Law360 Canada (April 29, 2026, 3:05 PM EDT) --

John L. Hill

Michael Morris was convicted of sexual assault, sexual interference and invitation to sexual touching by a jury in 2023. He was sentenced to 1,816 days (just short of five years, with credit for pretrial custody) in a penitentiary, plus ancillary orders.

He appealed the conviction and sentence. The complainant was referred to only as N.B. The facts of his offence were succinctly set out in two paragraphs by Justice Edward Gareau, the sentencing judge in R. v. Morris, 2023 ONSC 5161: “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.”

“The complainant was a young person, just 14 years of age when the incidents took place. The offender was a friend of the complainant’s stepfather and was known to the complainant and was often left alone with the complainant. The offender was close to the complainant’s family, he befriended the complainant and visited the home of the complainant frequently, on an almost daily basis.”

N.B. was 16 when he testified about five incidents of sexual abuse by Morris between spring 2019 and June 2020. He also adopted his July 2020 police interview as evidence. N.B. disclosed the abuse to his great-aunt in July 2020, leading to a police report.

The defence called no evidence, focusing instead on challenging N.B.’s credibility and reliability through inconsistencies in his story and between witnesses.

Two aspects of cross-examination are later related to arguments on appeal: N.B. spontaneously asked, “Why would I make this up?” when his truthfulness was questioned. Secondly, defence counsel suggested N.B. and his stepfather might have wanted Morris “out of the picture”; N.B. denied this, and the stepfather gave no evidence supporting such a motive.

The Ontario Court of Appeal considered the trial judge’s instructions and delivered its decision on Feb. 26 (R. v. Morris, 2026 ONCA 140).

The main argument on appeal was that the jury did not receive the required assistance from the trial judge regarding motive, resulting in a fatally unbalanced charge. The Court of Appeal took a functional approach in its review of jury instructions, noting that a properly equipped jury must be accurately and sufficiently instructed (R. v. Abdullahi, 2023 SCC 19).

In this case, there was no basis on which a jury should have been instructed to consider whether N.B. had a motive to fabricate. The court reviewed the case of R. v. L.L., 2009 ONCA 413 but found that a motive to fabricate was not argued to the jury, nor was there a basis in the evidence to suggest the possibility of one. There was also no evidentiary basis for the jury to consider a possible motive to fabricate. The trial judge’s charge directed the jury to consider whether the evidence was sufficiently reliable to be sure that Morris committed these offences.

The trial judge’s instruction reminded the jury that the burden was on the Crown, and Morris did not have to prove anything. It also gave guidance on the assessment of credibility and reliability — guidance that did not suggest that the lack of an apparent motive to lie enhanced N.B.’s credibility or reliability. The absence of an objection to the wording of the motive-to-fabricate instruction is telling. It indicated that, when read as a whole, the charge was accurate on the issue of motive to fabricate.

At trial, defence counsel objected to the inclusion of the myths-and-stereotypes instruction. However, the Appeal Court relied on R. v. Kruk, 2024 SCC 7 as authority for finding that there can be a difference between myth-based reasoning and reasoning based on the circumstances of the case.

The Appeal Court also addressed the instructions given regarding motive. It found that “except perhaps to tell the jury that motive was not an essential element of the offences, there was no reason to instruct on motive to commit the offences, and there was certainly no reason to instruct them to consider motive as one of the many things for the jury to consider on the question of whether the appellant was guilty. Motive is a matter of fact and evidence. Here, there was no evidence of a reason why the appellant would commit the offences separate from the evidence that he actually did so. This was not, for example, a case where a sexual assault occurred but the issue was about the identity of the person who committed it.” Finding nothing improper in the judge’s charge to the jury, the conviction appeal was dismissed.

In considering the sentence appeal, the court relied on R. v. Lacasse, 2015 SCC 64 in holding that interference with a sentence is justified when a judge made an error in principle impacting the sentence or if the sentence is demonstrably unfit. In this case, the trial judge considered Morris’s lack of a record as a mitigating factor and applied the sentencing principle of restraint. The sentencing judge rightly considered the admonition given by the Supreme Court that sexual offences against children often call for upper-single-digit or double-digit penitentiary terms.

The appeal against the sentence was also dismissed.

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). His most recent book, Acts of Darkness, (Durvile & UpRoute) has been shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.

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