Court File and Parties

COURT FILE NO.: 11-1878 DATE: 2021/02/11 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen Crown/Applicant – and – Sam Tsega Defendant/Respondent

Counsel: Dallas Mack and David Rodgers for the Crown Solomon Friedman and Tasha Bobrovitz for the defendant

HEARD: February 11, 2021

Publication Ban

By court order pursuant to s. 486.5 of the Criminal Code, information that may identify the witnesses referred to as X, Y and Z in connection with this proceeding may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing, broadcasting or transmitting any information disclosing the participation of any of these individuals as witnesses in this proceeding. This publication ban applies indefinitely unless otherwise ordered.

Decision on Crown Application to Revoke Bail

S. Gomery J.:

[1] On January 29, 2021, I found Sam Tsega guilty of manslaughter of Michael Swan pursuant to s. 236 of the Criminal Code. The Crown now seeks an order revoking Tsega’s bail pending his sentencing.

Legal principles on post-conviction revocation of bail

[2] In R. v. Antic, the Supreme Court of Canada characterized the right not to be denied reasonable bail without just cause as “an essential element of an enlightened criminal justice system”. This right is subject to limits, such as the interest in maintaining public order, keeping citizens safe and ensuring the integrity of the administration of justice.

[3] Parliament recognizes the right and its limits in the rules in the Code governing interim release from the time an offender is convicted to the time they are sentenced.

[4] Section 523(1) of the Code set out how long an interim release order remains in force. There are two different regimes, depending on whether or not an accused is charged with the most serious possible offenses, such as murder, listed at s. 469.

[5] A person charged with an offence listed at s. 469 is not presumptively entitled to bail prior to trial. If, however, they persuade a judge to release them pending trial, their bail is automatically revoked when they are found guilty, pursuant to ss. 523(1)(a) of the Code. The offender is taken into custody, where they remain until sentencing, unless they can persuade the judge that they should be granted a further interim release.

[6] The situation is different if the accused is charged with an offence that is not listed at s. 469 of the Code. The accused is entitled to bail pending trial unless the Crown can establish that their interim detention is required for one of the bases listed at s. 515(10). The presumption that most accuseds are entitled to bail continues even after a guilty verdict. Pursuant to ss. 523(1)(b)(ii), if a person charged with a non-s. 469 offence is found guilty at trial, any interim release order in effect remains in force, “until a sentence within the meaning of section 673 is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence”. In other words, even after the accused is found guilty, if they are already free on bail, they remain free on bail unless a judge revokes it.

[7] Based on the Code provisions and the caselaw interpreting them, when the Crown applies for post-conviction revocation of bail for a non-s. 469 offence, five principles apply.

(1) It is up to the Crown to establish that bail should be revoked

[8] The trial judge’s power to revoke bail post-conviction is found at s. 523(2). It provides that the trial judge may, at any time, vacate an order for interim release “on cause being shown”. This means that the Crown has the burden to show that the accused should be incarcerated immediately. Even though the right to reasonable bail is rooted in the presumption of innocence, s. 523 means that the “mere fact of conviction” of most offences does not mandate the accused’s remand to custody.

(2) The accused’s immediate detention must be justified under s. 515(10) of the Code

[9] In order to show cause under s. 523(2), the Crown must persuade the judge that the detention of the accused is necessary for one of the reasons enumerated in s. 515(10) of the Code. This means that the accused’s detention must be necessary:

(a) to ensure his or her attendance in court in order to be sentenced (the “primary ground”);

(b) for the protection or safety of the public (the “secondary ground”); or

(c) to maintain confidence in the administration of justice, having regard to all the circumstances (the “tertiary ground”).

[10] Although the court must consider all relevant circumstances, considerations specifically identified in the tertiary ground are:

(i) the apparent strength of the Crown’s case;

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the offender is liable, on conviction, for a potentially lengthy term of imprisonment or, where the offence involved a firearm, a minimum punishment of imprisonment for a term of three years or more.

(3) Generally speaking, the Crown must bring forward new facts that have emerged about the accused

[11] An application for post-conviction revocation of bail occurs only in cases where the convicted offender was previously determined to be eligible for interim release. This means that, for the purpose of a s. 532(2) application, the Crown must generally rely on new facts that have emerged during the trial about (i) the circumstances surrounding the commission of the offence for which the accused has been tried; (ii) other criminal acts engaged in by the offender; or (iii) the offender’s failure to comply with the terms of his or her release.

(4) The judge must take into consideration the impact of pre-sentencing detention on the offender

[12] In determining whether to revoke an offender’s bail, the judge should consider whether detention may adversely affect the offender’s ability to prepare for a sentencing hearing. If the Crown raises legitimate concerns about the offender remaining on bail, the judge should consider whether they could be addressed by varying the terms of release, consistent with the “ladder principle” established in R. v. Antic. The judge should also consider whether there is any possibility that, at a sentencing hearing, a custodial sentence might not be ordered.

(5) Revocation of bail post-conviction is the exception rather than the rule

[13] As noted by Justice Ducharme in R. v. Green, neither public safety nor maintaining public confidence in the administration of justice requires that bail be routinely revoked following conviction. Public safety is protected by the automatic revocation of bail for the most serious offences. The Crown may furthermore apply at any time to revoke a judicial release order if the person subject to it breaches its conditions.

Analysis

[14] Although Tsega was initially charged with murder, he was tried before me solely on a charge of manslaughter. This means that he is presumptively entitled to remain on bail until sentencing unless the Crown can establish that his immediate detention is necessary.

[15] The Crown seeks the revocation of Tsega’s bail on the basis of the tertiary ground of s. 515(10). It admits that he is not a flight risk and that his release does not present a danger to the public. It argues, however, that public confidence in the administration of justice will be undermined if he is permitted to remain at large.

[16] In considering whether a denial of interim release is necessary to maintain public confidence in the administration of justice, all circumstances must be considered, and not only those specifically listed at ss. 515(10)(c). I will accordingly first consider the specific factors identified in the tertiary ground, then consider other circumstances relevant in this particular case. I will then weigh all of the circumstances to determine whether the Crown has shown that Tsega’s bail ought to be revoked.

The strength of the prosecution’s case

[17] The apparent strength of the Crown’s case is arguably not relevant to the assessment of an application to revoke bail after conviction. Parliament has legislated, via s. 523 of the Code, that an interim release order shall continue in place post-conviction for most offences. On this theory, the strength of the prosecution case would be relevant only where a request to revoke bail took place in the context of a pending appeal from conviction or an application for mistrial.

[18] The Crown nonetheless asks me to place weight on this factor. It points out that, when Tsega was first granted bail in December 2010, the court expressed some doubt about the strength of the prosecution’s case. The Crown says that, just as this view informed the decision to liberate Tsega pending trial, my view on this application should be informed by the recognition that Tsega has been found guilty.

[19] I give this circumstance some weight, but not very much. The person subject to ss. 523(1)(b)(ii) has, in every case, been found guilty. The assumption is nonetheless that, if they are already on bail, they will remain on bail until they are sentenced. Giving any significant weight to the strength of the prosecution case, in these circumstances, undermines the regime that Parliament has put into place.

The gravity of the offence

[20] For the purposes of ss. 515(10)(c), the judge must assess the “objective” gravity of the offence in comparison with other offences in the Criminal Code. This is determined on the basis of the maximum sentence for the offence as well as any mandatory minimum jail term.

[21] A judge sentencing someone for manslaughter has considerable latitude, depending on the circumstances of the crime and the offender. The maximum sentence is life in prison. There is no mandatory minimum, unless a firearm was used, in which case the offender must be sentenced to at least four years in jail.

[22] The Crown and the defence disagree about the range of sentence appropriate in this case. This debate is not relevant to my consideration of the gravity of the offence. Manslaughter is objectively one of the gravest offences in the Code, based on a potential life sentence for those convicted of it.

The circumstances surrounding the offence

[23] Relevant possible circumstances identified in St-Cloud include whether the offence is a “violent, heinous or hateful one”, whether it was committed in an exacerbating context, such as domestic violence, or as part of a criminal gang or terrorist organization; or whether the victim was particularly vulnerable due to age or disability.

[24] The home invasion in which Tsega participated was violent and traumatic for those involved. Swan and others in the house were not particularly vulnerable. The survivors of the robbery and murder will likely carry this event with them for the rest of their lives, however.

[25] The fact that a firearm was used during the home invasion is an exacerbating factor, for the purposes of this application.

[26] On the other hand, I must take into account that Tsega was not present during the home invasion itself and that, on the evidence before me at trial, he did not have a role in planning it or preparing for it prior to February 21, 2010. As stated in St-Cloud: “If the offence was committed by several people, the extent to which the accused participated in it may be relevant”.

Tsega’s liability for a potentially lengthy term of imprisonment and a minimum punishment of imprisonment for a term of three years or more

[27] The Crown and the defence have radically divergent ideas as to a fit sentence in this case.

[28] The Crown relies on cases where lengthy penitentiary sentences have been given for manslaughter even though the offender did not have direct knowledge that the person who killed the victim was armed. It points out that, when Tsega was convicted the first time, he was sentenced to nine years in jail, and that two of the individuals who committed the home invasion got life sentences, while the third served the equivalent of 11 years and 10 months before being released as part of a plea deal. The Crown takes the position that a mandatory minimum sentence of four years would apply in this case, because a firearm was used in the commission of the offence.

[29] The defence contends that Tsega could be sentenced to a much more modest sentence or even time served, having regard to the credit he will get for time already spent in detention (399 days); the lengthy period he has lived under conditions since his arrest in late 2010; his limited involvement in the offence; his lack of any criminal record; and his significant potential for rehabilitation. The defence argues that Tsega should benefit from more credit for pre-sentence custody based on the timing of the coming into force of the Truth in Sentencing Act. Finally, it contends that the mandatory minimum of four years does not apply because Tsega did not know that the perpetrators of the home invasion had firearms.

[30] It is obviously premature for me to reach any conclusion about a fit sentence for Tsega in advance of sentencing submissions, or to make a determination on legal arguments on a potential mandatory minimum sentence or the application of the Truth in Sentencing Act. Clearly, however, Tsega is liable for a potentially lengthy sentence in prison.

Other relevant circumstances

[31] I find the personal circumstances of Tsega and the victims of this crime to be additional relevant circumstances:

• Tsega was 18 years old when he participated in the home invasion. He had no criminal record
• Swan was only 19 years old when he was killed. His death was a terrible loss to his family and friends. So too was the broader community’s realization that their quiet suburb could be the site of a violent, senseless crime.

[32] In my view, these circumstances have equal weight.

[33] Another factor is the time that may pass before Tsega is sentenced. Based on the defence’s submissions, which were not contradicted by the Crown, a sentencing hearing may be scheduled two or three months from now. I would not anticipate a lengthy delay between the sentencing hearing and a sentencing decision.

[34] Finally, the defence argued that the Covid-19 pandemic argues against the revocation of Tsega’s bail, for two reasons. First, he may be exposed to a heightened risk of contracting the virus while in jail. Second, it will be difficult for him to participate in the preparation of sentencing submissions if he is incarcerated, given the enhanced restrictions placed on inmates as a result of the pandemic.

[35] I do not give much weight to the first argument in the absence of any meaningful evidence showing that Tsega is at a higher risk of contracting the virus while in jail due to some personal characteristic or risk factor at the Ottawa Carleton Detention Centre. I do, however, take judicial notice of the increased restrictions currently placed on inmates, which may make it challenging for Tsega to meet with counsel.

Conclusion

[36] In assessing the impact of allowing Tsega to remain on conditional release pending his sentencing, I must consider what a reasonable member of the public would think about his continued release until his sentencing hearing in two or three months. I must assume that this reasonable person is familiar with the fundamental values of our criminal law, including the right not to be unreasonably deprived of bail.

[37] Given the history of this case and the impact of this crime on Swan’s family, friends and community, I understand why they might strongly feel that there is no reason why he should remain free pending the sentencing hearing. There are factors that weigh in favour of detention under the tertiary ground. These include, notably, the seriousness of the crime that he committed, the violence of the home invasion, and the possibility that Tsega will receive a lengthy jail sentence.

[38] As already mentioned, however, the Criminal Code establishes a presumption at s. 523(1) is that an offender on bail will remain on bail after sentencing, unless the Crown establishes a basis under one of the grounds in s. 515(10) to revoke bail. This usually requires the Crown to bring forward new facts that were unknown when bail was granted.

[39] Beyond the fact that Tsega has been convicted of a very serious offence, the circumstances relied on by the Crown in this application were all known when he was granted bail by the Court of Appeal in June 2017. At that time, in fact, he had been found by the first trial judge to have a much more extensive involvement in the planning and preparation of the home invasion than I found based on the evidence at his re-trial.

[40] Tsega has been on interim release for almost nine of the last ten and a half years. At no point has the Crown alleged that Tsega breached his bail conditions or failed to appear before the court whenever ordered to do so. The Crown has not brought forward any new facts that might cause me to question the appropriateness of bail previously granted to Tsega.

[41] There are new circumstances that favour Tsega’s continued release on bail. He may have trouble preparing submissions for sentencing while in a detention centre as a result of restrictions placed on inmates during the Covid-19 pandemic.

[42] As was the case in R. v. Green, the delay until Tsega is sentenced will be relatively short. A reasonably informed member of the public would not, I conclude, find that extending Tsega’s conditional release for a short period erodes confidence in the justice system.

[43] The Crown argued that the unsuitability of Sue Jackson, Tsega’s mother, as a surety undermines public confidence in the administration of justice, because I found that she was willing to lie to protect her son. The defence points out, on the other hand, that she has posted $50,000 in security, which would be forfeit if she failed to report a breach of Tsega’s conditions. She has acted as Tsega’s surety for over ten years, without incident.

[44] The argument that Jackson is an unfit surety was considered, and rejected, by the Court of Appeal when it granted Tsega bail pending his appeal. I, likewise, cannot conclude that Jackson’s role in Tsega’s bail plan would undermine public confidence in the administration of justice in any significant way.

[45] In all the circumstances, I conclude that the Crown has not shown that Tsega’s immediate incarceration is required to maintain public confidence in the administration of justice. The application to revoke his bail is therefore denied.

S. Gomery J. Released: February 12, 2021