict. The evidence was not sufficiently overwhelming to apply the curative proviso. As a result, the murder conviction was set aside and replaced with a conviction for manslaughter.
With the substituted manslaughter conviction, the court imposed a new sentence. The court found that a fit sentence would have been 12 years if imposed on Morrison’s original sentencing date (May 26, 2022). This placed Morrison at the low end of a 12- to 15-year range for comparable manslaughter cases involving armed home invasions.
The aggravating factors for Morrison included his active and significant role in the planned home invasion, including providing the location for planning and the vehicle, and attending the scene armed and using a firearm to confine the victim. The offence was a violent home invasion that led to the death of a vulnerable victim.
However, the Appeal Court also considered mitigating factors: his age (27) and minimal prior criminal record, his guilty plea to manslaughter, the harsh pre-sentence custody conditions (extended lockdowns), his Indigenous background and the impact of intergenerational trauma (Gladue factors), and strong evidence of rehabilitation and positive institutional behaviour.
The court sought to replicate the effect of a 12-year sentence as if imposed in 2022, taking into account time served and parole eligibility. To that end, the court imposed a sentence of 14 months, beginning on the date of the appeal decision, effectively aligning his release timeline with what it would have been under the original sentence.
The end result for Morrison was that a murder conviction was set aside and a manslaughter conviction was substituted, resulting in a sentence of 14 months’ imprisonment, for a total effective sentence of 12 years when accounting for time already served.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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