Indigenous killer's race a mitigating factor as appeal court reduces his jail term

An Indigenous Ontario man has swapped a life sentence for 12 years in prison for killing a disabled drug dealer.

Kenneth Morrison was convicted of first-degree murder for his role in the July 7, 2018, home invasion in Kitchener, Ont., that left Shaun Yorke, 46, dead with a bullet in his chest. Morrison and an accomplice were both sentenced to life in prison with no chance of parole for 25 years. But Morrison successfully appealed his case to Ontario’s top court, which set aside his murder conviction, substituted a conviction for manslaughter, and sentenced him again.

Morrison’s Indigenous status was considered a mitigating factor by Ontario’s Court of Appeal, as was his guilty plea to manslaughter and his “minimal” criminal record before the robbery gone bad.

“Morrison was 27 years of age at the time of the offence. While he had a criminal record, it was minimal, with the longest custodial sentence having been 75 days intermittent,” Justice Michal Fairburn wrote in a recent decision from the three-judge panel.

“Taking into account all of these factors, it is my view that Mr. Morrison’s sentence should be one of 12 years, at the very low end of the range. By imposing this sentence, I do not for a moment diminish the seriousness of his crime. A vulnerable man, living with cerebral palsy, senselessly died when attacked in his own home. Normally, for a gun-wielding participant to a home invasion robbery, the sentence would be higher than 12 years. It is the unusual confluence of mitigating factors in this case, including the progress that Mr. Morrison has made while in custody, that provides some confidence that he can be released from custody in the near future and make something of his life.”

Morrison asked for a Gladue report at his original trial, which was not ordered because of the mandatory life sentence to be imposed.

Gladue principles, set out in a Supreme Court of Canada decision, require sentencing judges to consider the unique circumstances of Indigenous offenders, as well as systemic issues like the impact of residential schools, to address the over-representation of Indigenous people in Canada’s prisons.

Morrison and his father provided the appeal court with affidavits that “detail a difficult past, lost connections with relatives who lived on the Six Nations of the Grand River reserve in Ohsweken, Ontario,” said the appeal decision. “Mr. Morrison’s father recounts a difficult life, marked by alcohol abuse, family violence and alienation. As a result, Mr. Morrison’s father became disconnected from his Indigenous roots, which had a reverberating impact on his children. This information would normally be included in a Gladue report to more fully inform the court about the impact of colonialism on Mr. Morrison.”

While behind bars, “Morrison has had the opportunity to reconnect with his Indigenous heritage. He has attended smudging ceremonies and sought services from the Indigenous liaison officer,” Fairburn said.

With the change of convictions, the appeal court reconfigured Morrison’s sentence by ordering him to serve another 14 months behind bars on top of what he’s already served.

“Given the time already served, this achieves the effect of a 12-year sentence imposed on the date of the original sentence,” Fairburn said.

Morrison’s murder conviction was set aside because he didn’t have the required intent to kill Yorke, a drug dealer he was planning to rob.

“Mr. Morrison correctly argued, and (the Crown) fairly acknowledged, that the trial judge applied an objective test when concluding that he had the requisite mens rea for murder as a party to a common unlawful purpose. Specifically, the trial judge found Mr. Morrison ‘would have known or ought to have known’ (emphasis added) that the shooting of Mr. Yorke was a probable consequence of carrying out the home invasion robbery,” Fairburn said in a Feb. 18 decision.

“The only constitutional basis upon which to establish mens rea for murder is subjective knowledge of the likelihood of the commission of the incidental offence. In other words, the accused must subjectively foresee that murder will likely be committed by one of the participants to the common unlawful purpose while carrying out the original agreement.”

During Morrison’s November 2021 sentencing, Justice James Sloan of the Superior Court of Justice found that “each of the accused would have known or ought to have known that the shooting of the physically-large drug dealer (Mr. Yorke) was a probable consequence of their carrying out the home invasion robbery with two guns at the ready.”

“The parties are agreed that the trial judge erred in relying upon an objective mens rea to find Mr. Morrison guilty of first degree murder,” Fairburn said.

Morrison’s accomplice, Mowafag Saboon, was also convicted of murdering Yorke during the 2018 robbery that took place around 1 a.m. at Yorke’s townhome.

Two youths were convicted of manslaughter in the same case.

On the night Yorke died, the foursome hatched a plan to rob him, said the appeal decision.

“The two young men were familiar with the layout of the home. And they knew that Mr. Yorke, who was believed to be a drug dealer and thus likely to have drugs and money in his home, had mobility issues resulting from the fact that he lived with cerebral palsy.”

But “things quickly went sideways, Mr. Yorke was shot through the chest and (Morrison and Saboon), along with their accomplices, fled the scene,” Fairburn said.

Sloan found Saboon “was guilty as a principal to the murder. This finding rested on the trial judge’s factual conclusion that it was Mr. Saboon who shot Mr. Yorke,” Fairburn said.

“The trial judge found that, in ‘firing a bullet from an extremely close range into (Yorke’s) chest area,’” Saboon “meant to cause bodily harm that he knew was likely to cause death.”

Saboon also appealed his conviction, arguing that he shot Yorke in defence of Morrison, his childhood friend. But his appeal was dismissed.

“In this case, there was no air of reality to the defence,” Fairburn said.

“Even on a limited weighing of the evidence, the essential facts about the shooting were available to the trial judge. These facts involve two armed adults (accompanied by two youths) breaking into a home in the middle of the night. The unarmed resident, threatened at gunpoint in his bedroom, responds by tackling the robber and is almost immediately shot by the robber’s accomplice. One is hard-pressed to think of a jury, let alone a jury acting reasonably, who would accept that the shooting was justifiable as a defensive act.”

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