COURT FILE NO.: 11-1878
DATE: 2021/06/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Crown
– and –
Sam Tsega
Defendant
Dallas Mack and David Rodgers for the Crown
Solomon Friedman and Tasha Bobrovitz for the defendant
HEARD: May 5, 2021
reasons for sentence
S. Gomery J.:
[1] On January 29, 2021, I found Sam Tsega guilty of the manslaughter of Michael Swan. Today he must be sentenced.
The circumstances of the offence
[2] In the early morning hours of February 22, 2010, Kristopher McLellan, Dylon Barnett and Kyle Mullen broke into a house at 2139 Moodie Drive (the “Moodie Drive house”) in Barrhaven, a suburb of Ottawa. Mr. Swan, who was 19 years old at the time, shared the house with two other young men. On that particular night, Mr. Swan was watching an Olympic hockey game in his bedroom with his girlfriend Kaitlyn Scott and his friend Tyler Tanguay. Mr. McLellan, Mr. Barnett and Mr. Mullen had driven from Toronto to Barrhaven for the purpose of robbing Mr. Swan. They did not know him but they believed that he would have a significant amount of marijuana or cash on hand.
[3] As they entered the Moodie Drive house through an unlocked backdoor, two of the three men were armed: Mr. Barnett carried his own handgun and Mr. McLellan carried a Sig Sauer that Mr. Mullen had brought from Toronto. Mr. Mullen picked up a bat he found as they went upstairs. They entered Mr. Swan’s bedroom and told Mr. Swan, Ms. Scott and Mr. Tanguay to get on the floor. They did, but then Mr. Swan made an unexpected movement, and Mr. McLellan shot him fatally through the shoulder at close range.
[4] Mr. Barnett, Mr. McLellan and Mr. Mullen then confined Ms. Scott, Mr. Tanguay and Mr. Swan’s two housemates in a spare bedroom as Mr. Swan lay dying. They searched the upstairs of the house for drugs, money and electronics, and then fled in an SUV with roughly 2000 grams of marijuana, $3300 in cash, and some electronics. Police tracked them using the signal of one of the cellphones they had stolen, and they were arrested on their way back to Toronto.
[5] All three men have since been convicted for their role in the home invasion and killing of Mr. Swan. Mr. McLellan and Mr. Barnett were respectively found guilty of first-degree and second-degree murder and sentenced to life in prison with no eligibility for parole for 25 years, in Mr. McLellan’s case, and no eligibility for parole for 12 years, in Mr. Barnett’s case. After Mr. Mullen’s conviction for second-degree murder was set aside by the Court of Appeal, he pleaded guilty to manslaughter and received a sentence of almost twelve years.
[6] Mr. Tsega was not present in the Moodie Drive house during the home invasion. It would not have taken place, however, without his involvement and assistance.
[7] Mr. Tsega knew Mr. Swan, because they had both attended the same high school in Barrhaven and had common friends. Mr. Tsega had purchased marijuana from Mr. Swan and had attended a party at the Moodie Drive house. Mr. Tsega knew Mr. Barnett and Mr. McLellan from the time he lived in Toronto prior to moving to Barrhaven when he was eleven. He and Mr. Barnett had been friends and kept in touch.
[8] While he was visiting Toronto over the Christmas holidays in December 2009, Mr. Tsega was partying with Mr. Barnett and Mr. McLellan and he told them that Mr. Swan had sold him the drugs that they were smoking. Mr. Barnett casually suggested robbing Mr. Swan and Mr. Tsega mentioned that he had been robbed of $20,000 on a previous occasion. No plans were made at the time. In the weeks that followed, however, Mr. Barnett and Mr. McLellan agreed that they should travel to Barrhaven to rob Mr. Swan. To this end, they recruited Mr. Mullen. Mr. Tsega was not involved in this planning or even aware of it.
[9] On February 21st, 2010, Mr. Barnett told Mr. Tsega that he and Mr. McLellan were driving to Barrhaven that evening. Mr. Tsega thought that they were coming to party and ordered pizza. When they arrived and he interacted with Mr. Barnett, Mr. McLellan and Mr. Mullen, however, he realized that they had other plans. Mr. Tsega was worried that a neighbour would see the SUV and tried to dissuade them from entering his house. He relented and allowed them to come inside. While in Mr. Tsega’s bedroom, one or more of the men picked out some dark clothing. Mr. Barnett then told Mr. Tsega to show them where Mr. Swan lived. When Mr. Tsega asked why, Mr. Barnett did not answer. Instead of asking any other questions, Mr. Tsega got into their SUV and drove with the three men to the Moodie Drive house, based on his directions. After he had shown them where the house was, Mr. Tsega was driven home and dropped off. Mr. Barnett, Mr. McLellan and Mr. Mullen then turned around and drove back to the Moodie Drive house to carry out the home invasion.
[10] Mr. Tsega did not know that Mr. Barnett and Mr. Mullen carried handguns when he met with them that evening and there is no evidence that he expected to share in any proceeds from the home invasion. I found, however, that he knew on February 21st, 2010 that the three men from Toronto intended to break into the Moodie Drive house to obtain drugs and/or money, and that he knew or was willfully blind to the fact that this would involve a confrontation with Mr. Swan or other people in the house. I further found that, in the circumstances, Mr. Tsega reasonably should have understood that someone might get seriously hurt or even killed. That is in fact what happened. Despite this, Mr. Tsega chose to assist the robbers by directing them to the Moodie Drive house. As a result, he is guilty of manslaughter.
The objectives and principles of sentencing
[11] Section 718 of the Criminal Code (the “Code”) states that the fundamental purpose of sentencing is “to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society”. This purpose is accomplished by imposing “just sanctions”. The purposes of such sanctions are:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[12] The first four objectives — denunciation, deterrence, public safety and rehabilitation — are usually the primary focus of sentencing. When someone is killed in the course of a crime, the goals of denunciation and deterrence are generally paramount and the goal of rehabilitation is subordinate. As the Court of Appeal for Ontario stated in R. v. Jiwa, 2012 ONCA 532, 295 O.A.C. 180, at paras. 27-28, however, this is not a blanket rule. The paramount objective or objectives in sentencing depend on the circumstances of the case. As the Supreme Court of Canada noted in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 45, “a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending”.
[13] The objective of providing reparations for harm done to victims or the community has received greater attention over the past few decades. This is reflected in the adoption of the Canadian Victims Bill of Rights, 1995, SC 2015, c 13, s 2, and in s. 722 of the Code. In determining a sentence, a judge must consider any victim impact statement “describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim” (s. 722(1)), and the court may consider “any other evidence concerning any victim of the offence” (s. 722(9)).
[14] Taking into account the impact of an offence on its victims does not mean, though, that a sentence should be used to enact revenge. Using sentencing as a tool for revenge is antithetical to the purposes of protecting society, promoting respect for the law, and maintaining a just, peaceful and safe society. A sentence “is designed to protect the public, not to abate its anger at a particular crime”: R. v. Atkins, 1988 CanLII 201 (NL CA), [1988] N.J. No. 57, at para. 33 (NFLD C.A.). The Supreme Court has held that vengeance is “an uncalibrated act” that has “no role to play in a civilized system of sentencing”: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 80. Although a sentence should reflect the moral culpability of an offender, it may not be used “to seek cold and calculated vengeance upon the accused for the benefit of society and the benefit of the victim”: R. v. Lerno (2004), 2004 CanLII 11097 (ON CA), 185 C.C.C. (3d) 442 (Ont. C.A.), at paras. 7-8.
[15] The final objective of sentencing at s. 718(f) is assisting an offender in understanding why what they did was wrong, so that they take responsibility for their role in the offence and the harm that it caused. This makes rehabilitation more likely and reduces the risk of reoffending. It inspires confidence that our justice system is working as it should.
[16] Various sentencing principles flow from these objectives. A judge should impose a sentence that is proportionate both to the gravity of the offence and to the degree of responsibility of the offender (s. 718.1). A judge should determine an appropriate sentence by taking into account aggravating or mitigating circumstances relating to the offence or the offender (s. 718.2(a)), and by considering sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)). This last principle is known as the “parity principle”. Finally, the judge must consider whether there are less restrictive sanctions than prison that are reasonable in the circumstances and, if so, make use of them (ss. 718.2(d) and (e)).
The parties’ positions on sentence
[17] Section 236 of the Criminal Code provides that manslaughter is an indictable offence. A person who commits manslaughter may be liable to a sentence up to life in prison. Pursuant to s. 236(a), a mandatory minimum punishment of four years of imprisonment applies “where a firearm is used in the commission of the offence”.
[18] The Crown seeks a sentence of eight years. It contends that the four-year mandatory minimum sentence applies. Although it agrees that Mr. Tsega should get credit for time he has already served, it argues that the total credit is one year and eight months pursuant to the Truth in Sentencing Act, S.C. 2009, c. 29 (the “TSA”). The Crown opposes any reduction of sentence to reflect the nine and a half years that Mr. Tsega spent on conditional release. Based on the Crown’s submissions, Mr. Tsega would serve another 6 years and four months in jail.
[19] The defence seeks a sentence of three years of custodial time and three years of conditional release. It contends that neither s. 236(a) nor the TSA applies, and it seeks a reduction of sentence on account of the time Mr. Tsega spent on bail. If I accept the defence’s sentencing submissions, Mr. Tsega would not serve any more time in prison unless he breached conditions over the next three years.
Does the mandatory minimum in s. 236(a) apply?
[20] The Crown contends that s. 236(a) applies because a firearm was used to kill Mr. Swan. The defence argues that it does not, because Mr. Tsega did not know that the perpetrators of the home invasion were armed.
[21] The Crown relies on R. v. Kwakye, 2013 ONSC 96 (“Kwakye ONSC”), varied 2015 ONCA 108 (“Kwakye ONCA”). In Kwakye, the accused knew that the person who would carry out a robbery would be carrying a firearm; it was, in fact, his idea that he should be armed. The trial judge found that s. 236(a) applied, but did not explain his reasoning, because he thought that it was obvious on the wording of s. 236(a) and because he had already decided that an appropriate sentence in that case would be longer than four years: Kwakye ONSC, at para. 13.
[22] Justice Molloy took a different approach in R. v. Henry, 2015 ONSC 3905. She began by noting that the Supreme Court has cautioned that mandatory minimum sentences may result in unjust and unduly harsh sanctions. They are a “blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range”: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 44. In R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 22, the Supreme Court observed that mandatory minimums may prevent courts from applying the parity principle and admonished judges to interpret mandatory minimum provisions in a way that “does not offend the integrity of the criminal justice system”.
[23] Based on these principles and taking into account the objectives of sentencing, Molloy J. determined that s. 236(a) did not apply in a situation where the offender had no knowledge that his co-conspirator was armed. She explained her reasoning as follows, at para. 80:
I accept that mandatory minimum sentences serve to address pressing social problems by focusing on the sentencing principles of deterrence, denunciation and retribution. However, if an individual has no knowledge that a gun is going to be used, or that a gun is even present, during the commission of an offence, I do not see how imposing a mandatory sentence can further any of these principles of sentencing. You cannot deter a person from doing something he knows nothing about. Nor can you fairly denounce him for a specific aspect of the circumstances of an offence about which he had no knowledge and over which he had no control. Likewise, how can retribution be just if the individual is wholly ignorant of the circumstance for which he is being given additional punishment? You can fairly punish the offender for what he did know and what he did do, but there can be no justification for punishing him for something he did not do himself and about which he knew nothing.
[24] I agree with and adopt this principled reasoning.
[25] The Crown argues that, even if I accept the reasoning in Henry, the mandatory minimum should apply because I should find that Mr. Tsega was willfully blind to the fact that firearms would be used during the home invasion. It relies on R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411. In Briscoe, the Supreme Court of Canada held that a judge must consider whether an accused was willfully blind to the possibility that a victim might be killed where there is evidence that he had a “strong, well-founded suspicion” that this might occur: at para. 25.
[26] The problem with the Crown’s argument is that there is no evidentiary basis to find that Mr. Tsega had such a suspicion. There was no evidence at trial that Mr. Tsega knew that Mr. Barnett owned a gun. He had never met Mr. Mullen before that night and knew nothing about him. There was no evidence that Mr. Tsega was told about the guns that evening or saw them in the possession of Mr. Barnett or Mr. Mullen. He was not in the SUV when Mr. Barnett got out of it carrying his firearm and Mr. Mullen gave his Sig Sauer to Mr. McLellan, just before they broke into the Moodie Drive house.
[27] In these circumstances, I cannot find that Mr. Tsega was willfully blind to the possibility that guns would be used in the commission of the robbery. Based on the reasoning in Henry, since Mr. Tsega did not know that anyone was armed on February 21, 2010, the mandatory minimum at s. 236(a) does not apply.
What is the range of sentencing in similar cases?
[28] In most cases, a lengthy sentence is imposed for the offence of manslaughter “to reflect society’s concern for the sanctity of life”: R. v. MacFarlane, 2012 ONCA 82, 288 O.A.C. 114, at para. 8. Not every act that results in criminal liability for someone’s death carries with it the same degree of moral culpability, however. The circumstances of each case must be assessed. As noted in R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 48-49, because manslaughter can occur in a wide variety of circumstances, “the sentence can be and is tailored to suit the degree of moral fault of the offender”.
[29] In keeping with the parity principle, I must therefore consider what sentences have been imposed in cases similar to this one.
[30] The Crown starts from the premise that I should impose a sentence consistent with the sentences given to the other offenders involved in the home invasion. It contends that Mr. Tsega bears equivalent or greater moral culpability because, in directing the home invaders to Mr. Swan’s house, Mr. Tsega betrayed his friends and the Barrhaven community.
[31] I reject this submission. If accepted, this argument would elevate Mr. Tsega’s personal relationship with the victim above any other relevant consideration. On any objective analysis, Mr. Mullen, Mr. Barnett and Mr. McLellan bear significantly more responsibility for what happened at the Moodie Drive house than Mr. Tsega. Mr. Tsega did not actively plan to rob Mr. Swan. He did not put on a mask, break into the house, and storm into Mr. Swan’s room armed with a gun (or, in Mr. Mullen’s case, a baseball bat). He did not kill Mr. Swan, or forcibly confine the other occupants of the house, or rob them of their belongings.
[32] The Crown otherwise relies on cases, most of them involving home invasions, where the sentences imposed have ranged from six to thirteen years: Kwakye; R. v. Araya, 2015 ONCA 854, 344 O.A.C. 36; R. v. Martinez, 2015 BCSC 653; R. v. Peynado, 2011 BCCA 524, 314 B.C.A.C. 156; R. v. Hong, 2016 ONSC 2654; R. v. Dourhnou, 2015 ONSC 839; R. v. Carr, 2018 QCCS 1665; R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191; and R. v. Grattan, 2011 BCSC 217.
[33] These cases are distinct from this one in a key respect. In almost every one of them, the offender knew that someone else had a firearm. This had an important impact on the sentences imposed. The mandatory minimum in s. 236(a) operated as a floor, and even a case which had few aggravating factors merited at least a four-year sentence. This makes sense because, even without the mandatory minimum, those offenders who knew that a gun would be used during a robbery or home invasion knew or should have known that it might be used to injure or kill someone. They accordingly bore more blame when this happened.
[34] Most of these cases are also distinguishable for other reasons:
• In Jones-Solomon, the offender drove a group of men to a planned home invasion and participated in beating the victim.
• In Hong, the offender hit the victim on the head with a baseball bat, causing fatal injuries.
• In Peynado, the offender conceived of a home invasion, recruited two other men to assist him, and carried a weapon during the robbery.
• Although the offender in Martinez did not plan a home invasion or kill the victim, he also carried a weapon. A large stash of weapons found in his home was considered by the judge to be an aggravating factor.
• In Grattan, the offender participated in a violent home invasion where two people were shot, one fatally. Grattan was wearing an armoured vest during the home invasion and, after hearing the first shot, did not leave the scene. He was therefore aware that the shooter had a gun by the time it was used to kill someone.
[35] The Crown also cites Carr as an example of a case where a significant penitentiary sentence was imposed for manslaughter. In that case, the offender was the driver of a vehicle from which shots were fired by another person. It is not clear whether he knew that the shooter had a firearm prior to the shooting. Carr pleaded guilty and received a sentence of eight years. The facts in Carr are unfortunately unclear and so it is difficult to compare them to the facts in this case.
[36] Two cases relied on by the Crown, Dourhnou and Kwakye, bear some similarity to the circumstances in this case.
[37] In Dourhnou, the offender was not actively involved in a home invasion. He was the getaway driver for a friend who entered an apartment intending to retaliate for the theft of a phone. Although Dourhnou may not have known at the outset that his friend was armed, the sentencing judge found that he heard shots fired, yet still allowed the shooter to get in his car. Dourhnou also had a criminal record and was on conditional release when he participated in the home invasion. Specific deterrence was therefore a consideration. He was sentenced to seven years in prison.
[38] I have already mentioned the facts in Kwakye. The offender told a friend about a neighbor who dealt drugs and encouraged him to rob him while carrying a gun. He was not, however, present during the ensuing home invasion, during which the friend shot the neighbor, killing him. Kwayke received a sentence of ten years for manslaughter, which was reduced to seven on appeal. Of all the cases tendered by the Crown, this is the one that is the most relevant for the purposes of sentencing Mr. Tsega. Kwayke was a young, first time offender with no criminal record. There are material differences. Kwayke came up with the robbery plan and knew that a firearm would be carried. Despite this, the Court of Appeal found that a lower range of sentence was appropriate because the sentencing judge did not find, as a fact, that Kwakye subjectively knew that the gun might be used to injure or kill someone. In Kwayke ONCA, at para. 5, the Court explained why the offender’s lack of subjective awareness that a gun might be used to hurt someone rendered a ten-year sentence excessive:
Objective foresight of that risk is sufficient to support the mens rea required for unlawful act homicide. Objective foresight of a risk is, however, a lower level of culpability than would be a finding that the appellant actually foresaw the risk of the use of the gun. The appellant should have been sentenced on the basis of that lower level of culpability.
[39] This is Mr. Tsega’s second trial for his involvement in Mr. Swan’s murder. In 2016, he was tried for second-degree murder and convicted of manslaughter. The Court of Appeal set that conviction aside, on the basis that the trial judge relied on inadmissible hearsay evidence. Despite this, the Crown urges me to be guided by the nine-year sentence given to Mr. Tsega in 2017 on his first conviction.
[40] The first trial judge relied on different evidence than I did. Based on that evidence, she found that it was Mr. Tsega who first floated the idea of robbing Mr. Swan, that he provided Mr. McLellan and Mr. Barnett with information about Mr. Swan and his house, and that he willingly supplied them with dark clothing. She also found that Mr. Tsega knew or should have known that Mr. Barnett was carrying a gun. These findings, which are materially different that those made on the evidence during his second trial, supported a longer sentence.
[41] The defence relies on cases where courts have imposed shorter sentences for manslaughter, notably R. v. Cole, [2004] O.J. No. 1691 (S.C.), R. v. Iozzo, [2004] O.J. No. 3641 (S.C.), MacFarlane, and Henry.
[42] Iozzo and MacFarlane are both cases where an offender inadvertently killed someone during a physical confrontation. These cases are so factually dissimilar from the case at bar that they do not provide much guidance. They simply confirm that sentencing for manslaughter is flexible.
[43] Cole and Henry are more helpful. In Cole, the accused gave a friend a loaded gun and drove him to a pre-arranged robbery. He waited outside while the friend entered the premises. During the robbery, his friend shot and killed someone. Cole then drove the shooter away from the crime scene and told him to dispose of the gun. Justice Ratushny imposed a total sentence of six years, consisting of four years imprisonment followed by two years of probation.
[44] In Henry, the offender drove with another person to an apartment building to check on a female friend who was trying to end a relationship with her boyfriend. When they arrived, they encountered the woman and her boyfriend in the building’s elevator. The boyfriend threatened to kill both Henry and his companion. When the elevator doors opened, Henry fled. The companion shot the boyfriend before following Henry to the car. Henry then drove him home. Justice Molloy concluded that Henry’s degree of responsibility for the victim’s death was at the lower end of the spectrum and sentenced him to four years’ imprisonment followed by two years of probation.
[45] Cole and Henry both involved youthful offenders who had no prior record of violent crime and who were not present when the victim was killed. In Cole, the fact that the offender supplied a loaded gun to the shooter was an important aggravating feature. Neither of them, however, involved a home invasion.
[46] Based on Cole, Henry, Dourhnou and Kwakye, I find that an appropriate range for a sentence in a case like this is four to seven years. In order to determine where this case falls within that range, I must consider the circumstances of the offence already outlined above, Mr. Tsega’s circumstances, and aggravating and mitigating factors that argue for a greater or lesser penalty.
Mr. Tsega’s circumstances
[47] Mr. Tsega was born in Toronto. His parents separated when he was a baby and he was raised by his mother. His father struggled with substance abuse and PTSD and was not in the picture very much.
[48] Mr. Tsega has an older brother, Josh, and an older half-sister, Sara. Both of them attended university and currently work in the United States. His younger brother, Matthew, was killed in a car accident in 2018, leaving two very young daughters. Mr. Tsega has other relatives, including a grandmother, an uncle, an aunt and another niece, who have an active presence in his life.
[49] Although Mr. Tsega’s mother was employed, the family was not well off when he was a child. They lived in subsidized housing in Toronto. When Mr. Tsega was eleven years old, his mother got a promotion and they moved to Barrhaven, where he thrived. He joined a competitive lacrosse team and played many other sports as well. He had good relationships with his peers.
[50] Mr. Tsega was an indifferent student in high school. He admitted to Daniella Pelligrino, the author of the pre-sentence report, that he did not take school seriously at the time. He also smoked marijuana frequently as a teenager and enjoyed partying on weekends. After he was charged, Mr. Tsega attended adult high school. On the strength of the marks he got there, he was admitted into Carleton University. He was, however, unable to complete his degree because, when the university learned that he was awaiting trial on a second-degree murder charge, it expelled him from the campus.
[51] Mr. Tsega began working part-time as a teenager. He was working at a retail sports store at the time of the offence. He worked in a lumberyard after leaving university, and he got his current job as a flooring installer in 2017.
[52] Mr. Tsega was hit on the head by a puck when he was twelve. This affected his ability to remember and retain new information. The full impact of this injury on Mr. Tsega’s cognitive abilities is unclear because no medical evidence was tendered.
Aggravating factors
[53] Mr. Swan was only 19 years old when he was killed. His death was brutal, shocking and senseless. It took place during a home invasion during which four other people in the house were terrorized and confined. They were not allowed to give first aid to Mr. Swan or to call for medical help for him while the robbers searched for drugs, money and electronics. The home invasion was a terrifying and traumatizing event. It shattered Barrhaven’s self-image as a safe, crime-free neighbourhood.
[54] The circumstances of Mr. Swan’s murder are an aggravating factor. I have described what occurred on February 21st, 2010 as a home invasion because it meets the Court of Appeal’s description of this type of crime in R. v. S. (J.) (2006), 2006 CanLII 22101 (ON CA), 81 O.R. (3d) 511 (C.A.), at paras. 28-33. It involved not just a robbery, but a violent assault within someone’s home. Mr. Tsega knew that Mr. Swan had an active social life and housemates and that there would likely be other people in the house. He knew or was willfully blind to the reality that Mr. Barnett, Mr. McLellan and Mr. Mullen would not find cash and/or drugs at the Moodie Drive house without questioning its occupants or confining them during a search. He did not turn his mind to the likelihood that, during this event, they might seriously hurt or kill Mr. Swan or someone else in the house. But any reasonable person in his position would have realized that violence was inherent to the crime that he facilitated.
[55] In the days after the home invasion, Mr. Tsega lied about his knowledge and involvement. This is also an aggravating factor, although not a significant one.
[56] In its arguments on sentencing, the Crown placed a great deal of emphasis on Mr. Tsega’s personal betrayal of Mr. Swan, their common friends, and the larger Barrhaven community. I accept that this is an aggravating factor, but not a weighty one. As already mentioned, Mr. Tsega did not consider the possibility that someone could be injured or killed during the home invasion. He should have, but he did not. He therefore intentionally betrayed Mr. Swan and others by facilitating a break-in but he did not knowingly expose them to physical danger.
[57] Eleven years later, Mr. Swan’s parents and friends remain devastated and angry. In their victim impact statements, they spoke at length about Mr. Swan’s gregarious and generous nature, and how his death affected them and continues to affect them. They blame Mr. Tsega for Mr. Swan’s death, even though it was Mr. McLellan who shot him. They feel that Mr. Tsega has not expressed any genuine remorse or suffered any consequences as a result of his crime. They accuse him of prolonging their suffering by failing to plead guilty.
[58] I feel enormous sympathy for those who loved Michael Swan, a generous young man whose life ended prematurely. He was, by all accounts, a wonderful person. But Mr. Swan’s personal qualities do not dictate a longer sentence for Mr. Tsega. As observed by Watt J. in R. v. Costa, [1996] O.J. No. 299 (Gen. Div.), the sanction imposed for manslaughter does not depend on the good qualities of the victim or how much his family and friends miss him. No matter how long a sentence is imposed on Mr. Tsega, it will not bring Mr. Swan back.
[59] Mr. Tsega’s failure to plead guilty, and the case’s lengthy procedural history, are also not aggravating factors. Mr. Tsega was entitled to require the Crown to prove its case. When he was tried in 2016, he was facing a second-degree murder charge, which if proved would have condemned him to life in prison with no chance of parole for ten years. Had he pleaded guilty at that point or prior to his second trial, this would have been a mitigating factor. But his decision not to do so cannot be used to justify a longer sentence.
Mitigating factors
[60] Mr. Tsega was 18 years old in February 2010. He had no criminal record, nor has he ever been charged with another crime aside from this one.
[61] The defence filed twenty-eight letters from Mr. Tsega’s family members, friends, employers, religious leaders and community members. These letters paint a picture of a thoughtful, positive, hard-working, compassionate and even-tempered person.
[62] Mr. Tsega has not breached any of the conditions of his conditional release over the last ten and a half years. There is no indication that he has used any drugs or alcohol since his arrest in December 2010. To the extent that drugs played a role in his decision-making in February 2010, this no longer appears to be a factor.
[63] Mr. Tsega is active in his church. He attends weekly videoconference meetings of Leader Impact, a Christian organization, and volunteers his time at a coffeehouse in downtown Ottawa that serves homeless individuals. He has talked about starting a business that would hire young men who face personal challenges.
[64] Mr. Tsega is close to his immediate and extended family. He has helped relatives through difficult times and assisted them with home renovations. He supported his mother when she became very depressed after his brother Matthew’s death, and he has played an important role in his nieces’ lives.
[65] Given the lack of any hard evidence about the extent of Mr. Tsega’s brain injury, I do not find that it mitigates his culpability for his actions on February 21, 2010. I likewise do not find that the injury will impede his further rehabilitation.
[66] Mr. Tsega has either studied or worked throughout the time that he has been on conditional release. He is, by all accounts, a diligent and reliable employee. He has sought training to upgrade his skills as a floor installer and has been promoted steadily. It is not entirely clear how long his current employer would hold his job open if a custodial sentence is imposed. Given his history and work ethic, however, Mr. Tsega will undoubtedly seek and find employment.
[67] In discussions with others, Mr. Tsega has expressed remorse for his role in Mr. Swan’s death. During the sentencing hearing, Mr. Tsega apologized to the Swan family and told the court that he accepted responsibility for what happened on February 22, 2010.
[68] Based on all of the evidence, I find that Mr. Tsega’s involvement in the home invasion and Mr. Swan’s death was totally out of character. There is little or no likelihood that he will reoffend.
Credit for time served
[69] Credit for time served is usually granted because, otherwise, an offender who spent time in pre-sentence custody would serve longer in jail than an identical offender who committed an identical offence, but was granted bail: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 21. Since being charged in September 2010, Mr. Tsega has spent a total of 351 days in pre-sentence custody and 61 days in post-sentence custody.[^1] The Crown and defence agree that he is entitled to a 1:1 credit for the latter. They differ, however, on how much credit he should get for each day served in pre-sentence custody, because they disagree on whether the TSA applies.
[70] The TSA came into force on February 22, 2010. The defence argues that the conduct that makes Mr. Tsega criminally liable for manslaughter occurred before midnight on February 21. The Crown says that he would not be criminally liable had it not been for the murder of Mr. Swan just after midnight, and that the TSA therefore applies.
[71] Prior to the enactment of the TSA, judges had discretion in determining the appropriate credit for time served prior to sentencing. The TSA imposed a hard cap of credit in the amount of one and one-half days for each day that an offender spends in pre-sentence custody. Although s. 5 of the TSA gave it retrospective effect, in R. v. R. S., 2015 ONCA 291, 334 O.A.C. 239, the Court of Appeal held that this violated s. 11(i) of the Canadian Charter of Rights and Freedoms. This provision states that, if a person is “found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing”, the offender has the right “to the benefit of the lesser punishment”. At para. 32 of R. S., the Court of Appeal held that pre-sentencing custody is punishment. Since s. 5 of the TSA varied the amount of punishment that an offender could receive and was not justified under s. 1 of the Charter, the 1.5:1 cap on credit for pre-sentence custody applies only to offences committed after the TSA came into force on February 22, 2010.
[72] When Mr. Tsega was convicted after his first trial in 2016, the trial judge recognized that his direct involvement in the home invasion ended before the TSA came into force. She nonetheless held that s. 5 applied because “[t]he killing of Michael Swan, which is the foundation of the manslaughter conviction of Mr. Tsega, occurred on February 22, 2010”: R. v. Tsega, 2017 ONSC 2256, at para. 48.
[73] I respectfully disagree with this conclusion. It did not take into account the guidance given by the Court of Appeal in Canada (Attorney General) v. Lalonde, 2016 ONCA 923. Lalonde was issued shortly before the judge heard sentencing submissions, and it does not appear that counsel drew her attention to it.
[74] In Lalonde, the Court considered what the “time of commission” of an offence is for the purpose of s. 11(i) of the Charter. Lalonde had been convicted of conspiracy. The Crown advanced the same sort of argument that the Crown does in this case: it argued that no criminal offence of conspiracy has been committed until the object of the conspiracy has been achieved or the agreement is frustrated by the arrest of the co-conspirators. The Court rejected this argument, stating at para. 15 that:
The commission of a crime connotes culpability for that crime. An offender is culpable in the sense that he or she is liable to be convicted for the offence when he or she has performed the required actus reus with the required mens rea. Criminal culpability exists from that point forward whether the offence is a continuing one or not…. Events subsequent to the point in time at which the actus reus and mens rea coexist cannot remove or negative culpability, although they may mitigate or aggravate punishment…. For example, a person who enters into a criminal conspiracy, intending to carry it out, but abandons the conspiracy before the object is achieved or the agreement is terminated, remains criminally liable for the crime of conspiracy. [Citations omitted.]
[75] The Crown contends that this reasoning does not apply in this case because murder, unlike conspiracy, is not a continuing offence. At para. 16 of Lalonde, however, the Court of Appeal emphasized that the characterization of an offence as continuing is irrelevant in determining when an accused committed the offence:
[T]he continuing nature of the crime has no impact on the determination of the point in time at which liability for the commission of the offence attaches. If a person engages in the required actus reus with the specified mens rea, that person commits the offence whether or not the offence is a continuing one. [Emphasis added.]
[76] Mr. Tsega is guilty of manslaughter based on s. 21(2) of the Code. He committed the actus reus of the offence by forming an intention, with Mr. Barnett, Mr. McLellan and Mr. Mullen, to rob Mr. Swan, and by assisting them by showing them where Mr. Swan lived. He had the required mens rea because he knew or was willfully blind to the reality that the robbery would involve a confrontation with the occupants of the Moodie Drive house and he ought to have known that there was a serious risk of injury or death. All elements of Mr. Tsega’s participation took place before February 22, 2010. That is therefore when Mr. Tsega committed a crime, for the purpose of any s. 11(i) analysis: Lalonde, at para. 17.
[77] In the pre- TSA era, courts routinely gave two days credit for each day served by an offender prior to sentencing. This practice was endorsed by the Supreme Court of Canada in Wust, at para. 45. I see no reason why I would depart from this practice here. I therefore conclude that Mr. Tsega should be credited with 702 days for time spent in jail prior to sentencing, in addition to the 61 days he served post-sentence, for a total credit of 763 days or two years and one month.
Should Mr. Tsega get a reduction in sentence for time on conditional release?
[78] This case has an unusually long procedural history. Mr. Tsega was arrested in September 2010. He has been on bail, under house arrest, since December 2, 2010, except for the 412 days (or just over 13 months) that he spent in pre- and post-sentence custody. This amounts to over nine and a half years spent on conditional release. The defence contends that Mr. Tsega should get two years of credit towards sentence on account of this. The Crown argues that Mr. Tsega had minimal restrictions while on bail and therefore is entitled to no reduction in his sentence.
[79] In R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), the Court of Appeal held that time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor: at para. 33. The sentencing judge must therefore consider the impact of time spent on bail in determining the length of sentence: Downes, at para. 37. The amount of credit to be given is within the discretion of the trial judge and there is no formula that applies: Downes, at para. 37. It depends on 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; and the ability of the offender to carry on normal relationships, employment and activity: Downes, at para. 37. The onus is on the offender to present information that establishes, on a balance of probabilities, that the terms of his conditional release had an impact on him: Downes, at para. 37.
[80] Under the terms of his conditional release order on December 2, 2010, Mr. Tsega was subject to sixteen discrete conditions. He was required to reside with his mother and not to leave the premises unless this was in compliance with the terms of his bail. He was able to leave the house to attend school as well as medical and legal appointments, and for work and volunteer activities approved by his mother. He was also permitted to leave for other reasons, if accompanied by a surety. The terms allowed him to attend school and work. The letters filed by the defence show that he has been able to maintain close relationships with family members and friends over the past decade.
[81] Beyond relying on his mother’s permission to leave the house for most purposes, the terms of Mr. Tsega’s bail imposed some significant restrictions on a person of his age. He was barred from consuming any alcohol or illegal drugs. He was not permitted to own a cellphone. Until 2019, he had to remain within the City of Ottawa, comply with a nightly curfew and report in person monthly to the police. Exceptionally, he was able to travel to Toronto for three days in 2011, and to accompany the Carleton University lacrosse team for scheduled games outside Ottawa in 2013-14. As of 2019, Mr. Tsega could, if authorized, travel outside the City of Ottawa, but he had to remain in Ontario and to comply with the curfew, the monthly reporting requirement, and the other conditions of his bail.
[82] The Crown contends that the terms of Mr. Tsega’s bail were not particularly harsh and that he has not proved that they interfered with his life in any important way. When Mr. Tsega was sentenced in 2017 after his first trial, his sentence was not reduced to reflect time spent on bail.
[83] I agree that the conditions imposed on Mr. Tsega were not draconian. The length of the time he has spent on bail is, however, very significant. Throughout his twenties, he has been required to live with his mother and obtain her permission to leave the house for most purposes. He could not leave the City of Ottawa, absent special permission, until 2019. If Mr. Tsega breached any condition, he could have gone to jail and his mother, who is not a wealthy woman, would have forfeited a $50,000 bond. His bail could have been revoked if he had been found in possession of a cellphone or if someone reported that he had been seen drinking a beer or if he was seen crossing the interprovincial bridge to Quebec.
[84] I conclude that Mr. Tsega is entitled to some reduction of a custodial sentence based on the sheer length of time he spent under house arrest, even if the terms were not excessively harsh. The Crown argued that, if I did this and also treated Mr. Tsega’s compliance with bail terms as a mitigating factor, this would give him credit twice for the same thing. I do not agree. Compliance with bail conditions shows that an offender can be rehabilitated and so informs the length of sentence that should be imposed. Credit for time spent on bail under house arrest recognizes that an offender has already received a sanction for his offence.
[85] Mr. Tsega spent 3446 days on bail under house arrest. In the circumstances, I find he is entitled to a further reduction in sentence of just over 5% of 3446 days, or six months.
What is an appropriate sentence in this case?
[86] There are significant mitigating factors in this case, including Mr. Tsega’s age at the time of the offence, his lack of criminal record, his lack of knowledge that firearms could be used during the robbery, and his lack of subjective awareness that someone might be killed or seriously hurt. Mr. Tsega’s participation in criminal activity was out of character for him. His conduct since his arrest indicates to me that there is no serious likelihood that he will reoffend.
[87] As a result, I find that the sentence in this case should be on the lower end of the applicable range. As stated by Mr. Tsega’s sister Sara, “The person you are trying to punish here is not the one who will endure the consequences of your decision”. His conduct since his arrest has shown a commitment to serve others and the broader community, and to atone for Mr. Swan’s death. In light of this, I do not find his expression of remorse at the end of trial to be meaningless or insincere. I do not find that a custodial sentence must be imposed for the purpose of rehabilitating Mr. Tsega or to deter him from similar acts in the future. He poses no threat to society.
[88] While rehabilitation plays a lesser role in sentencing for manslaughter, it remains an important consideration when sentencing an eighteen-year-old first offender on any offence: Kwakye ONCA, at para. 3. Failing to take into account Mr. Tsega’s rehabilitation to date would be an error in principle. In a case such as this, however, the sentence must also reflect the need to denounce the offender and to deter others from engaging in similar acts. Providing reparations for harm done to the victims and the community is also a legitimate sentencing objective in this case.
[89] Every manslaughter case involves a death. This one is particularly tragic. Mr. Swan’s premature, violent and senseless death devastated those who loved him. They are distraught that he was betrayed by someone they knew. They will likely never get over it.
[90] Mr. Tsega did not make one poor decision but many on February 21st, 2010. He chose to allow Mr. Barnett, Mr. McLellan and Mr. Mullen to enter his house to prepare for the home invasion. He chose not to ask questions about the plan to rob Mr. Swan because he knew he would not like the answers. He chose to not try to dissuade Mr. Barnett and the two others from going through with their plan, even though Mr. Swan was also a friend and there was a strong likelihood that other people that Mr. Tsega knew would be in the Moodie Drive house that night. He chose to get in an SUV and direct the robbers to Mr. Swan’s house. After they dropped him back off, he chose not to contact Mr. Swan, or the police, or his older brother, or anyone else, to warn them about what was going to happen. Had Mr. Tsega made a different choice at any point in this sequence of events, Mr. Swan would likely not have been killed.
[91] Mr. Tsega had no motive to harm Mr. Swan. There is no indication that he disliked or resented him, or that he stood to gain anything from the plan to rob him. And yet his choices on February 21st, 2010 showed a casual and shocking disregard for the consequences of his actions.
[92] The sentence in this case must send a message that a home invasion is a serious and inherently violent crime that can result in someone being killed. Although Mr. Tsega was not in the Moodie Drive house during the home invasion, it could not have occurred without his active participation.
[93] I have considered the defence’s suggestion of a combination of a custodial sentence and conditional release, with the result that, taking into account time served and on bail, Mr. Tsega would not spend any more time in prison. I do not think that this is a reasonable outcome in the circumstances. As Morin J. said in Iozzo, at para. 91: “Young people must understand that if they commit unlawful acts that result in the death of another, then they must pay the consequences and run the risk of being sent to penitentiary”.
[94] Mr. Tsega, please stand.
[95] As you yourself have recognized, you made a series of stupid and immature choices on February 21st, 2010. Your actions resulted in the death of another person, the terrorization of four other people in the Moodie Drive house that night, and the devastation of Mr. Swan’s family and friends. I recognize the significant efforts you have made over the past ten years to atone for this and to live a blameless life. I am confident that you will use the further time that you will spend in custody to continue to reflect and that, when you are released, you will continue to work hard, be a supportive son, uncle and brother, and serve others in the community. This is how you will prove that what you did when you were 18 years old does not reflect the person you are today.
[96] I conclude, in the circumstances, that you should serve a total sentence of five years. Taking into account credit for time served pre- and post-sentence and a reduction of sentence to account for the time you spent on bail under house arrest, you are committed to a further two years and five months in custody.
[97] You are prohibited under section 109 of the Criminal Code from ever possessing any firearm or any other weapon listed in that section. You are also required to submit to the taking of a bodily sample for the purpose of DNA analysis and data bank storage. You are prohibited from communicating with Dale or Rhea Swan, or with any other member of Michael Swan’s immediate family. This does not prohibit a member of the Swan family from contacting you for the purpose of engaging in a restorative or collaborative justice initiative.
S. Gomery J.
Released: June 28, 2021
COURT FILE NO.: 11-1878
DATE: 2021/06/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
Her Majesty the Queen
Crown
– and –
Sam Tsega
Defendant
Reasons for sentence
Justice Sally Gomery
Released: June 28, 2021
[^1]: The defence initially calculated the duration of post-sentence custody at 55 days, but at the sentencing hearing accepted the Crown’s calculation of 61 days.