Court File and Parties

COURT FILE NO.: 11-RM2878 DATE: 2016/06/03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – SAM TSEGA Respondent

Counsel: Mark Moors and Dallas Mack, for the Applicant Giuseppe Cipriano, Dominic Lamb, and Anthony Paciocco, for the Respondent

HEARD: April 25-26, 2016

ADMISSIBILITY RULING #2: DIScreditable CONDUCT

Aitken J.

Issue

[1] Sam Tsega stands charged with second degree murder in the shooting death of Michael Swan during a home invasion at his residence at 4139 Moodie Drive, in Barrhaven, in the early hours of February 22, 2010. Mr. Tsega, also a resident of Barrhaven, was not present when the murder occurred. Kristopher McLellan, the shooter, has been convicted of first degree murder. His accomplices, Kyle Mullen and Dylon Barnett, have been convicted of second degree murder. These three men lived in Toronto and, throughout this case, have been referred to as “the Toronto Three”.

[2] The Crown’s theory is that, during the Christmas holidays of 2009, when Sam Tsega was visiting in Toronto, he, Dylon Barnett, and Kristopher McLellan planned the Barrhaven home invasion with the goal of stealing marijuana and money. The Crown’s theory is that Mr. Tsega directed the Toronto Three to Michael Swan’s house, and provided them with details of what to expect there, because he knew Mr. Swan was a drug dealer with significant amounts of marijuana and cash on site.

[3] The Crown seeks to introduce evidence of the fact that Mr. Tsega was a regular user of marijuana and that he sold, or gave, marijuana to his friends and acquaintances. The Crown submits that this evidence is relevant to the following issues: (1) opportunity; (2) motive; (3) narration and context; and (4) the credibility of Mr. McLellan.

[4] The Defence argues that evidence of Mr. Tsega’s marijuana use and dealing is inadmissible, as it does not support the inferences sought and because, in any event, any probative value is outweighed by its prejudicial effect.

Summary of Proposed Evidence regarding Marijuana Use and Sales

[5] In addition to summarizing the evidence regarding Mr. Tsega’s use and sale of marijuana, I will provide a summary of the evidence regarding the use and sale of marijuana by various witnesses and by Michael Swan, so that the proposed discreditable conduct evidence relating to Mr. Tsega is put into context.

[6] According to Phil Derick, he and Michael Swan were major marijuana dealers in Barrhaven in the months leading up to Mr. Swan’s murder. Mr. Derick sold predominantly “M”, the less expensive variety of marijuana. In addition to “M”, Mr. Swan sold many exotic varieties of marijuana (“exo”), which tended to be more expensive. He kept those in jars in his bedroom. Mr. Swan kept the bulk of his marijuana in a hidden compartment in the upstairs bathroom at his house. However, a number of witnesses testified that when they were at Michael Swan’s house, marijuana could be seen in Michael Swan’s bedroom and, at times, in other parts of the house. It was no secret that Mr. Swan was dealing in marijuana from the house, with customers coming and going on a regular basis. A couple of times a year, Mr. Swan threw large parties with 100 people or more in attendance and, on those occasions, he would be selling marijuana to the party-goers. According to Mr. Derick, both he and Mr. Swan were purchasing between two and four pounds of marijuana a week, with the largest delivery being five pounds. They often pooled their purchases in order to get the best deals. On the weekend Mr. Swan was killed, Mr. Derick had given Mr. Swan $2,000 to make a large purchase of marijuana on his behalf. At the time, a pound of “M” cost approximately $1,800 to $2,000, and a pound of exotic marijuana cost approximately $2,000 to $2,800.

[7] Both Mr. Derick and Mr. Swan sold the marijuana to members of their age group in Barrhaven. The most common amounts to sell were one ounce ($150 for “M” and $200 for “exo”), a half-ounce, or a quarter-ounce ($40-45 for “M” and $55-60 for “exo”). Mr. Derick claimed to have earned between $500-$700 per week from the sale of marijuana, with this business being his sole source of income.

[8] The weight of the evidence was that Michael Swan likely earned more than Mr. Derick. Tyler Buchanan, Connor Buchanan, Phil Derick, and Garrett Butler, all testified that it was their understanding that Michael Swan was the largest distributor of marijuana in the Barrhaven area – at least in regard to the younger group of 19-25 year olds, with Phil Derick being a slightly smaller distributor.

[9] Connor Buchanan, one of Sam Tsega’s closest friends in 2009-2010, testified that he and Mr. Tsega used to smoke pot frequently in the months leading up to February 2010. Connor Buchanan estimated that he smoked pot once or twice a day, and usually did that with Mr. Tsega at Mr. Tsega’s home, in the park behind his home, or at other friends’ homes. Mr. Buchanan estimated that 80% of the marijuana he purchased came from Mr. Tsega and the balance came mostly from Mr. Swan. On occasion, Mr. Tsega gave Mr. Buchanan marijuana or shared a joint or blunt (larger cigar sized joint) with Mr. Buchanan.

[10] Mr. Buchanan described how Mr. Tsega would frequently sell marijuana at his house, at the park behind his house, at friends’ places, or wherever else they were hanging out. The customers were Mr. Tsega and Mr. Buchanan’s peers – young individuals they both knew. The quantities Mr. Tsega sold were an ounce, a half ounce, or a quarter ounce. Mr. Buchanan usually purchased a quarter ounce (seven grams), from which he could get 15 to 20 joints. According to Mr. Buchanan, Mr. Tsega sold both “M” and exotic varieties.

[11] Mr. Buchanan frequently observed Mr. Tsega purchasing from others, mostly friends living in the neighbourhood. One person Mr. Tsega purchased marijuana from was Phil Derick. Mr. Derick testified to having sold approximately two ounces of marijuana to Mr. Tsega on about four occasions for the sum of $300 each time. Mr. Tsega always paid in cash. According to Mr. Buchanan, Mr. Tsega told him that the most marijuana he had ever purchased at one time was a quarter pound (4 ounces), and he had purchased that from Phil Derick. Connor Buchanan observed hundreds of dollars in Mr. Tsega’s bedroom.

[12] Garrett Butler was another friend of Sam Tsega. In the months leading up to Mr. Swan’s death, Mr. Butler and Mr. Tsega used to hang out together, and one of their pastimes was smoking marijuana. Some of the marijuana smoked by Mr. Butler came from Mr. Tsega.

[13] There is the evidence of Connor Buchanan that, when he and Mr. Tsega attended parties at Michael Swan’s house on Halloween of 2009 and New Year’s Eve of 2009, both he and Mr. Tsega, along with many other attendees, were smoking marijuana and/or drinking alcohol.

[14] The evidence is that Michael Swan was a regular marijuana user, in addition to being a dealer.

Legal Principles

[15] The Crown cannot adduce evidence tending to show that the accused has been guilty of other criminal or discreditable acts, other than the offence charged, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried (Makin v. Attorney-General for New South Wales, [1894] A.C. 57 (P.C.), at 65; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 33).

[16] Before admitting evidence of previous discreditable conduct of the accused, the court must be satisfied on a balance of probabilities that the probative value of the proper inferences from such evidence exceeds any prejudice likely to be created (Handy, at paras. 42, 55). Put more simply, evidence of discreditable conduct of the accused, sought to be introduced by the Crown, will be inadmissible except when its probative value outweighs its prejudicial effect (R. v. L.B. (1997), 35 O.R. (3d) 35 (C.A.), at para. 8). As Charron J.A. stated in L.B. at para. 10, the following matters must be considered by the trial judge:

(1) Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused? (2) If so, is the proposed evidence relevant and material? (3) If relevant and material, is the proposed evidence discreditable to the accused? (4) If discreditable, does its probative value outweigh its prejudicial effect?

Analysis

Is the alleged discreditable conduct that of the accused?

[17] The alleged discreditable conduct is that of Sam Tsega; namely, that he smoked marijuana on a frequent and regular basis, and he sold, or gave, marijuana to friends and acquaintances.

Is the proposed evidence relevant and material?

[18] Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence” (David M. Paciocco & Lee Stuesser, The Law of Evidence 7th ed. (Toronto: Irwin Law, 2015), at 19). It is material if it is directed at a matter in issue in the case (L.B., at para. 16).

[19] The evidence sought to be tendered is relevant to: (1) Mr. Tsega’s interest in and knowledge regarding marijuana and dealing in marijuana and, more particularly, the drug trafficking business engaged in by Michael Swan; (2) the likelihood that Mr. Tsega might discuss marijuana and dealing in marijuana with others interested in the same, such as Dylon Barnett and Kristopher McLellan; and (3) possible motives for Mr. Tsega to participate in the theft of marijuana from another Barrhaven dealer. The evidence makes it more probable that Mr. Tsega was the Ottawa connection to the crime than would be the case if this evidence was unavailable. In addition, this evidence provides necessary context to the relationships among the various witnesses, Mr. Swan, and Mr. Tsega. Without this evidence, it would be impossible to have a meaningful understanding of the backdrop to the offence. Finally, the evidence is relevant to the credibility of Kristopher McLellan and his account of his alleged interactions with Sam Tsega in the months prior to the home invasion.

[20] In regard to the opportunity Mr. Tsega had to be the Ottawa connection to the home invasion, the evidence is relevant to the knowledge Sam Tsega had in the months leading up to the home invasion regarding what marijuana looked like, how marijuana was packaged and stored, what varieties existed, and what those varieties sold for on the street. It speaks to the issue of what Mr. Tsega would have learned through his observations at Mr. Swan’s home. In turn, evidence that Mr. Tsega was knowledgeable about marijuana, through use and dealing, increases the likelihood, all else being equal, that Mr. Tsega would discuss with Dylon Barnett and Kristopher McLellan, other marijuana users, his observations at Michael Swan’s residence regarding quantities of marijuana, types of marijuana, storage practices, and security measures. Evidence that Mr. Tsega was a marijuana user and dealer also increases the possibility, all else being equal, that he had a motive to steal marijuana from Michael Swan. The Crown is not obliged to prove motive; however, evidence of this nature can help to rebut any suggestion that Mr. Tsega had no possible motive to participate in the theft of marijuana from Mr. Swan.

[21] The key issue in this case is whether Sam Tsega provided information to the Toronto Three about Michael Swan, his drug dealing activities, and the marijuana and cash that likely would be available to steal at his residence on the night of February 21-22, 2010. Clearly, someone provided this information to the Toronto Three, and this case is about whether that someone was Sam Tsega and, if so, the circumstances under which he provided that information. Evidence as to Sam Tsega’s knowledge about marijuana and dealing in marijuana is material to a central issue at this trial.

Is the proposed evidence discreditable to Sam Tsega?

[22] In this day and age, is smoking marijuana considered discreditable conduct? Our federal government is in the process of decriminalizing the use of marijuana. Surely the court can take judicial notice of the fact that marijuana use is as ordinary an event for many segments of our society as is having a beer, sipping a glass of wine, or having a pre-dinner martini. This may be particularly so with the younger generation. There are levels of discreditable conduct and, in the scheme of things, if smoking marijuana is considered discreditable, it is only marginally so.

[23] Is selling small amounts of marijuana to one’s peers or giving small amounts to one’s friends discreditable conduct? Yes. But again, in the greater scheme of things, the level of dealing in marijuana attributed to Mr. Tsega by Connor Buchanan and Garrett Butler was at the low end of drug trafficking. Connor Buchanan, who was with Mr. Tsega on a daily basis in 2009-2010, testified that, as far as he knew, Mr. Tsega never purchased more than a quarter pound at any given time. Phil Derick, one of Mr. Tsega’s suppliers, testified that he sold two ounces of marijuana to Mr. Tsega on approximately four occasions, at a price of $300 each time.

[24] The impression left by the evidence to date is that many of the young folks in the circle of friends around Michael Swan, Phil Derick, Tyler Buchanan, Connor Buchanan, Tyler Tanquay, Tyler Vergette, Garrett Butler, and Sam Tsega enjoyed smoking marijuana. Michael Swan and Phil Derick acted as main suppliers for this group of young adults; however, amongst themselves, the various friends might sell small quantities of marijuana or share their supply if someone was short. The evidence to date is that Mr. Tsega was a small drug dealer in the scheme of things. This is evidence of discreditable conduct, but significantly less discreditable than that attributed to Michael Swan and Phil Derick as major dealers in the Barrhaven community and in a completely different league from the alleged offence of murder that is the subject matter of the trial.

Does the probative value of the evidence outweigh its prejudicial effect?

[25] Prejudice can take two forms: moral prejudice and reasoning prejudice.

[26] Moral prejudice concerns the risk that an accused will be convicted not on the basis of the strength of the evidence relating to the offence charged but on the basis that the accused is a bad person deserving of punishment (Handy, at para. 139; R. v. T.B., 2009 ONCA 177, 95 O.R. (3d) 21, at para. 26). Moral prejudice is not a significant risk in a judge-alone trial. In any event, as suggested above, the discreditable conduct attributed to Mr. Tsega in the evidence in question is barely, if at all, discreditable in regard to the use of marijuana, and, in regard to the small-time sale of marijuana, is significantly less reprehensible than the offence with which Mr. Tsega is charged. As well, virtually all of the lay people who testified on behalf of the Crown acknowledged their use of marijuana and, in the case of Phil Derick, acknowledged being, in the months leading up to February 2010, a significant marijuana trafficker in Barrhaven. There is evidence that the victim, Michael Swan, was the largest known supplier of marijuana in Barrhaven. It is hard to see where any moral prejudice comes into play in the circumstances of this case.

[27] Reasoning prejudice involves the risk of confusing or distracting the fact-finder, the undue consumption of time in hearing evidence of limited probative value, and the unfairness done to the accused if opportunities to respond are limited. Again, these risks are minimized in a judge-alone trial. It is unlikely the judge will be confused or distracted by the evidence of discreditable conduct and, if she is, her reasons will be there for appellate review. In this case, there will be no undue consumption of time because whatever evidence was heard on the voir dire and ruled admissible will be assumed to be evidence in the trial proper. It does not need to be repeated. In terms of the need to respond to the evidence of discreditable conduct, Defence counsel had full opportunity to cross-examine all witnesses who referred to marijuana use and the sale of marijuana by Mr. Tsega. That evidence was left largely unchallenged.

[28] In summary, there is virtually no prejudice of any kind to be balanced out by the probative value of the evidence.

[29] In regard to probative value, this case is all about drugs and money – more particularly, marijuana and the money that can be gleaned from the sale of marijuana. It would do a disservice to the search for the truth and to an understanding of the context in which this murder occurred if evidence about the use and sale of marijuana by the murder victim, the three convicted murderers, and many of the Crown witnesses was admitted but similar evidence relating to the accused was excluded. This would hamper, not assist, the court in its task of rendering a fit and just verdict. Not admitting this evidence would mislead the court in regard to the relationships between the various parties, the discussions they had amongst themselves, and the activities they engaged in. It would remove an important factor that is part of the backdrop to the offence in question.

[30] The evidence of the Crown witnesses regarding Sam Tsega’s use of marijuana and sale of marijuana was consistent and unchallenged. Some of those witnesses were Mr. Tsega’s closest friends in the months leading up to Mr. Swan’s murder. They were in an excellent position to be aware of Mr. Tsega’s activities and their friendship is a factor suggesting they would not have had any reason to be untruthful in speaking of his activities. In providing this evidence, they also testified as to their own involvement with marijuana. The evidence bears some hallmarks of reliability.

[31] As a matter of logic and common sense, evidence that Mr. Tsega both used and sold marijuana makes more likely the proposition that he had knowledge of marijuana and marijuana dealing. It also makes more likely the proposition that this was a subject he may have discussed with others interested in this activity, as Connor Buchanan testified he and Mr. Tsega had done. This evidence increases the likelihood that Mr. Tsega may have spoken to Dylon Barnett, another marijuana user, about Michael Swan and the marijuana he sold. Finally, to the extent that the argument is made that Mr. Tsega had no possible motive to involve himself in the theft of marijuana from Michael Swan, evidence that Mr. Tsega was a regular marijuana user, and a dealer of marijuana in the same community as Mr. Swan, would assist to rebut any such argument.

Disposition

[32] Evidence regarding Sam Tsega’s use of marijuana and dealing in marijuana is admissible.

Aitken J.

Released: June 3, 2016