CITATION: R. v. Tsega, 2017 ONSC 2256
COURT FILE NO.: 11-RM2878
DATE: 2017/04/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SAM TSEGA
Accused
Mark Moors and Dallas Mack, for the Crown
Mark Ertel and Meaghan Thomas, for Mr. Tsega
HEARD: April 10, 2017
REASONS FOR JUDGMENT re sentence
Aitken J.
Nature of Proceedings
[1] On June 30, 2016, Sam Tsega was convicted of the manslaughter of Michael Swan. It is now my task to sentence Mr. Tsega in accordance with the principles of sentencing set out in the Criminal Code, R.S.C. 1985, c. C-46. That is not an easy task. On the one hand, we have the senseless death of Michael, who was only 19 years old at the time, and who was a much loved son, brother, and friend – a young man who brought joy to those around him and who had a bright future ahead of him. On the other hand, we have Sam Tsega, also a much loved son, brother, and friend, who was only 18 years old at the time and who, for some unexplained reason, made the horrible, out-of-character, decision to betray Michael – a decision which had such tragic consequences for Michael and his loved ones.
Message to Michael’s Family and Friends
[2] First, Mr. and Mrs. Swan, I want to express how very sorry I am for your loss. You have been living a parent’s worst nightmare for the last seven years, and the terrible events surrounding Michael’s death will always be with you. There is nothing anyone can do to lessen the shock and the grief that you, Alex, Kaitlyn, Tyler and Michael’s other friends and family members are experiencing.
[3] I also want to acknowledge how the criminal justice system has not met your needs to see those who were responsible for Michael’s death brought to justice as quickly and effectively as possible. It has taken more than seven years and three trials to prosecute Messrs. McLellan, Mullen, Barnett, and Tsega – an inordinately long period of time and a tortuous journey. There are many reasons for this lengthy delay – some relating to the complexity of criminal and evidence law, some relating to choices taken by either the Crown or the Defence, some relating to chronic problems associated with lack of resources within the criminal justice system, and some relating to events beyond anyone’s control. The delay has taken a very heavy toll on all of you, and for that, all of us who have worked on these cases feel very badly. No one has ever wanted to prolong or deepen your pain.
Victim Impact Statements
[4] Listening to the reading of the victim impact statements last Monday morning was one of the saddest experiences that I have had during my 20 years on the Bench. All of Michael’s loved ones wear their pain and anger on their sleeves, and none has any confidence that those emotions will ever dissipate. I understand that. Mr. Swan spoke of the utter grief that has consumed his family since Michael’s death, and the challenge faced by himself, his wife, and his son to support each other while struggling to survive each day. Mrs. Swan relived the last time she saw Michael, regretting that she did not receive his usual parting hug. She is haunted by thoughts of Michael’s last moments without her being there to comfort him. Alex spoke of how he had to grow up quickly and assume roles in the family that no brother should ever have to undertake. Kaitlyn mourned the loss of her best friend and soul mate, a loss that happened in a flash before her eyes. She and Tyler are profoundly traumatized by their experience in Michael’s bedroom that night, and they have struggled to move beyond it. The Buchanan family is devastated by Mr. Tsega’s betrayal of their trust and friendship – a betrayal that left Connor and Tyler feeling somehow responsible for Michael’s death. I commend all of you for having the courage and the commitment to express your feelings so openly. I thank you for your victim impact statements and assure you that I have taken them into account.
[5] As I said in my decision, I do not believe for a moment that Sam Tsega ever contemplated that the plan that he and the Toronto Three concocted to rob Michael of marijuana and cash would result in Michael’s death, and would lead to the unbearable pain Michael’s loved ones have experienced and continue to experience. Mr. Tsega should have foreseen that there was a risk of someone in the house being seriously hurt during the home invasion; but I don’t believe that, on the night of February 21, 2010, he had such insight.
Principles of Sentencing
[6] As Justice Watt, now on the Ontario Court of Appeal, so bluntly reminded us in R. v. Browne, [2002] O.J. No. 900, at para. 17:
The criminal law does not restore life. The objectives, principles and factors that govern the imposition of sentence are not meant to represent the value of the life that has been unlawfully taken. They are designed to reflect the moral blameworthiness of the person who commits an offence and the gravity of the offence, so far as the law is concerned, that he or she has committed.
[7] In the case of a homicide, the most pressing purposes of sentencing are the denunciation of the unlawful conduct of the perpetrators and the recognition of the terrible harm done to the victim’s family and community. Associated with this purpose is the desire to promote a sense of responsibility in offenders. Another important objective, though one subject to debate in regard to efficacy, is general deterrence. By that is meant, the deterrence of others from committing similar crimes. As to specific deterrence, I have no doubt that Mr. Tsega has been deterred from ever involving himself in something like this in the future just by the fact of Michael Swan’s death. In this vein, I do not believe that Mr. Tsega needs to be separated from society in order to adequately protect society because I do not perceive Mr. Tsega as an ongoing threat to society. For that reason, the sentencing objective of separating offenders from society for the protection of society does not come into play here.
[8] Another purpose of sentencing, which I am obliged to take into account, is the potential for rehabilitation of Mr. Tsega. The evidence at trial, and at the sentencing hearing, supports the conclusion that Mr. Tsega is capable of being rehabilitated as a contributing member of society. I will say more about this later.
[9] So the challenge that faces me is to arrive at a sentence that both expresses our collective abhorrence with the killing of Michael Swan, assigns proportionate blame to Mr. Tsega in all the circumstances of the case, but also promotes his successful reintegration into society when he is released from custody. I realize that the sentence I impose will appear inadequate to Michael’s loved ones and unnecessarily harsh to Sam Tsega’s loved ones. But I can only be guided by the sentencing principles laid out in the Criminal Code, as explained and applied in jurisprudence. My role is not to exact vengeance, nor is it to minimize responsibility for this tragedy.
Findings of Fact in the Judgment of June 30, 2016
[10] In my June 30, 2016 decision finding Mr. Tsega guilty of manslaughter, I described the home invasion perpetrated by the Toronto Three at the home of Michael Swan on the night of February 21-22, 2010: the goal of the Toronto Three to rob Michael of drugs and money, the shooting death of Michael during the course of the robbery and Michael’s unlawful confinement, the arrest of the Toronto Three on their return drive to Toronto, and the subsequent identification of Sam Tsega as the Ottawa connection who had enabled the Toronto Three to do the home invasion and robbery. I am not going to repeat the description I provided in my judgment. However, I will highlight some of my findings as they pertain to the role Mr. Tsega played in the unfolding of events and his proportionate culpability in the offences that occurred.
When Mr. Tsega was in Toronto late in 2009, he described Michael Swan and his drug-dealing activities to Mr. Barnett and Mr. McLellan and the three men discussed the possibility of doing a drug rip against Michael (para. 68).
Prior to the Toronto Three coming to Ottawa to rob Michael Swan, Mr. Tsega had provided them with information about Mr. Swan’s drug-dealing activities and the fact that he would be an easy target to rob (para. 69).
Prior to the Toronto Three coming to Ottawa, Mr. Tsega led Mr. Barnett to understand that, if Mr. Barnett and his cohorts met up with Mr. Tsega in Ottawa, Mr. Tsega would help them to rob Mr. Swan (para. 69).
When the Toronto Three arrived in Ottawa, Mr. Tsega escorted them to Mr. Swan’s home, to show them how to get there and to explain what and who they could expect to find in the home (para. 104).
Mr. Tsega provided the Toronto Three with a couple of sweaters, two pairs of gloves, two masks and a scarf to help the Toronto Three hide their identity during the home invasion (para. 85).
Mr. Tsega did not enter the Swan residence with the Toronto Three. He did not directly participate in the unlawful confinement of Michael and his friends, in threatening Michael and his friends, or in stealing marijuana, cash and other items from the home.
[11] The evidence was insufficient to allow me to conclude that:
Mr. Tsega had chosen February 21, 2010 as the date for the drug rip of Mr. Swan.
Mr. Tsega knew prior to the Toronto Three coming to Ottawa that they intended to rob Michael Swan that night.
Mr. Tsega benefitted in any fashion from the robbery by receiving a portion of the stolen drugs, money, or other items.
[12] As well, the evidence was insufficient to allow me to conclude, beyond a reasonable doubt, that Mr. Tsega was the moving or the driving force behind the home invasion, or that he was the “mastermind” of the home invasion. I summarized Mr. Tsega’s role in planning the home invasion to have been, at the least, “to float the idea to Mr. Barnett and Mr. McLellan; to provide the Toronto Three with all of the information they required regarding Mr. Swan’s drug dealing, his method of doing business, the absence of security measures, the layout of the Swan residence, and the individuals normally at the residence; to show the Toronto Three where the Swan residence was located; and to provide the Toronto Three with clothing to hide their identities” (para. 113). But what I cannot determine beyond a reasonable doubt is whether, once Mr. Barnett and Mr. McLellan knew about the possibility of robbing Michael Swan, it was one of them, or Mr. Tsega, who took the lead in pushing forward with plans to actually commit the robbery. What has been proven beyond a reasonable doubt, however, is that “but for” Mr. Tsega’s participation, this home invasion and killing of Mr. Swan would never have occurred.
Position of the Crown and the Defence
[13] Under s. 236 of the Criminal Code, every person who commits manslaughter is liable, where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years. This minimum sentence applies to Mr. Tsega as a party to the crime.
[14] The Crown seeks a sentence in the range of 14 to 16 years.
[15] The Defence seeks a sentence in the range of 6 to 8 years.
Level of Culpability
Jurisprudence
[16] Section 718.2(b) of the Criminal Code requires the court to take into account that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[17] The multiplicity of relevant factors impacting sentencing in manslaughter cases renders jurisprudence of limited assistance. No two cases have offenders and offences that are exactly the same so that the offenders should be given identical sentences. However, courts in this country have recognized some general ranges for the offences of this nature.
[18] It has been held that the usual range of sentence for aggravated manslaughter is in the range of 8 to 12 years (R. v. Hong, 2016 ONSC 2654, at para. 100; R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 82-83; R. v. Grattan, 2011 BCSC 217, at para. 38; R. v. Devaney, 2004 11337 (ON SC), [2004] O.T.C. 230 (S.C.), aff’d (2006), 2006 33666 (ON CA), 213 C.C.C. (3d) 264 (C.A.); R. v. Norman, [2005] O.J. No. 1073 (S.C.), at para. 81; R. v. Clarke (2003), 2003 28199 (ON CA), 172 O.A.C. 133 (C.A.). It has also been held that the usual range of sentence for home invasions runs between four and five years up to 11 to 13 years, depending on whether robbery, extortion, confinement, kidnapping, violence, or killing was involved (R. v. Wright (2006), 2006 40975 (ON CA), 83 O.R. (3d) 427 (C.A.), at para. 23; R. v. Bukhari, [2007] O.J. No. 5807, at para. 46). What is clear is that the range of sentence sought by the Crown, namely 14 to 16 years, is outside the range of sentence normally imposed in these cases – particularly where there are several mitigating factors.
[19] Crown and Defence counsel have referred me to numerous decisions regarding sentencing in manslaughter cases, and I have read all of them. They are listed in Appendix A. What can be gleaned from these cases is the following.
[20] The following factors justify sentences in the higher range:
The offender was the person who caused the death of the victim.
The offender was present when another offender was causing the death of the victim and/or participated in violence toward the victim.
The offender was the ringleader of the operation.
The home invasion/robbery was planned and premeditated.
The plan from the beginning was to inflict violence on the occupants of the home.
The perpetrators went to the home armed and ready to inflict violence.
The offender was the person who made sure that at least one of the perpetrators was armed with a gun.
Gratuitous violence was inflicted on the occupants of the home.
One or more of the occupants was left to die, with no assistance being offered by the perpetrators and with none of the perpetrators calling 911 or letting an occupant call 911.
The offender had a significant criminal record.
The offender committed the offence while on bail, probation, or parole.
The crime had a devastating effect on the victim’s family and friends.
[21] The following factors justify sentences at a lower range:
The offender was young when the offence was committed.
The offender had no criminal record.
The chances of the offender being rehabilitated were strong.
The offender did not actually participate in the home invasion.
The offender participated in the home invasion but was not present in the room when another perpetrator meted out violence against the victim or caused the victim’s death.
The offender had no subjective foresight of violence being inflicted on an occupant – but was convicted of manslaughter because the offender should have realized that violence was likely to occur.
Sentences for Co-accuseds
[22] In addition to this jurisprudence, it is relevant how Messrs. McLellan, Mullen, and Barnett were dealt with at the time of sentencing. Although Messrs. McLellan, Mullen, and Barnett were all convicted of murder, not manslaughter, and murder is a more serious offence than manslaughter, nevertheless, the roles those men played in the tragic events of February 21-22, 2010, and the sentences they received as a result, should be kept in mind when considering what sentence would be appropriate for the role played by Sam Tsega.
[23] Kristopher McLellan, the shooter, was found guilty of first degree murder and was sentenced to life in prison with no possibility of parole for 25 years.
[24] Kyle Mullen was found guilty of second degree murder and was sentenced to life in prison with no possibility of parole for 15 years. In arriving at a parole ineligibility period of 15 years, Justice Patrick Smith made the following observations:[^1]
Mr. Mullen had a criminal record for violent crime.
Mr. Mullen had procured the murder weapon and had provided it to Mr. McLellan.
The planning of the robbery took place over time, leaving Mr. Mullen ample time to resile from the plan.
The motivation was greed – greed for a relatively small amount of drugs, cash, and other items.
The death of Michael has devastated his family, friends and community.
Mr. Mullen prevented any steps from being taken to help Michael after he was shot and simply carried on with the robbery.
Mr. Mullen kept possession of the murder weapon and some of the proceeds of the robbery.
[25] Dylon Barnett was found guilty of second degree murder and was sentenced to life in prison with no possibility of parole for 12 years. In arriving at a parole ineligibility period of 12 years, Justice Rutherford, in an unreported decision, made the following observations:
Mr. Barnett entered the Swan residence armed with a loaded semi-automatic pistol.
After Mr. McLellan had shot Michael, Mr. Barnett and his two accomplices:
left Michael unattended on the floor and prevented anyone from attending to him;
rounded up and confined the other residents in the house;
ransacked the residence looking for drugs and money; and
stole marijuana, cash, cell phones, and other electronic equipment.
Mr. Barnett was convicted of second degree murder on the following basis:
Messrs. Barnett, McLellan, and Mullen had formed the common intention to rob Michael Swan;
Mr. McLellan intentionally killed Michael while carrying out the common intention;
Mr. Barnett knew, subjectively, that it was likely that one of the group would intentionally kill someone in the course of the robbery.
[26] Of relevance, as well, was that Mr. Barnett had no criminal record.
[27] In sentencing Mr. Barnett, Justice Rutherford stated:
The nature of Barnett’s offence then, is that he was involved in planning and participating in robbing Michael Swan, knowing in his own mind that an intentional killing by one of his group was a likely or probable event in carrying out the plan. I observe that although he was not found guilty of first degree murder with its mandatory parole ineligibility period of 25 years, nevertheless, in light of the finding of Barnett’s subjective foresight of an intentional killing, his offence is a close cousin to a planned and deliberate murder, and is highly reprehensible and morally blameworthy.
… this is an aggravated case. A planned home invasion and robbery, carried out with the use of firearms, and with the appreciation that an intentional killing is likely to occur amounts to a seriously aggravated case, particularly when an intentional killing does in fact occur.
[28] What differentiates Mr. Tsega from the Toronto Three is my finding that the Crown failed to prove beyond a reasonable doubt that Mr. Tsega subjectively knew that the murder of someone was a probable consequence of the home invasion, robbery, and extortion. I was unable to find that Mr. Tsega had the subjective foresight of the likelihood that, during the home invasion and confinement of Michael Swan and his friends, someone would kill a person, either with the intention to cause that person’s death, or, with the intention to cause that person bodily harm that the assailant knew was likely to cause that person’s death, and the assailant was reckless whether death ensued or not. What the Crown did prove beyond a reasonable doubt was that Mr. Tsega ought to have known or foreseen that there would be a risk of harm to another as a result of carrying out the common intention of robbing Mr. Swan during the course of a home invasion.
[29] Based on this analysis, when comparing Mr. Tsega’s culpability to that of Mr. Mullen and Mr. Barnett, I conclude that Mr. Tsega’s culpability was less for the following reasons:
Mr. Tsega was not in attendance at the home invasion and had no ability to control events as they unfolded in the Swan residence.
Mr. Tsega played no role in acquiring firearms for the night’s activities, as Mr. Mullen had done, and he did not actually use a firearm in the course of the home invasion, as Mr. McLellan and Mr. Barnett had done.
Mr. Tsega did not have the subjective foresight of the likelihood that, during the home invasion and confinement of Michael Swan and his friends, someone would kill a person, either with the intention to cause that person’s death, or, with the intention to cause that person bodily harm that the assailant knew was likely to cause that person’s death, and the assailant would be reckless whether death ensued or not. Courts have found that both Mr. Mullen and Mr. Barnett had that subjective knowledge.
Mr. Tsega did not prevent Michael’s friends from helping him after he was shot. He did not fail to call 911, or prevent others from calling 911, as the Toronto Three had done. He did not blithely carry on with the confinement, extortion, and robbery while Mr. Swan lay dying on the floor. The Toronto Three demonstrated this callous behaviour.
[30] I realize that Michael’s family and friends likely consider Sam Tsega the most culpable of the four men responsible for Michael’s death, because he was the one who betrayed Michael and the Barrhaven community. That betrayal is a significant aggravating feature, as is the fact that “but for” Mr. Tsega, the home invasion and the killing of Mr. Swan would not have occurred. But Mr. Tsega has not been convicted of murder, and the other three have.
[31] This leads me to a consideration of the aggravating factors in Mr. Tsega’s case.
Aggravating Factors
[32] Under s. 348.1 of the Criminal Code, if a person is convicted of break and entry, robbery, extortion, or unlawful confinement in relation to a dwelling-house, the court imposing the sentence on the person must consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence knew that or was reckless as to whether the dwelling-house was occupied, and used violence or threats of violence to a person or property. This is an indication that Parliament considers home invasions very serious offences, particularly where, as here, the invaders knew or expected someone would be home and anticipated using violence or the threat of violence to get what they wanted.
[33] Mr. Tsega expected Mr. Swan’s residence to be occupied in the wee hours of February 22, 2010. He anticipated that not only Michael Swan, but possibly his girlfriend, Kaitlyn, and other friends, could be in the house. He also anticipated that threats would likely be required to get Michael to divulge the location of his drugs and money. This is a serious aggravating factor. But it is slightly less serious an aggravating factor than it would be if he actually foresaw that violence would be used against the occupants of the house.
[34] There are other aggravating factors:
The only possible motive for this offence was greed – the desire to get some of Michael Swan’s marijuana and money.
Mr. Tsega was not in need of money to survive – he lived with his mother in a nice, middle-income, suburban community. He was provided with the necessities of life. He had a part-time job.
The home invasion was not a spur of the moment event – it had been discussed for months. Therefore, there was a level of planning and deliberation in regard to the robbery.
Mr. Tsega volunteered information to Mr. Barnett and Mr. McLellan regarding the availability of marijuana and cash at Michael’s residence and, in doing so, set things in motion. The home invasion, robbery, and killing of Michael Swan would not have happened without Mr. Tsega starting the ball rolling by sharing information.
At any time prior to the home invasion, and even once the Toronto Three were in Ottawa, Mr. Tsega had the power to put the brakes on the operation. He could have declined to show the Toronto Three the location of the Swan residence. He could have told the Toronto Three something that would have undermined the operation or made it futile. He did not have to come up with clothing to help the Toronto Three. And even after the Toronto Three had left the Jackson home en route to the Swan residence, Mr. Tsega could have sought help from Joshua Jackson, could have warned Michael Swan, or could have called the police.
In participating in this offence as he did, Mr. Tsega betrayed his friendships with Connor Buchanan, Tyler Buchanan, Michael Swan, Kaitlyn Scott, and others. He betrayed their trust and, in Michael Swan’s case, his hospitality and generosity.
The killing of Michael Swan has caused immeasurable grief and anguish to his family and friends.
[35] These aggravating factors call for a lengthy term of imprisonment.
Mitigating Factors
[36] There are some mitigating factors that balance the aggravating factors:
Mr. Tsega was 18 years of age[^2] at the time of Michael Swan’s murder and he is now 25 years old.
Mr. Tsega has no criminal record.
As a result of his being hit in the left frontal lobe of his head by a hockey puck when he was 12 years old, Mr. Tsega has some lasting deficits as evidenced by three neuropsychological assessments conducted at CHEO in 2004, 2006, and 2009. The summary at the end of the most recent report stated:
The results of the current assessment are consistent with the results of two previous assessments and reflect sequelae to a left frontal brain injury. More specifically, Sam continues to demonstrate specific areas of difficulty in executive functioning as well as in verbal functioning, particularly in the area of verbal memory and reading comprehension, and in processing speed. This represents a stable pattern of functioning post-injury, which is in significant contrast to his functioning prior to the accident.
Mr. Tsega was naïve and inexperienced in terms of what to expect if three masked men enter a home in the middle of the night, with loaded firearms, and confine and extort the residents. He thought the robbery would be simple and no one would be seriously hurt. He made a very foolish decision to be involved in such a risky endeavour, but I cannot find that his decision was based on malice.
Mr. Tsega was on bail from December 2, 2010 to July 7, 2016 – a period of five and a half years. While on bail, Mr. Tsega was not charged with any other criminal offences, and he abided by all of the terms of his interim release. This is a strong indication that Mr. Tsega does not currently pose a threat to society. His adherence to his bail conditions is an important mitigating factor.
While on bail, Mr. Tsega was subject to numerous bail conditions which, in addition to the usual standard provisions, included the following conditions:
That he reside at his mother’s residence in Barrhaven;
That he not consume alcohol or any illicit drugs;
That he not leave Ottawa for any reason (aside from a two day period in April, 2011);
That he not be away from his residence except for the purposes of employment or volunteer work approved by his mother; except in the presence of one of his sureties; except for court, legal and medical appointments, or education purposes; or (after September 13, 2013) except for any other purpose approved by his surety Tim Korosi;
That he not possess any cellphones;
That (after September 13, 2013) he not be away from his residence between the hours of 11:45 p.m. and 6 a.m. unless in the presence of one of his sureties.
These conditions placed some restriction on Mr. Tsega’s liberty, but he was still able to go about a relatively normal life. He attended school and then university. He played organized sports. He made new friends. He obtained employment. He was active at his church. He was active doing volunteer activities. He was able to attend medical, dental, and legal appointments. As long as Mr. Korosi approved, he could engage in other activities. After September 13, 2013, he was even able to accompany the Carleton University Lacrosse Team during the 2013-2014 season to scheduled games outside of Ottawa. This was not a situation where Mr. Tsega was subject to strict house arrest. Consequently, the existence of these minor restrictions on Mr. Tsega’s liberty play a very minimal mitigating role.
While on bail, Mr. Tsega attended the Adult High School to upgrade his marks and then completed six terms in a Bachelor of Arts program at Carleton University. Carleton University expelled Mr. Tsega when it became aware that the criminal charges against him had been upgraded to first degree murder. Considering the marks that Mr. Tsega received while at Carleton, there is no reason to doubt his ability to complete his university degree in the future.
Mr. Tsega has the unfailing support of his mother and his siblings and, as is apparent from the 25 character references filed on his behalf, has the support of a much larger community.
During high school, Mr. Tsega worked at the school cafeteria and subsequently, at the time of this offence, he was working at a sporting retail store. He has been described as a hard and diligent worker.
Mr. Tsega has been active at his church and, for approximately two years prior to his incarceration in July 2016, had been volunteering at the Jericho Ministries – a religious outreach program for disadvantaged individuals in downtown Ottawa.
[37] I have read all of the character references submitted for Sam Tsega. They are from family members, church leaders, adults with whom Mr. Tsega has done volunteer work, former lacrosse coaches, former teammates, friends, and neighbours. All of these individuals know that Mr. Tsega has been convicted of manslaughter and that he is awaiting sentence. There are common themes that run through these letters. Participating in the killing of another human being is considered something totally out-of-character for Mr. Tsega. He is uniformly described as being kind, thoughtful, respectful, considerate, and compassionate. Many remarked on his sense of humour and his ability to bring joy to others. He was described as being particularly caring with vulnerable people. Those who observed him over the years when he has been in the criminal justice system describe him as being resilient and positive about what still may be possible for him in the future. He is described as being motivated and hardworking – whether in school or on the sports field.
[38] These character letters attest to the fact that Mr. Tsega is very much capable of rehabilitation and capable of returning to society as a productive, law-abiding, citizen.
[39] At the sentencing hearing, when asked if he had anything to say, Mr. Tsega apologized to Michael’s loved ones for the role he played in Michael’s death. For Michael’s family and friends, this expression of remorse was too little too late. An expression of remorse can be a mitigating factor on sentencing. It must be sincere. And usually the earlier it occurs during the course of proceedings, the more mitigating weight it carries.
[40] In this case, where the expression of remorse or regret, even if sincere, happens seven years after Michael’s death, I simply cannot assign it much mitigating weight.
[41] I do want to comment on the Crown’s assertion that, in several of the cases to which I was referred by Defence counsel, the accused had pled guilty at an early stage and that explained why the sentences imposed were at the lower range. In those cases, the guilty plea was a mitigating factor. Mr. Tsega did not plead guilty at any stage of these proceedings – as was his right. That, however, can never be used as an aggravating factor. I note that, for many of the years during which these proceedings were on-going, Mr. Tsega was facing a charge of first or second degree murder and, ultimately, he was convicted of the lesser offence of manslaughter. One can understand why a guilty plea was not forthcoming in regard to a murder charge.
Length of Sentence
[42] Mr. Tsega, taking all of these factors into account, I conclude that a fair and just sentence for your role in the death of Michael Swan is a term of imprisonment of nine years.
Credit for Pre-sentence Custody
[43] The Truth in Sentencing Act, S.C. 2009, c. 29, came into force on February 22, 2010. It amended s. 719(3) of the Criminal Code to provide:
719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
[44] In R. v. R.S., 2015 ONCA 291, 20 C.R. (7th) 336, the Ontario Court of Appeal held that these provisions in the Truth in Sentencing Act applied to offenders whose offences were committed after the Truth in Sentencing Act came into effect. For offenders whose offences occurred prior to the coming into force of this legislation, the old sentencing regime applied pursuant to which offenders commonly received two for one credit for pre-sentence custody.
[45] Section 6 of the Interpretation Act, R.S.C. 1985, c. I-21, provides:
6(1) Where an enactment is expressed to come into force on a particular day, it shall be construed as coming into force on the expiration of the previous day …
[46] Consequently, the Truth in Sentencing Act, came into force at midnight on February 21, 2010. I reject the argument floated by Defence counsel that, because the legislation would not have come into effect on the West Coast until three hours after it purportedly came into effect in Ontario, it should not be found to have come into effect in Ontario until 3 a.m. February 22, 2010 – after the killing of Michael Swan.[^3]
[47] The following findings of fact relate to this issue:
The Toronto Three entered the house at 4139 Moodie Drive (“the Swan residence”) shortly after midnight on February 22, 2010.
Michael Swan was killed very early in the morning of February 22, 2010.
Although prior to February 22, 2010 and, more specifically, during the evening of February 21, 2010, Sam Tsega had discussed with the Toronto Three the possibility of robbing Michael Swan and had taken steps to help the Toronto Three prepare for the home invasion and robbery, the Toronto Three took no steps to execute the home invasion and robbery until February 22, 2010.
[48] Defence counsel argues that the manslaughter of Michael Swan was a continuing offence that started on February 21, 2010 and continued into February 22, 2010 and that, as a result, Mr. Tsega is entitled to the benefit of the sentencing regime that existed prior to the coming into effect of the Truth in Sentencing Act. I reject this submission. The killing of Michael Swan, which is the foundation of the manslaughter conviction of Mr. Tsega, occurred on February 22, 2010. That conviction is based on Michael being killed during the course of a home invasion, robbery, and extortion. All of the elements of the offence of manslaughter occurred on February 22, 2010. Mr. Tsega was found to be party to the offence due to his having formed a common intention with the Toronto Three to rob Michael Swan, but their common intention was not put into motion until the Toronto Three entered the Swan residence on February 22, 2010.
[49] Since R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, it is generally accepted that offenders should receive credit for pre-sentence custody at the rate of 1.5 to one in situations where it is anticipated the offender will likely qualify for early release. There is no evidence to suggest that Mr. Tsega will likely not be entitled to the benefit of early release and parole. Therefore, he should receive credit of 516 days, or 17 months, for the 344 days he has spent in pre-sentence custody.
Credit for Strict Bail Conditions
[50] In R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), Rosenberg J.A. stated, at para. 37:
In summary, credit for pre-trial bail conditions should be approached in the following manner:
Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.
Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
[51] The time during which an offender is subject to strict pre-sentence bail conditions cannot count as part of the period of a minimum sentence mandated under the Criminal Code (R. v. Panday, 2007 ONCA 598, 87 O.R. (3d) 1).
[52] As indicated above, the limited restrictions on Mr. Tsega’s liberty during the period when he was on bail were not particularly harsh, and there is no evidence that they caused Mr. Tsega particular hardship. I am not inclined to allow any specific deduction from his sentence to take into account what, granted, was a very lengthy period during which he was subject to bail conditions. Instead, I have considered the lengthy period of bail, and Mr. Tsega’s adherence to bail conditions over that period of time, as mitigating factors tending to reduce Mr. Tsega’s overall period of incarceration.[^4]
Disposition
[53] Mr. Tsega, I am imposing a sentence of nine years. You will receive credit of 17 months for pre-sentence custody. This means that you have seven years and seven months remaining in your sentence.
[54] In addition, you will be required to provide a DNA sample under s. 487.051 of the Criminal Code and you will be subject to an order under s. 109(1) of the Criminal Code prohibiting you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, ammunition or explosive substance for life, as set out in that subsection.
[55] Finally, I say to all of you so devastated by the terrible events we have had to deal with in this trial, I wish for you hope in the possibility of moving forward so that this tragedy does not continue to define your lives.
Aitken J.
Released: April 13, 2017
Appendix A
R. v. Araya, 2015 ONCA 854, 344 O.A.C. 36
R. v. Belcourt (sub nom R. v. A.J.B.), 2012 BCSC 1844
R. v. Best, 2005 NSSC 199, 234 N.S.R. (2d) 344
R. v. Borde (sub nom R. v. Q.B.) (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.)
R. v. Browne, [2002] O.J. No. 900, 2002 CarswellOnt 6195 (S.C.)
R. v. Bukhari, [2007] O.J. No. 5807, 2007 CarswellOnt 9306 (S.C.)
R. v. Chretien, [2009] O.J. No. 2578, 2009 CarswellOnt 3611 (S.C.)
R. v. Dourhnou, 2015 ONSC 839
R. v. Grattan (sub nom R. v. R.H.G.), 2011 BCSC 217
R. v. Hong, 2016 ONSC 2654
R. v. Johnson, 2013 ONSC 4217
R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191
R. v. Martinez, 2015 BCSC 653
R. v. Panday, 2007 ONCA 598, 87 O.R. (3d) 1
R. v. Peynado, 2011 BCCA 524, 314 B.C.A.C. 156
R. v. Phillips, 2008 ONCA 688
R. v. Shi, 2015 ONCA 646
R. v. Yusuf, 2012 ONSC 2421
CITATION: R. v. Tsega, 2017 ONSC 2256
COURT FILE NO.: 11-RM2878
DATE: 2017/04/13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
SAM TSEGA
Accused
REASONS FOR JUDGMENT RE SENTENCE
Aitken J.
Released: April 13, 2017
[^1]: R. v. Mullen, 2015 ONSC 673. [^2]: In the pre-sentence report, it states that Mr. Tsega’s date of birth is January 9, 1991; however, in other records, his date of birth is stated as being September 1, 1991. I am assuming September 1st is the accurate day. [^3]: See R. v. Logan, [1957] 3 W.L.R. 335 (Ct. Mart. App.Ct.). [^4]: See also R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 1, at paras. 23-38; R. v. Yusuf, 2012 ONSC 2421, at para. 38; R. v. Cioppa, 2013 ONSC 1242, at para. 34.