ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Crown/Respondent
– and –
Sam Tsega
Defendant/Applicant
Dallas Mack and David Rodgers for the Crown
Solomon Friedman and Tasha Bobrovitz for the defendant
HEARD: October 13, 14, 19, 21-23, 28, 30 and November 2-6, 17 and 19, 2020
PUBLICATION BAN
By court order pursuant to s. 486.5 of the Criminal Code, information that may identify the witnesses referred to as X, Y and Z in connection with this proceeding may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing, broadcasting or transmitting any information disclosing the participation of any of these individuals as witnesses in this proceeding. This publication ban applies indefinitely unless otherwise ordered.
NOTE: The official signed verdict is sealed and is not to be disseminated in any manner except to counsel.
REDACTED VERSION OF THE VERDICT[1]
1Shortly after midnight on February 22, 2010, a Ford Explorer SUV drove along a quiet stretch of semi-rural road in Barrhaven, an Ottawa suburb, and parked just past a house at 4139 Moodie Drive (the “Moodie Drive house”). Wearing black clothing, masks and gloves and armed with two loaded handguns, three men entered the Moodie Drive house through an unlocked backdoor and stormed into the bedroom of Michael Swan (“Swan”). They ordered Swan and the other two people there, Swan’s girlfriend Kaitlyn Scott (“Scott”) and friend Tyler Tanguay (“Tanguay”), to get on the floor. When Swan made a sudden movement, one of the intruders shot him through the shoulder, killing him instantly.
2After shooting Swan, the three intruders corralled Scott, Tanguay and Swan’s two housemates (“Vergette” and “Smith”) into a spare bedroom and searched for money and drugs. They fled the house about half an hour later, with roughly 2000 grams of marijuana. $3300 in cash, and some electronics. They were apprehended and arrested about an hour later after police tracked the vehicle using the signal of Scott’s stolen cellphone.
3The shooter [ ] has since been convicted of the first-degree murder of Swan, while the other two participants in the home invasion [ ] have been found guilty, respectively, of second degree murder and manslaughter.
4Sam Tsega (“Tsega”), the accused in this case, is charged with manslaughter under s. 236 of the Criminal Code. The Crown seeks to establish his liability as party to Swan’s murder through the operation of s. 21(2) of the Criminal Code. Section 21(2) provides as follows:
Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
5The Crown’s theory is that Tsega formed an agreement with X, Y and Z to carry out an unlawful purpose (robbing Swan); that an offence was committed in the course of this unlawful purpose (Swan’s murder) and that Tsega was aware, or should have been reasonably aware, that the robbery put Swan and other occupants of the Moodie Drive house at risk of serious injury. If these elements are proved beyond a reasonable doubt, then Swan would be guilty of manslaughter.
6Tsega had known Swan for years. They had both gone to John McRae High School and shared the same circle of friends in Barrhaven. Tsega had been to parties at the Moodie Drive house. X, Y and Z had driven up from Toronto, where they lived, on the night of February 21, 2010. They had never met Swan. X and Y learned about him from Tsega during a get-together at Christmas 2009. Tsega told them that he purchased marijuana from Swan and that Swan had been robbed earlier of $20,000.
7After X, Y and Z arrived in Barrhaven around 11:00 p.m. on February 21, they sat together in the Explorer eating pizza that Tsega had ordered for them, then went into Tsega’s house to use the bathroom and borrow some clothing. Finally, just before midnight on February 21, 2010, Tsega drove with X, Y and Z to the Moodie Drive house, to show them exactly how to get there. They dropped him back off at his house before returning to execute the home invasion.
8The defence argues that the Crown has not proved beyond a reasonable doubt that Tsega knew what the perpetrators of the home invasion intended to do after they drove him back home. Even assuming he knew they were going to break into the Moodie Drive house, he was unaware that they would confront Swan and others in the house. Finally, he could not have been reasonably aware that there was a risk of violence during the robbery. In the alternative, the defence contends that Tsega gave Swan’s address to X, Y and Z only after being threatened with bodily harm, and that he is not criminally liable for assistance provided under duress.
9The questions I must consider are therefore as follows:
I. Has the Crown proved that Tsega committed manslaughter?
(i) Has the Crown proved an agreement between Tsega and X, Y and Z to commit a robbery?
(ii) Was the murder of Swan during the robbery an offence for the purpose of s. 21(2), or an included offence?
(iii) Was Tsega aware, or should he have been aware, that there was a risk of serious injury to someone during the robbery?
II. If the Crown has proved that Tsega committed manslaughter, should he nonetheless be excused based on the defence of duress?
10Before reviewing the evidence and making findings on each of these issues, I will begin with brief remarks on the guiding legal principles in this case and make some preliminary findings on credibility.
The presumption of innocence and other foundational evidentiary principles in this case
11Tsega is presumed innocent. The onus is on the Crown to prove, beyond a reasonable doubt, that he is guilty of the crime with which he is charged. The Crown bears this onus on every essential element of the s. 21(2) test. If the evidence does not meet this very high standard, Tsega must be acquitted.
12I mention this not only because it is the bedrock of our criminal justice system, but because this is the second time that Tsega has been tried. At his first trial in 2016, Tsega was convicted of manslaughter. The conviction was set aside by the Court of Appeal in 2019, on the grounds that the trial judge had relied on inadmissible hearsay evidence.
13Tsega’s earlier conviction has no bearing on my consideration of the Crown’s case at this trial. He continues to be presumed innocent. I furthermore cannot rely on the findings of fact reached by the judge at the first trial. Those findings were based on the evidence she heard, which may be different than the evidence before me. I likewise cannot rely on the recitation of facts set out by the Court of Appeal in the context of the appeals of verdicts in related proceedings. I must judge this case only on the basis of evidence presented or admitted on consent during this trial.
14Furthermore, because the evidence in this case is circumstantial, I can find Tsega guilty only if I am satisfied beyond a reasonable doubt that his guilt is the only rational conclusion or inference that can be drawn from the entire body of evidence; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33. Based on the principles established by the Supreme Court of Canada in R. v. W(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, if there is evidence that favours the defence, or conflicting evidence on a particular issue that, in the context of the evidence as a whole, causes me to have reasonable doubt about Tsega’s guilt, I must acquit him; R. v. B.D., 2011 ONCA 51,273 O.A.C.241, at para. 114.
Preliminary findings on credibility
15The Crown called the following witnesses:
Y and Z;
Connor, Tyler and Alec Buchanan. Connor was Tsega’s best friend in Barrhaven. Tyler was his older brother and a close friend of Swan. Tyler and Connor’s father, Alec, knew Tsega as through Connor and because he had coached Tsega’s lacrosse team. Since these three witnesses share the same last name, I will refer to them as Connor, Tyler and Alec;
Garett Butler, another friend of Tsega in Barrhaven (“Butler”);
Phillip Derrick a friend of Swan who also sold marijuana in 2009-10 (“Derrick”);
Sue Jackson, Tsega’s mother (“Jackson”);
Emily Charczuk, the former girlfriend of Tsega’s older brother Josh Jackson (“Charczuk”); and
Danielle Fortier, a representative of Rogers, Tsega’s cellphone provider (“Fortier”).
16The parties also filed transcripts of evidence given during earlier proceedings by Scott, Tanguay, Vergette and Smith, the four survivors of the home invasion. The parties agreed that I could rely on this evidence to the extent that I found it credible.
17The parties admitted certain background facts, such as the relationship between various individuals and the items seized when X, Y and Z were apprehended. The defence also acknowledged as accurate the Rogers’ cellphone records of Tsega and others in late 2009 and early 2010, recordings of calls that Tsega made to Pizza Pizza on February 21, 2010, and transcripts of Jackson’s intercepted phone calls in August and September 2010.
18I do not intend to summarize the evidence of each witness who testified during this trial or in these earlier proceedings. I will instead refer to specific testimony where it is relevant to a particular issue. I will however make preliminary findings about the overall credibility of Y, Z and Jackson. I will also, at the outset, comment on the defence’s assertion that I should make a negative inference as a result of the Crown’s failure to call X as a witness.
(a) Z’s overall credibility
19In light of his criminal history including his involvement in this case, the defence has urged me not rely on the evidence given by Z unless it can be independently corroborated.
20In Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811, the Supreme Court of Canada held that there is no special category of unsavoury witnesses, such as those with a criminal record, whose testimony should be automatically be considered suspect. A trial judge should, instead, “direct his mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness”; Vetrovec, at p. 823. In the context of a jury trial, in determining whether the jury ought to be warned to be cautious in accepting the evidence of such witnesses, the trial judge should consider, in particular, the credibility of the witness and the importance of the evidence to the Crown’s case; R. v. Brooks, 2000 SCC 11, [2000] 1 SCR 237, at para. 4.
21The principles set out in Vetrovec and Brooks apply in the absence of a jury. If I find that there are reasons to doubt the credibility of a witness, particularly a witness whose evidence is uncorroborated and central to the Crown’s case, then I must be very cautious about accepting it.
22Z was a participant in the robbery that gives rise to the charge against Tsega. His evidence is important, although not necessarily critical, to the Crown’s case. It was, for the most part, corroborated only by Y, who also participated in the home invasion. As a result, in considering the weight I should give to Z’s evidence, I must consider whether there are reasons to doubt his credibility.
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26Given this background, I find that I must be very cautious in accepting any uncorroborated testimony by Z. He had both a motivation to assist the Crown and a good reason to avoid implicating Tsega.
27As it turns out, however, the motivations that Z might have to misrepresent one way or the other do not factor heavily in my appreciation of his evidence. He was an unreliable witness for other reasons.
28It became obvious in cross-examination that Z had reconstructed some events that he mentioned during his evidence in chief. A good example of the unreliability of Z’s evidence arose in the context of his testimony about whether Tsega knew that he and X had firearms on February 21, 2010. Towards the beginning of his examination in chief, Z said that neither he nor X ever took their guns out while they were with Tsega. He denied that he ever even talked to Tsega that evening. Later, though, when asked whether he recalled any conversation in Tsega’s presence about guns, Z testified that Tsega “specifically said he doesn’t want weapons”. He said that Tsega made this statement while they were in the Explorer before they went into Tsega’s house. Even though it contradicted his testimony earlier that same day, Z said that he remembered this “100 percent”. Based on this testimony, Z had an unshakeable memory of a specific statement by Tsega about a key issue: whether Tsega was aware that he and X were armed on February 21, 2010.
29In cross-examination, however, Z agreed that he could be testifying based on information he had obtained after he was charged, as opposed to what he actually remembered had happened. After being confronted with passages from his police interview in September 2019, Z further conceded that his evidence that Tsega did not want guns around was, in fact, based on Y’s testimony at his own trial. Despite being “100 percent” sure during his earlier testimony, it turned out that his evidence about Tsega’s statement about “no guns” was based on what he had heard from someone else, not his own recollection.
30A more trivial, but equally telling, example is Z’s testimony about his frustration with Tsega’s telephone conversations with Pizza Pizza. Z recalled, clearly and in detail, that Tsega had ordered the wrong type of pizza and had so much trouble changing the order that X had to intervene. In his September 2019 interview, Z also vividly recalled his annoyance with Tsega having ordered something “stupid” like pineapple and chicken. The recording of the Pizza Pizza calls showed that this memory was fabricated. Tsega had to call Pizza Pizza back because he needed to change the address for delivery, not the substance of the order.
31In cross-examination, Z admitted that his difficulty in remembering some of the details of what happened on February 21-22, 2010 was due to his focus on other things at the time. His child’s mother had threatened to withhold access during a fight before he, X and Y left Toronto. When they went inside Tsega’s house, Z spent time in the washroom and then on the computer in Tsega’s room, checking his Facebook page for messages. He was accordingly not paying much attention to the activities and discussions taking place in Tsega’s room before they drove to the Moodie Drive house.
32The serious problems with Z’s evidence do not mean that I can give it no weight at all. Where, however, his testimony diverges from the evidence of other witnesses or other reliable evidence, I cannot rely on it.
(b) Y’s overall credibility
33The defence also urges me to place little or no weight on Y’s evidence. [ ] His testimony is even more central to the Crown’s case than that of Z. [ ] His evidence about Tsega’s words and actions on February 21, 2010 is also important.
34Having considered Y’s situation, I do not have the same extent of concern about his inherent unreliability as a witness as I do about Z.
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37As a result, I do not find that Y has a motivation to exaggerate Tsega’s role in the preparation and execution of the home invasion in order to avoid additional charges, or that he generally displayed any favour towards to the Crown’s case.
38I did find, however, that Y consistently attempted to downplay his own involvement in the planning of the home invasion and his responsibility for Swan’s death. He insisted, for example, that he really wanted to arrange to buy drugs from Swan, not rob him, and he was only cajoled into the robbery plan by X. I reject this narrative. Y was the opposite of a passive participant. Y recruited Z and agreed to carry Z’s Sig Sauer when Z got cold feet just before they entered the Moodie Drive house. He led the home invasion [ ].
39In sum, I do not find that Y was an inherently unreliable witness as a result of his history or any other factor. I do however conclude that his testimony was not always reliable. I have therefore been cautious in accepting his evidence where it is uncorroborated. I have also been alert to concessions he made in cross-examination and conscious of the need to consider whether his version of events is inherently plausible.
(c) Sue Jackson’s overall credibility
40Jackson’s testimony was generally of limited assistance. She had no direct knowledge of what occurred on February 21, 2010 and relied on what others told her. She could not remember key events, such as her son’s whereabouts in December 2009 and early January 2010. She repeatedly contradicted herself or gave evidence that was logically incoherent. Her evidence often appeared to be based on suppositions as opposed to any actual knowledge or memory.
41Beyond these problems, Jackson was strongly motivated by a desire to protect her son. This badly compromised her credibility. Some of her assertions were clearly untrue, such as her denial that she never discussed the evening of February 21, 2010 with Tsega. I conclude that she would have said almost anything that she thought might assist his defence.
42For these reasons, I give Jackson’s evidence little or no weight unless it is corroborated by other evidence that I accept or it is reliable for other reasons.
(d) The Crown’s failure to call X
43The Crown arranged for X to attend at the courthouse to be called as a witness, yet ultimately did not do so. The defence suggests that this was improper or, at the very least, that I should draw an inference that X’s evidence would not have supported the Crown’s theory of the case.
44In R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at pp. 190-91, the Supreme Court of Canada held that the Crown is not required to call every witness who might provide relevant testimony:
The Crown has a discretion as to which witnesses it will call in presenting its case to the court. This discretion will not be interfered with unless the Crown has exercised it for some oblique or improper reason… . While the Crown may not be required to call a given witness, the failure of the Crown to call a witness may leave a gap in the Crown's case which will leave the Crown's burden of proof undischarged and entitle the accused to an acquittal. It is in this sense that the Crown may be expected to call all witnesses essential to the unfolding of the narrative of events upon which the Crown's case is based.
45This reasoning was reaffirmed in R. v. Cook, 1997 392 (SCC), [1997] 1 SCR 1113. In that case, the Court restored a conviction for assault even though the Crown had not called the victim as a witness at trial. The traditional rationale for compelling the prosecution to call all potential witnesses was the need to avoid trial by ambush. Modern rules of disclosure make this unnecessary, unless the defence can point to another reason why a failure to call a witness results in unfairness. At para. 55 of Cook, the Court concluded that “there is no duty upon the Crown to call witnesses nor a more specific duty to call the complainant or victim. Decisions on how to present the case against an accused must be left to the Crown’s discretion absent evidence that this discretion is being abused.”
46In this particular case, the defence could have called X and, if he resiled from previous statements favourable to Tsega, sought to cross-examine him under s. 9 of the Canada Evidence Act, R.S.C., 1985, C-5. Tsega has not identified how the Crown’s failure to call X plausibly results in a prejudice to the defence.
47Courts have consistently held that, although an adverse inference from the Crown’s failure to call a witness may be drawn in the appropriate case, this should only be done “with the greatest of caution”: R. v. Lo, 2020 ONCA 622, at para. 156, and cases cited therein.
48I conclude that the Crown exercised legitimate prosecutorial discretion in electing not to call X as a witness. Such a decision may result in gaps in the narrative and could, ultimately, mean that the Crown cannot prove its case beyond a reasonable doubt. It does not, however, give rise to an adverse inference.
I. Has the Crown proved that Tsega committed manslaughter?
49To prove that Tsega is guilty of manslaughter, the Crown must prove, beyond a reasonable doubt, that:
(i) There was an agreement between Tsega and X, Y and Z;
(ii) An offence (murder) was committed in the course of the robbery which could give rise to party liability for an included offence (manslaughter); and
(iii) Tsega was aware, or should have been aware, that there was a risk of serious injury during the robbery.
(i) Has the Crown proved that an agreement between Tsega and the perpetrators of the robbery?
50To answer this question, I must determine:
(a) What constitutes an agreement under s. 21(2);
(b) The evidence with respect to Tsega’s involvement in the robbery; and
(c) Whether, in light of the law and the evidence, the Crown has proved beyond a reasonable doubt that there was an agreement between Tsega and the perpetrators of the robbery.
(a) What constitutes an agreement under s. 21(2)?
51In R. v. Cadeddu, 2013 ONCA 729, at para. 56, the Court of Appeal described the first element of the s. 21(2) test as follows:
The foundational element of s. 21(2) is an agreement between a principal and a party (or parties) to carry out an unlawful purpose. An unlawful purpose is one that is contrary to the Code. The unlawful purpose must be shared by all parties, and it must be different from the offence ultimately committed.
52The trier of fact must be satisfied, beyond a reasonable doubt, “that the accused and the other participant(s) agreed to carry out a common unlawful purpose and to help each other to do so”; Cadeddu, at para. 58; R. v. Patel, 2017 ONCA 702, at para. 40.
53The agreement does not need to be formed in advance. It can arise at the time the offence is being committed: Cadeddu, at para. 57. An agreement can be implicit in an accused’s conduct. For example, if a party joins an assault already underway by another party, this is proof of an agreement under s. 21(2); see R. v. Vang (1999), 1999 2310 (ON CA), 118 O.A.C. 75, at para. 24, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 203.
54The accused does not need to be physically present when the offence giving rise to the charge under s. 21(2) is committed. In R. v. Beatty 1944 22 (SCC), [1944] S.C.R. 73, 81 C.C.C.1, the Supreme Court of Canada held that, where a secondary party supplies a plan but is not present during the carrying out of the common purpose, he may, nonetheless, attract liability under s. 21(2) for the further offence committed during the execution of the contemplated offence; see also, on this point, R v Keepness, 2009 SKQB 466, affirmed 2014 SKCA 110, at para. 149 of the trial judge’s reasons.
55Finally, the Crown does not have to prove that the accused had the same motivation as the principal; Cadeddu, at para. 57, citing R. v. Hibbert, 1995 110 (SCC), [1995] 2 S.C.R. 973, at para. 42.
(b) What is the evidence about Tsega’s involvement in the robbery?
56In its closing argument, the Crown contended that I should find, based solely on the assistance that Tsega provided on February 21, 2010 to X, Y and Z, that he had an agreement with them to carry out an unlawful purpose. The Crown contends that there is evidence of an agreement before then, but says that it is unnecessary for me to find that there was.
57The defence argues that there is no evidence of any agreement prior to February 21, 2010, or evidence that Tsega was knowingly complicit in preparations for the home invasion on that day.
58In order to determine whether there was an agreement, I will review the evidence about the conversation between Tsega, X and Y at Christmas 2009; the planning and preparation for a robbery between Christmas and February 21, 2010; the interactions between Tsega, X, Y and Z that evening; the execution of the home invasion, and Tsega’s post-offence conduct.
The conversation at Christmas 2009
59The relationship between Tsega and X prior to Christmas 2009 was admitted. They were childhood friends. [ ].
60Tsega also knew Y[ ]. Y was known to Tsega and X as “[ ]”.
61Tsega moved to Ottawa with his mother Jackson in 2003, when he was about to start middle school. He became very good friends with Connor. They were in the same grade in the same high school and both played lacrosse. Connor testified that, in 2009-10, he and Tsega saw each other every day or every second day. They played computer games and smoked marijuana together.
62After moving, Tsega occasionally went back to Toronto to see his father. X also visited Tsega in Ottawa at least once. Connor recalled that he met X about a year before Swan was killed, at Tsega’s house. X’s mother and Tsega’s mother were also there. Connor, Tsega and X hung out and played video games.
63Meanwhile, in Toronto, Y and X saw each other frequently in 2009-10. Y was dating X’s sister and, in late 2009, she was pregnant with his child.
64In December 2009, Tsega travelled to Toronto to spend the Christmas holiday with his father. One evening, he was invited to the X house for a family dinner. Y was also there.
65Y testified that he went into X’s bedroom to smoke with X and Tsega. He was impressed by the quality of the marijuana provided by Tsega and asked him about his supplier. Tsega told him how much had paid. Y testified that he asked more questions and Tsega identified his supplier as “Mike” or “Mikey”. X said: “Why don’t we rob him?” or possibly “Why don’t we rip him off?”. Tsega then mentioned that Swan had been robbed before and they went back to talking about pricing.
66On the stand, Y initially did not remember Tsega providing any details about this previous robbery during this conversation, and then suggested that X later told him that around $80,000 had been stolen. Y was then referred back to his earlier testimony [ ]. His evidence at the time was that Tsega told him that “Mike” had been recently robbed “for like $20,000”. Having had his memory refreshed, Y agreed that a range of $20,000 to $30,000 was mentioned and that Tsega provided this information during the discussion in X’s bedroom at Christmas.
67Y testified that he thought that X had been joking when he suggested robbing Tsega’s supplier. Tsega told him that he would get back to him about pricing. Y left the bedroom a short time later to rejoin his girlfriend elsewhere in the house. He thought at the time that he might follow up with Tsega at some future date about a potential drug purchase, but did not get his contact information.
68The defence objects to any reliance on Y’s evidence about this conversation to prove an agreement, on the basis that it is hearsay and therefore inadmissible for its truth. The Crown argues that it falls within the exception for admissible hearsay because all three participants in the discussion were co-conspirators.
69I conclude that I do not need to determine if the statements made by Tsega and X are admissible under the co-conspirator’s exception. Even if I were to accept the statements for their truth, on the evidence before me no agreement reached to do anything at Christmas.
70I find, in any event, that the evidence is not being tendered for its truth and therefore does not constitute presumptively inadmissible hearsay. The Crown is not seeking, through this testimony, to prove that Swan was the victim of a prior robbery, or that Swan was selling drugs at a competitive price. X’s response is not an assertion of fact but a suggestion.
71This evidence is accordingly admissible and relevant to show what Y understood about Tsega’s supplier and what he heard X say in response. The fairness and reliability concerns giving rise to the hearsay rule do not arise. The defence had the opportunity to cross-examine Y on his understanding, to suggest that he was not recalling the discussion accurately and that his faculties were impaired as a result of the drugs and alcohol he had consumed throughout the day.
72Based on that very cross-examination, the defence argues that Y’s memory of the discussion is not reliable, because he had been consuming greater than usual quantities of marijuana as well as alcohol that day. He admitted that he did not, in general, remember the details of that day accurately.
73Although I must treat Y’s evidence cautiously, this does not mean that I must reflexively disbelieve everything he said on the stand. I may accept his evidence to the extent that it is corroborated by other evidence or is inherently plausible. Although there were gaps in Y’s memory of his interaction with X and Tsega that day — he could not recall, for example, whether it took place before or after the big family meal — I do not conclude that I must reject his evidence about what he does remember, assuming it is credible.
74I begin by observing that, although defence counsel cross-examined Y at length about the details of the discussion in X’s bedroom, there was no suggestion that the conversation did not take place.
75Y’s account of the exchange rings true. At the time, he supported himself through drug sales. It makes sense that he would comment on the quality of the marijuana supplied by Tsega and ask questions about where he got it and how much he paid for it.
76The idea of robbing Swan must have been prompted by information provided at some point by Tsega, because there is no evidence that either X or Y knew anything about Swan prior to Christmas 2009. The Christmas celebration was the only occasion prior to February 21, 2010 that X, Y and Tsega were together. It is true that Tsega could have mentioned Swan to X on another occasion. On the other hand, as already noted, there was no suggestion that Y invented this conversation. As mentioned already, I do not find that he has any hostility towards Tsega. In fact, by Y’s account, the only truly inculpatory statement — the suggestion that they rob Swan — was made by X, not Tsega. Y’s basic account of the discussion did not waver despite a lengthy cross-examination.
77I find that Tsega mentioned that he bought his drugs from Swan, that X suggested robbing Swan, and that Tsega told Y and X that Swan had been robbed before of $20,000.
78I accept that Y did not treat X’s suggestion as a serious proposal at the time. Tsega’s statement that Swan had been robbed in the past, however, was the starting point for a plan by Y and X. Again, it does not matter whether the information provided by Tsega was accurate. What matters is that, based on this discussion, Y believed that Swan had a large stash of money or drugs at the Moodie Drive house and that he might be an easy target.
Y’s and X’s actions between Christmas and Feb. 21, 2010
79Y testified that, a few weeks after Christmas 2009, he asked X if he could get a hook-up with Tsega’s drug supplier. He talked to X because he did not have Tsega’s phone number.
80In response, X suggested again that they should rob the supplier. After some further discussion, Y agreed. X told him that, in addition to $20,000 to $30,000 in cash, they might get ten pounds of marijuana.
81Y recalled that X showed him a Facebook posting, a photo of Swan with two dogs. He also, according to Y, told him that Swan lived in a house in Ottawa with other people, and that he had a girlfriend who would likely be there. Y did not, however, receive any information from X about where Swan kept drugs or money in the house, or the general layout of the house.
82As their plan developed, Y and X began to discuss bringing another person along. Y testified that, since Swan had been robbed before and sold drugs, he might have a gun. X had a gun too but, according to Y, it was too small to be intimidating. In early February, Y asked Z if he was interested in participating in a robbery or a “rip-off”. Z said yes.
83During his testimony, Z corroborated Y’s evidence about how he came to be involved in the robbery. He and Y first become acquainted either in junior high school or a youth detention centre. By early 2010, they were spending time together at least once a week (according to Y) or every day (according to Z). Z had met X a few times while he was hanging out with Y. When Y asked in early February 2010 whether he would be interested in participating in an upcoming “mission”, Z agreed. He testified that he understood that the purpose of the mission would be a “rip” and that Y told him to bring a firearm. Z had very little information about the robbery. He had a vague understanding that Y and X expected to find drugs and marijuana at the target’s house.
84Having had this discussion, Y and Z then waited for X to let them know when the robbery or rip-off would occur.
Tsega’s involvement in the robbery plan between Christmas 2009 and February 21, 2010
85The Crown urged me to find that Tsega took steps, after Christmas, to further the robbery plan, based, first, on Tsega’s attendance at a New Year’s Eve party at the Moodie Drive house and, second, his attempts to conceal his phone records in relation to it.
86Based on the cellphone records produced and Jackson’s testimony, Tsega joined X’s family for a trip to Mont Tremblant and Toronto from December 27, 2009 to January 5, 2010. Despite this, Connor and Derrick both testified that they recalled that Tsega attended the New Year’s Eve party in Barrhaven. Scott also recalled this when she testified at Y’s preliminary inquiry in 2011. Tsega’s cellphone records show no calls or texts were received or sent from 5:52 p.m. on December 29, 2009 and 3:25 p.m. on January 3, 2010. According to Fortier, the Rogers’ representative who testified at trial, this lack of activity indicates that the phone was either out of range of any tower or that the phone was turned off.
87The Crown argues that I should infer that, during the Mont Tremblant holiday, Tsega travelled back to Barrhaven to gain further knowledge of the layout of the Moodie Drive house under cover of attending the New Year’s Eve party, and that he tried to cover his tracks by turning off his cellphone for a few days.
88There are significant problems with this theory. Chief among them is the idea that Tsega had the foresight to turn his phone off for several days to avoid creating a record of cellphone communications in Ottawa, and that he would keep it off far longer than was necessary to hide his whereabouts on December 31. The theory also presupposes that Tsega knew that Rogers could generate records showing where he was placing and receiving calls and texts. But even assuming all of these things, it makes no sense that Tsega would go to the trouble of avoiding the creation of a cellphone record showing his presence in Ottawa on New Year’s Eve, given that his attendance could easily be established by any number of people who were at the party and would have seen him there, and given that he was already familiar with the Moodie Drive house.
89Tsega had already been to the Moodie Drive house many times. He attended the Halloween party, where he was photographed in the basement area next to the sauna. Connor remembered that he and Tsega had been in Swan’s bedroom at Halloween, smoking marijuana. His brother Tyler admitted that anyone who attended that party had “the run of the house”. Derrick testified that Tsega also attended a Canada Day party at the house. He recalled this vividly because he got into a fight with him, for which he was later forced to apologize.
90In these circumstances, I do not think that the absence of cellphone records from the late afternoon on December 29 to the afternoon of January 3 suggests that Tsega was trying to cover his tracks. I find that it is more likely that Tsega was out of cellphone range for a few days while on vacation.
91It is also entirely possible that Connor, Derrick and Scott were mistaken in their recollection that Tsega attended the New Year’s Eve party.
92Derrick testified that the parties held at the Moodie Drive house in 2009 on Canada Day, Halloween and New Year’s Eve were each attended by 100 people or more. Scott described them as a “free for all”. There was a lot of alcohol and pot consumed.
93I generally found Derrick to be a credible witness; he had an impressive knowledge of Swan’s marijuana sales and the local drug trade in 2009-10. Derrick recalled his interaction with Tsega on Canada Day because they fought. At the preliminary inquiry, however, Derrick did not recall that Tsega had attended the Halloween party on Moodie Drive until his memory was refreshed through the photo. The only detail he recalled about Tsega’s attendance at the New Year’s Eve party was that he arrived with Connor after midnight. He admitted that his recollection of some events might be foggy, given that ten years had passed.
94Connor had a detailed recollection of this interactions with Tsega at the Halloween party. He recalled that he and Tsega drank, smoked pot, danced and hung out that night. He remembered that they were in Swan’s room, along with Tyler, Tanguay and Scott. Connor also recalled being in the garage, basement and decommissioned sauna room where he and others “hotboxed”, although he could not remember whether Tsega joined him.
95Connor recalled that he engaged in similar activities at the New Year’s Eve party as he had at Halloween. The only detail that stood out for him, however, was that he lost his cellphone that night. Although he recalled that his brothers and some friends were there, he could not remember any specific discussions or interactions with Tsega that night.
96In cross-examination, Connor acknowledged that he had no recollection of Tsega being in Mont Tremblant after Christmas in 2009. He did not recall Tsega going back and forth from Mont Tremblant to attend the party. He conceded that his recollection of Tsega’s presence at the New Year’s Eve party on Moodie Drive may have been mistaken.
97Scott testified that she recalled seeing Tsega in Swan’s bedroom at the New Year’s Eve party and that he “got in a tiff with one of Mike’s friends that night”. She later clarified that she was referring to the altercation between Derrick and Tsega. Scott said that she thought the fight took place at either the Halloween party or the New Year’s Eve party. In fact, it took place months earlier, at the Canada Day party.
98Connor’s brother Tyler, who knew Tsega well, did not remember seeing him at the New Year’s Eve party. I do not place much weight on this one way or the other. Tyler did not recall that Tsega attended the Canada Day party either, even though Derrick had a detailed and credible recollection of their fight and Tyler’s insistence, after the party, that Derrick apologize to Tsega.
99Having considered all of this evidence, I am not convinced that Tsega attended the New Year’s Eve party at the Moodie Drive house. But even if he did, I reject the theory that he tried to conceal his attendance by turning off his phone for four days, or that he used the opportunity to gain information about the layout of the house.
The evening of February 21, 2010
100Tsega knew that X and Y were coming to Barrhaven on February 21, 2010. At 4:25 p.m., Tsega texted X: “Alright, when you guys leavin?” And then “Kk. Bring everything btw”. At 9:55 p.m., X texted Tsega that “[ ]” (Y) wanted chicken wings and garlic. Tsega texted back five minutes later that he had ordered pizza and wings. He also provided X with detailed directions to get to his house.
101Connor testified that, on February 21, Tsega called him around dinner time and told him that “[ ]”, a nickname for X, was coming in from Toronto with some friends. They wanted to order some food and possibly go out that night. In cross-examination, Connor agreed that Tsega had called him to suggest that he maybe he could join them. Although Connor agreed with this suggestion, he did not hear back again from Tsega that evening.
102Butler knew Tsega and the Buchanans through high school and sports teams. He was a heavy user of marijuana at the time and sometimes purchased drugs from Tsega. Butler testified that, on February 21, 2010, he called Tsega to ask him to hang out. They smoked in front of Butler’s house and Tsega ordered pizza and poutine. After he ordered the pizza, though, Tsega got a call on his cellphone and started walking back to his own house.
103For reasons that I will explain a little later, I put little weight on Butler’s testimony in general. I nevertheless accept his evidence about his interaction with Tsega on February 21, because it is consistent with other reliable evidence, notably the cellphone records and the Pizza Pizza recordings.
104Tsega’s phone records show that he phoned Pizza Pizza at 10:12 p.m. and again at 10:27 p.m. Based on the recordings, Tsega made the first call while he and Butler were smoking in front of his house, because he asked for the delivery to be made to the front of Butler’s house. In the next ten minutes, Rogers’ records show that four calls were made from Y’s phone to Tsega’s phone. Tsega called Pizza Pizza again after he was picked up by Y and the others in the Explorer. This is evident because Tsega made the offhand comment about his “snoopy ass neighbor” and X eventually took over the call when Tsega was unable to persuade the customer service department to re-route the pizza order to outside his house.
105Y’s testimony about what happened as he drove the Explorer into Barrhaven is consistent with this evidence. He said that X contacted him on February 21 to let him know that the robbery would take place that day. Y picked up Z in his Explorer. They drove to retrieve Z’s gun, then picked up X. They left Toronto at around 6:00 p.m.
106As they drove, Tsega was providing Y with directions through a series of texts to X. They picked him up somewhere in his neighbourhood. He phoned Pizza Pizza back to change the delivery point. He expressed concern that they would be seen by his neighbor. Y and Z also both recalled that X eventually took the phone over from him.
107After the pizza was delivered and consumed in the Explorer, Y, X and Z accompanied Tsega into his house to use the bathroom. On the way upstairs to Tsega’s bedroom, X greeted Tsega’s brother Josh and Charczuk in the living room.
108Y spent five to ten minutes in the bathroom. When he returned to the bedroom, he asked Tsega for a sweater. Y testified that he put it on and then put his coat back on overtop of it. He could not recall if Z and X also obtained clothing from Tsega. When he was arrested a few hours later, X was wearing an Ohio State sweatshirt. Tsega’s sister was attending Ohio State at the time.
109Z testified that he also used the washroom and spent some time on Tsega’s computer, checking his Facebook page. He recalled that Y told him that his shirt was too bright and that he should change into a sweater provided by Tsega. He testified that Tsega also gave him a balaclava to mask his face, and may have given X a scarf.
110According to Y, X then asked Tsega to show them where Swan lived. Here is his evidence on this point:
There’s a discussion — we’re like, take us — show us where he — show us where he lives. And he said, why — and he’s — and X said, don’t worry, just show us where he lives.
111Both Y and Z testified that Tsega did what X asked him to do. He showed them where Swan lived by accompanying them in the Explorer to Moodie Drive.
112Y denied that he ever threatened Tsega or pointed his gun at him, or that anyone brandished a gun while they were with Tsega. He acknowledged however that, as the Explorer approached Barrhaven, he was nervous and “twitchy” and that X and Z both had their “game-faces” on, meaning that they looked serious and intense.
113Y also testified that, after getting in the Explorer, Tsega looked very nervous and was “kinda stuttering a little bit” and even trembling. Y agreed that Tsega’s manner was completely different from the carefree and confident way he presented himself during the conversation at Christmas. Although Z did not remember whether Y or X seemed nervous, he remembered that Tsega was “definitely worried” and not at all comfortable. He agreed that Tsega was “stuttering and nervous”.
114Charczuk testified about her recollection of events at the Tsega house that evening. She was involved with Tsega’s older brother, Josh, and living with the family at the time. Charczuk testified that some individuals came to see Tsega on the evening of February 21. She did not recognize them. She did not see them interact with Tsega, because they went to his bedroom. When they left, she said that Tsega remained in the living room, watching the hockey game with his brother.
115During her testimony at trial, Charczuk admitted that she had no memory of the evening in question and relied entirely on her statement to police in September 2010. There were basic things about the evening of February 21, 2010 that she could not recall even eight months later. She was not sure how many people came to visit Tsega that evening or how long they stayed. She was however sure of one detail. In the September interview, she said: “I am certain Sam did not leave with them. Like I know that for a fact. I remember one of the boys saying: “We’re gonna hit up some strip clubs in Montreal”, and then they left”. This alleged remark was presumably directed at Tsega or his brother Josh, since Charczuk did not know the visitors.
116I have serious concerns about the reliability of the statement that Charczuk gave to police. The interview was conducted shortly after the Ottawa police had executed a search warrant at Jackson’s house, entering the front door by force and without warning in the early hours of the morning. Charczuk was awoken by officers who ordered her out of bed before she was able to put any clothes on. Although she was not arrested, Charczuk was taken to the police station in handcuffs and, according to her, directed to make a statement under oath. It was the second time the Ottawa police had executed a search warrant at Tsega’s house in 2010. She testified that this was the most upsetting day of her life.
117By Charczuk’s own admission, there was nothing remarkable about the evening of February 21, 2010 at the time. It is only after the fact that Tsega’s interaction with his visitors and his whereabouts after they left assumed any importance. I find that there is no reason why Charczuk would have remembered the events of that evening with any clarity. She thought that Tsega was in the house when the visitors arrived; this is clearly wrong, based on the uncontradicted evidence that he entered the house with them, after having been out for several hours, smoking with Butler and then eating pizza in the Explorer. As I will find below, she also was mistaken in her recollection of that the visitors left without Tsega. She could have been equally mistaken in remembering a statement about going to Montreal. Alternatively, X, Y and Z could have lied about going to Montreal to provide an alibi for their whereabouts after they left the house.
118In any event, given that Charczuk could not remember or was mistaken about critical details of the visit by X and the others, given the lack of any reason why she would have paid attention to the interactions between Tsega, Josh Jackson and the visitors, and given the stressful situation in which she provided the statement, I place little weight on Charczuk’s evidence about what she saw or heard that evening.
119I find, based on the evidence of Y and Z, that Tsega accompanied them back to the Explorer and then drove with them to Moodie Drive. Their evidence on this point was not challenged in cross-examination.
120This evidence is also consistent with records from Rogers showing the cellphone towers that handled calls and texts to and from the cellphones used by Tsega, Y and X on February 21, 2010. According to the Roger’s representative Fortier, a cellphone’s signals are usually transmitted by the tower closest to the phone. With one exception, the tower that handled Tsega’s communications that evening is located at 4075 Fallowfield Road, just north of both his house and the Butler house. At 11:14 p.m., however, Tsega exchanged texts with his brother Josh, the transmission of which were handled by a tower located at 1159 Moodie Drive. This tower is located due north of the Moodie Drive house.
121Fortier acknowledged that the tower that is geographically the closest to a cellphone does not always transmit the communications from that phone, depending on factors such as topography, weather and overall user demand. As a result, the tower data might not definitively establish, by itself, that Tsega travelled to the Moodie Drive house shortly after 11:00 p.m. on February 21, 2010. The data does however corroborate Y and Z’s evidence on this point.
122Once they were back in the Explorer, Y followed directions provided by Tsega from his house to Moodie Drive. When they approached the Moodie Drive house, Tsega told him to slow down, and he pointed to it. Y pulled into a layby just past the house, did a u-turn and drove Tsega back to his house to drop him off.
123Y and Z did not recall any discussion with Tsega during the drive.
The trip back to Moodie Drive and entry into the house
124Y testified that, after dropping Tsega off at his house, he, X and Z drove in the Explorer back to the Moodie Drive house. They parked in the same layby they had used earlier, left the car and walked through the woods to the house.
125Just before they got out of the car, Z got cold feet. Y’s account of the exchange that followed is again revealing of what he expected would happen inside the house:
Q: Okay. Tell us about that?
A: He [Z] started saying, yo man. I don’t wanna — I don’t wanna — you should hold the gun. You should do it. I don’t wanna — I don’t wanna do this.
Q: Okay.
A: And like, we’re like, we came this far. We’re gonna go through with it. And then he said, you take the gun then, I’ll do the talking — or I’ll — I’ll do the muscling.
Q: Okay.
A: If anything happens, I’ll be the one to, like, do the talking or whatever, and you aim the guns.
126As a result, when they exited the Explorer, X carried his gun and Y carried Z’s Sig Sauer.
127Y testified that, as they approached the house, they heard music and saw lights shining from the upper stairs window. They opened the unlocked back patio door and went inside with their guns drawn.
128Y testified that they wandered before going upstairs to find a safe and “to get a feel for the house”. They first went downstairs to the basement and saw a room with a ping-pong or pool table as well as a sauna room. It was “a little dark” but there was a hallway light on. Y stated that they came back upstairs using the second set of steps leading to the garage. From there, they went up to the living room on the middle floor, then to the second floor.
129Z testified that they walked around downstairs only briefly before going up to the second floor and storming into Swan’s bedroom. He said that Y went to the basement while he stood halfway down the stairs. He had no recollection of being in the garage at any point.
130Because I generally find Y’s evidence to be more reliable than that of Z, I conclude that all three men walked briefly through the main floor and into the basement, through the garage and back into the house, before going up to the second floor.
The storming of Swan’s bedroom and its aftermath
131The robbery involved a violent armed attack in the middle of the night eleven years ago. It happened very fast and was traumatic for those involved. It is not surprising, in the circumstances, that witnesses to these events did not always agree on some of the details. An added complication is that I am relying on transcripts of testimony by Scott, Tanguay, Vergette and Smith. This makes it more difficult to determine, when accounts diverge, whose testimony is more reliable.
132Fortunately, the evidence about what occurred is largely consistent. I will review the events and refer to specific testimony only where necessary.
133Swan had moved into the house in the spring or summer of 2009. The house was rented by Vergette. His cousin Smith became the third housemate in December 2009.
134Scott and Tanguay were watching hockey in Swan’s bedroom with Swan and other friends until around midnight. The other friends left to go home after the first game. Vergette and Smith were in their rooms in bed. Tanguay, Swan and Scott remained in Swan’s room watching another hockey game.
135Just past midnight, Y, X and Z entered the room wearing black clothing, masks and gloves. Two of them were carrying guns. They yelled at Scott, Swan and Tanguay to get down on the ground. According to Scott, they were also ordered to get rid of their cell phones. They did as they were told.
136The assailants were asking: “Where’s the money? Where’s the weed?”. According to Scott, the men focused on Swan, referring to him as “the drug dealer”. In response, Swan said either “I don’t know” or, as Tanguay recalled, “I have nothing”. Scott saw him reach towards something on the floor and [ ] shot him through the shoulder, killing him almost instantly. This happened within seconds after the men first entered the bedroom.
137After Swan was shot, the men continued to question Tanguay and Scott about the location of money and drugs. Scott testified that, in speaking to her, Y referred to her as “the girlfriend”.
138Either X or Y asked if there was anyone else in the house. Tanguay said that there were two other people living there and pointed to the rooms occupied by Vergette and Smith. The intruders broke down the doors to these bedrooms and ordered Vergette and Smith, together with Scott and Tanguay, to get into a spare bedroom down the hall.
139X, Y and Z took turns standing guard at the door of the spare bedroom while the other two searched other rooms on the second floor for money and drugs. Y testified that they had no idea where they might be hidden. They did not find the quantities of marijuana or cash that they had expected; police later found 1474 grams of marijuana untouched in the hidden cabinet in the bathroom. Still, in Y’s view, the robbers located “a nice amount” as well as some gaming equipment and cellphones.
140After ten or fifteen minutes, Y told Scott, Tanguay, Vergette and Smith that he was taking them down to the basement. He led them downstairs and into the garage, then down the stairs from the garage to the basement and into the sauna room. He threatened that, if they stepped out of the sauna to call the police before ten minutes had passed, he would kill them.
141According to Y, X and Z accompanied the group downstairs. He left them guarding the sauna room while he went to get the car. Z’s evidence was consistent with this account. Scott and the other occupants of the house had varying recollections of who led them downstairs and what exactly happened between the time they got downstairs and the men left. Nothing turns on this.
142There was conflicting evidence on two relevant points. The first was Y’s familiarity, or lack thereof, with the layout of the house. Vergette testified that he had the impression that Y did not really know where he was going because he did not take the most direct route to the basement. Scott and Tanguay similarly recalled that, as they were on their way down to the basement, they told Y that he was going the wrong way, because he was leading them through the garage instead of taking the more direct route from the family room. According to Scott, Y replied that he knew where he was going. Tanguay testified that Y even said that he had been to the house before.
143During his testimony, Y did not mention any exchanges about the route. He said that he led the way to the basement using the route he had discovered in wandering around prior to going to the second floor. He denied any knowledge of the floorplan of the house prior to the robbery.
144The second issue about which there is conflicting evidence is what, if anything, Y told Scott and the others about where he was taking them before starting towards the basement. Scott and Smith both recalled that Y specifically mentioned the sauna. Vergette, on the other hand, recalled that Y looked around for a suitable spot to put them in only once they were in the basement.
145Y denied that he mentioned putting the group in the sauna room or that he had a specific location in the basement in mind as they went downstairs.
146A few minutes after the three men left the house, Scott and the others went upstairs, phoned 911 and waited for the police and ambulance to arrive.
147When the police arrived at the Moodie Drive house and found out that the robbers had stolen Scott’s phone, they contacted her service provider so that the signal could be tracked. The police stopped the Explorer and arrested Y, X and Z about an hour later as they drove back to Toronto. The police seized a garbage bag in the back of the vehicle containing several cellphones, a gaming console and some games, a computer, $3300 in cash, and 1923 grams of marijuana in ziplock bags and clear plastic containers. They also seized two dark sweatshirts worn by Y and X, the latter bearing an Ohio State logo.
Tsega’s discussion with Alec and Connor Buchanan
148A day or two after Swan’s death, Tsega had a discussion with Connor and Alec Buchanan during which he admitted that he provided X, Y and Z with Swan’s address but claimed that he did so after being threatened with bodily harm.
149Connor and Alec Buchanan each testified about a discussion they had with Tsega a few days after the murder.
150Connor testified that he learned that Swan had been killed while at school on February 22. He phoned Tsega, who said that he had heard the news as well and suggested that Connor come to his place. During the hours they subsequently spent at Tsega’s house that day, Tsega did not mention his interaction with X, Y and Z the night before.
151A day or so later, Connor learned that X had been arrested for the home invasion and Swan’s death and saw his picture in news reports. He looked up X on Facebook and confirmed that he was Tsega’s friend [ ], whom Connor had met when he visited Barrhaven. Connor told his father, Alec, what he had learned. The next day, Alec said that they should talk to Tsega. Connor telephoned Tsega, who agreed to meet for a discussion between the three of them.
152Alec provided a similar account during his testimony, except in one respect. Alec recalled Connor telling him that Tsega was constantly phoning, wanting to talk to him. Alec told him he should respond and find out what Tsega wanted. Connor then phoned Tsega, who asked to talk to him, to explain what happened. Alec was not comfortable with the idea of Connor meeting with Tsega alone, so accompanied him to Tsega’s house. He recalled that Tsega was surprised when he arrived with Connor.
153In cross-examination, Alec was confronted with phone records that contradicted his recollection that Tsega repeatedly tried to contact Connor. The records showed the opposite: Connor attempted to reach Tsega by phone at 5:52 p.m. on February 22, then five more times the next day. All of these calls went to voicemail. Alec agreed that he might have a faulty memory on this point or that Connor could have lied, at the time, about Tsega’s efforts to initiate a conversation. Either way, this memory lapse or misapprehension does not significantly undermine the reliability of Alec’s testimony, because it deals with a peripheral detail.
154When they went to Tsega’s house, they sat together in the living room. Tsega almost immediately said: “I have to tell you guys something”. He then related that X arrived at his house with friends and, once they were in Tsega’s bedroom, one of them said: “Give me the name of the guy you know, give me his address, or I will bang you out right now.” Tsega made a shooting motion when he recounted the threat to “bang him out”. He said that, when he was threatened, he looked at X, who said that these guys were “bangers” and that he should give them the address. Tsega gave them Swan’s name and address and they left.
155Alec’s recollection of Tsega’s account were slightly different and more detailed. X had apparently called Tsega to say he was coming to town to celebrate his birthday and told him that he wanted to stop and see him on the way to Montreal. X told Tsega that would wait at his house until he got back from work. When Tsega got home and went upstairs to get changed to go out, X and the others followed him to his bedroom. They asked him aggressively “where is this dealer at” and wanted his address. Tsega said he refused to give the address, because Swan was a friend. One of them then threatened to “put a bullet through his fucking head” and kill his family if Tsega did not give them the information. Tsega relented and gave them the address. Alec recalled that Tsega indicated that one of the three guys, “Willy”, was “a little psycho”.
156Connor and Alec both testified about asking Tsega why he had not let them know what was happening after the robbers left his house, so they could have warned Swan. Tsega said he was scared of putting his family in danger. He did not want to tell the police about his involvement for the same reason. Alec also recalled that, during their conversation, Tsega was “white as a sheet” either from anxiety or fear.
157Alec told Tsega that he could be an accessory to murder. Tsega phoned his brother Josh, spoke briefly to him, then handed the phone over to Alec. Alec told Josh that Tsega must speak to the police since he had relevant information and would look complicit if he did not come forward. Like Tsega, Josh said he was scared of what the perpetrators of the robbery might do to his family if Tsega made a police report. Alec told Josh that, if Tsega did not come forward, Alec would go to the police himself. He gave Tsega the same ultimatum.
158On April 27, 2010, Alec took Connor to make a statement to the Ottawa police. In the meantime, he told Connor not to talk to anybody about it, because he was trying to figure out if Tsega was telling the truth. He was also concerned for Tsega’s safety if Swan’s friends, including his own son Tyler, found out about his involvement in the robbery and murder. This played into his decision to go to police only after Tsega moved to Toronto in late March or early April 2010.
Tsega’s actions after the home invasion
159Connor and Butler testified that Tsega abruptly cut off contact with them after Swan’s murder.
160Connor testified that, after the discussion with his father and Tsega, he tried to contact Tsega repeatedly to speak to him again. He had trouble doing so, even though, up until then, they had spent time together several times a week. When they finally got together to talk, Tsega gave non-committal answers to Connor’s questions and his suggestion that Tsega speak with Swan’s parents. According to Connor, this talk was the last time he saw or spoke to Tsega outside of court proceedings.
161I accept Connor’s evidence that Tsega “ghosted” him. Connor was not a neutral witness. He, like his brother Tyler, admitted that they think Tsega bears more responsibility for Swan’s death than [ ], who killed him, and that they would like the Crown to secure a conviction. There is no indication, though, that Connor lied or exaggerated to put Tsega in a more negative light. In my view, he testified based on his sincere recollection of events.
162Butler gave a similar account. Prior to the robbery, Butler said that he had socialized with Tsega roughly once a week. After February 21, he never saw Tsega again, and spoke to him only once, on February 22.
163There was evidence at odds with Butler’s account. In a police interview in August 2010, Butler said he had last seen Tsega a month or two earlier. Butler attempted to explain this by saying he did not give much thought, during the interview, to how much time had actually passed since February. But Butler was generally not a very credible witness. He acknowledged that he had a poor memory of 2010, which he ascribed to his heavy drug use at the time. For example, when he was first interviewed by police, he did not remember hanging out with Tsega on February 21. His memory about this returned only after he listened to the Pizza Pizza recordings in a further police interview in November 2010.
164In light of Butler’s lack of reliability, I do not put any weight on his account of his interactions (or lack thereof) with Tsega after February 22, 2010.
165Tsega moved from Ottawa to Toronto in March or April 2010, where he remained until he was arrested in September. Based on Jackson’s intercepted phone conversation with Tsega on August 10, 2010, he wished to avoid being interviewed by police. He and his mother discussed what he would say if he were interviewed. Tsega suggested, first, that Jackson should tell the police that he was “disabled and what not”, or that he was at a “critical” time in his education. Jackson pointed out that he was not, in fact, enrolled in any courses at the time.
166When asked about Tsega’s departure from Ottawa after the robbery, Jackson provided various explanations for it. She mentioned concerns that those responsible for Swan’s murder would target Tsega if they found out he was assisting the police. She speculated that the Hell’s Angels or another gang might have been supplying Swan with drugs, based on media reports in February that Swan’s murder, and other deaths in Ottawa around the same time, were being investigated by the police’s “guns and gangs” unit. Alternatively, she suggested that Y or his associates could have criminal ties.
167These explanations are not convincing. There was no credible basis for any belief that Swan had any connection to organized crime. The people arrested for his murder were, to Jackson’s knowledge, two of Tsega’s childhood friends and a third man from Toronto. If she was scared of their potential gang associations, it made no sense that, in order to protect Tsega, she would send him to the place where they lived.
(c) Has the Crown proved that Tsega was party to an agreement to commit the robbery?
168I find, based on the evidence at this trial, that Tsega’s participation in the robbery was limited to the assistance he provided to X, Y and Z on February 21, 2010, specifically, his accompaniment of them to Moodie Drive in the Explorer to show them how to find Swan’s house.
169Although I find that Tsega, X and Y talked about the possibility of robbing Swan in December 2009, I do not find that they reached an agreement to engage in any wrongdoing at this point. It was just an idea. Y himself did not take it very seriously at the time.
170The actual plan to rob Swan was developed between X, Y and, later, Z, over the next few weeks. There is no direct evidence that Tsega was involved in this planning or was aware that any plans were being made.
171Y testified that, in early 2010, he learned from X that the supplier’s last name was Swan, that he lived in a house in Ottawa, and that he had a girlfriend who was there often.
172Y denied knowing the source of X’s information. He assumed it was Tsega. This is a fair assumption, given that X had no other apparent source for information about Swan. Since Tsega referred only to Swan’s first name during the discussion at Christmas, X could not have identified Swan without following up with Tsega.
173The fact that Tsega shared Swan’s last name with X, however, does not prove that he knew about the robbery plan or was involved in it. It is possible that X asked Tsega for Swan’s surname on the pretext of following up on Y’s interest in making a drug purchase from Swan. Once he knew Swan’s surname, X did not need any help from Tsega to find his Facebook page and see the photo of Swan with his two dogs.
174I am not persuaded, based on Y’s testimony, that he had any other meaningful information about Swan’s living situation prior to the night of the robbery. I approach all of Y’s testimony cautiously. There is no reliable corroboration for his assertion that he knew Swan lived in a house, as opposed to an apartment or some other type of housing, prior to his arrival at 4139 Moodie Drive on February 21, 2010. Although Scott testified that Y identified her as Swan’s girlfriend during the robbery, I do not find this compelling evidence that Tsega provided X with information about Swan’s living situation. It is just as plausible that Y made an assumption about Scott’s relationship with Swan based on her presence in his bedroom after midnight and her reaction after he was shot.
175For the reasons already mentioned, I reject the Crown’s suggestion that Tsega tried to obtain information about the Moodie Drive house by attending a New Year’s Eve party. I do not find, in any event, that Y, X and Z had any particular insight into the layout of the house prior to the robbery, or that they knew about the sauna in the basement. If they had known more about the layout, Y would have taken the usual route to the basement instead of the less direct path through the garage.
176I also do not accept as reliable Scott and Smith’s recollection that Y mentioned the sauna before taking them to the basement. Both of these witnesses had a flawed recollection of other details about the trip downstairs. Scott did not recall that Z and X accompanied them downstairs. I find that they must have, because one or both of them had to guard the door while Y went to get the car. Smith thought that they had been led downstairs by someone other than Y. This contradicts the evidence of every other witness, including Y himself.
177In the alternative, if Y did mention the sauna before the trip down to the basement, this could have been based on his walk through the lower section of the house when they first arrived.
178In light of the absence of evidence that Y, X and Z had any meaningful information about the Moodie Drive house or its occupants prior to the robbery, I do not find that Tsega assisted or was involved in its planning prior to February 21, 2010.
179This leaves us with the question of the assistance that Tsega provided that night.
180It is unclear that Tsega realized, when he phoned in an order for pizza for his friends [ ] and [ ], that they were coming to Barrhaven that day for a nefarious purpose. If he had, he seems unlikely that he would have advertised their expected visit to his friend Connor.
181The situation changed dramatically when Tsega was picked up on his way home from Butler’s house. On the evidence, I find that he realized, as soon as he climbed into the Explorer, that X, Y and Z had not driven from Toronto to go partying with him.
182Y testified that Tsega was “spooked out” and did not want him to park the Explorer right in front of his house. Both Y and Z said that Tsega was visibly nervous and stammering or stuttering. He initially refused to let Y and the others come into his house. He relented only when Y insisted and spoke to him a menacing way. Y described this exchange as follows:
We — we asked to come in, he was hesitant, at first, to letting us come in, and we were said, yo, like, we gotta — I gotta use — I really had to use the washroom. I was like becoming very nervous. And I’m like, like fuckin’ let me go and use the washroom here — and he’s like okay.
183According to Y, when X later asked Tsega to show them where Swan lived, Tsega’s immediate reaction was to ask why. This further demonstrates his suspicion about the group’s intentions.
184Although I approach Y and Z’s testimony with caution, I accept their evidence about Tsega’s manner that evening. Y’s testimony about Tsega not wanting to be seen with the group from Toronto is corroborated by a comment made by Tsega captured at the beginning of the recording of his second call to Pizza Pizza. Tsega is heard to say, as an aside to someone else: “’Cause I have a snoopy ass fucking neighbor that watches me and I don’t wanna fucking do this right now. Like I’m really fucking blessed.” Tsega’s nervousness is also evident from his tone and manner during this call.
185Tsega’s sudden change of heart is significant. X was an old friend. He and Tsega had vacationed together with X’s extended family a few weeks earlier. In his texts while the Explorer was en route to Barrhaven, Tsega had referred to Y by his nickname and enthusiastically talked about ordering food for them. He talked to Connor about how they might all go out together.
186Tsega’s nervousness and reluctance to be seen with his friends from Toronto does not make sense unless he realized, when they arrived, that Y, X and Z were in Barrhaven for a non-innocent purpose. On seeing the “game-faces” worn by X and Z and that Y was nervous and twitchy, I infer that Tsega remembered the conversation he had with Y and X at Christmas about robbing Swan, and made the connection between that conversation and the decision to drive from Toronto to Barrhaven that evening. There is no other rational explanation for his sudden and unexpected attempts to avoid being seen with them and to keep them out of his house.
187The defence argued that Tsega had probably forgotten the discussion at Christmas due to his brain injury and the fact that he, X and Y were all high when it occurred.
188Although Y admitted that he had been consuming marijuana on the day of the Christmas discussion, he did not say that this prevented him from remembering that it occurred. He simply said that he did not take it seriously at the time.
189Y testified that Tsega and X were giggling. Like Y, Tsega was smoking marijuana. This was something which, according to his friend Connor, he was doing regularly during this period. I have no basis to assume that Tsega was more impaired by drugs that day than Y or that his consumption of drugs that particular day would cause him to forget that the conversation occurred.
190There is conflicting evidence about the impact of Tsega’s brain injury. Jackson said that he had to be accommodated at school and did not, on graduating high school, have good enough marks to get into university. Charczuk stated that Tsega had a poor short-term memory. As she put it, he was not someone you wanted to leave a phone message with.
191I have already concluded that I can place no weight on Jackson’s evidence. I also have significant concerns about Charczuk’s evidence. Neither said when Tsega was injured, an no medical or school records were produced to substantiate his impairment. Charczuk’s evidence does not establish that Tsega’s memory was so compromised that he would forget significant events. It is easy to forget a phone message. Forgetting an entire conversation with friends, during which the potential robbery of an acquaintance is discussed, even in a light-hearted or joking way, is something else entirely.
192Other evidence suggests that Charczuk exaggerated the extent of Tsega’s cognitive issues. Jackson admitted that, after re-taking some courses, Tsega was admitted to Carleton University and took courses there for over two years. Although Connor spent far more time with him than Charczuk, he did not notice any serious impact on Tsega’s day to day life. He said that Tsega got additional time in school to write tests and would sometimes forget things. But, according to Connor, Tsega did not have an impairment that anyone would notice in meeting him casually. Alec Buchanan, who coached Tsega’s lacrosse team, acknowledged that he had a serious head injury after being hit on the head with a hockey puck, and that he had to take a year off playing sports. He described the long term effect of the injury by saying, however, that Tsega had a “little bit” of brain damage, which again does not imply that Tsega was compromised in a significant way.
193I do not find, on the evidence before me, that Tsega suffered from cognitive difficulties that were likely to have caused him to forget the entire discussion about robbing Swan. And, as I have already stated, Tsega’s recollection of that discussion is the only rational explanation for his abrupt change of heart about X and Y’s visit.
194Inside his house, Tsega provided Y, Z and X with some clothing including the Ohio State sweatshirt that X was wearing when he was arrested a few hours later. The circumstances in which Tsega provided the clothing, however, and what exactly he gave them, are unclear. Y testified that he was shivering, either from nervousness or cold, and demanded that Tsega give him a sweater. In cross-examination, he admitted that he had no memory of Tsega handing him any clothing and that he may have simply picked the shirt up off the floor or found it in Tsega’s closet. Similarly, Z said in his examination in chief that Tsega gave him a balaclava and sweatshirt, but admitted in cross-examination that he could not remember if clothing was handed to him by Tsega or someone else, or whether he might have brought a mask with him from Toronto.
195I accordingly cannot conclude that Tsega provided clothing to the robbers or that, if he did so, he provided so that they could camouflage their identity.
196This leaves the one concrete action taken by Tsega to assist with the robbery, that is, driving to Moodie Drive to show Y and the others where Swan lived. I accept Y and Z’s evidence that he did so. They were not challenged on this point in cross-examination, and it is consistent with the cellphone tower data. Tsega told Connor and Alec Buchanan a few days later that he provided X and his companions with Swan’s address. I find that he went beyond this and showed them exactly how to get there.
197This gives rise to two questions: Is this level of participation enough to trigger party liability under s. 21(2)? And is there evidence that Tsega intended to assist in the plan to rob Swan or even realized what Y, X and Z planned to do?
198On the first question, an agreement to provide assistance in committing an offence does not have to be made far in advance, and an intention to assist can be proved by evidence of actual assistance provided. There is no minimum threshold for assistance sufficient to engage party liability under s. 21(2) either in the wording of the provision or in the caselaw on it, so long as the other two elements of the offence are proved. In my view, the assistance would have to be critical in some way to carrying out the principal offender’s unlawful purpose. It could not be something trivial or incidental. Had Tsega’s involvement been limited, for example, to feeding the robbers pizza and letting them use the bathroom in his house, this would not engage his liability.
199In this case, directions to the Moodie Drive house were absolutely essential to carry out the plan to rob Swan. None of the robbers knew his address or how to get there. Without Tsega’s help, they would have to return to Toronto empty-handed.
200This case bears some resemblance to R. v. Kelly, 2017 ONCA 920. In that case, the accused was allegedly the getaway driver for two armed men who attempted to hold up an illegal poker tournament. A scuffle broke out and someone was shot. The trial judge directed an acquittal on the basis that the accused’s role in the crime could not attract any criminal liability. The Court of Appeal disagreed, finding that this was the quintessential example of a situation where party liability pursuant to s. 21(2) could arise. It held, at para. 27, that the accused’s potential liability “did not turn on the specific role he played in the robbery plan”.
201In cross-examination, Y acknowledged that, if they had had Swan’s address, they would not have had to meet with Tsega for any other reason. It does not matter what might have happened, though. What matters is what did happen. The robbers needed Tsega’s help in showing them where Swan lived, and he provided it.
202I therefore find that Tsega’s assistance in directing X, Y and Z to the house could engage his liability under s. 21(2).
203This bring us to the second question: did Tsega provide the assistance intending to further the common purpose of robbery?
204The defence argues that there is an innocent explanation for Tsega’s participation. In cross-examination, both Y and Z said that there were no conversations about the robbery in Tsega’s presence on February 21, 2010. The defence argues that this shows that he had no insight into the plan. I am therefore asked to infer that Tsega may have provided directions to the Moodie Drive house without understanding why he was being asked to do so. It is plausible, according to defence counsel, that Tsega thought that the group from Toronto intended to purchase drugs from Swan, that they were simply “casing the joint” for some future purpose, or that they intended to break in to steal drugs and money but not confront the occupants of the house.
205Notwithstanding the able arguments of defence counsel, I conclude that these arguments do not withstand serious scrutiny.
206The theory that Tsega might have believed that X, Y and Z were there to buy drugs from Swan makes no sense. If so, there is no reason why they would not have asked him to knock on the door of the Moodie Drive house while he was with them, so that he could introduce them. It is also at odds with Y’s evidence about Tsega’s nervousness during his interactions with the three visitors from Toronto, and his attempts to avoid being seen by the neighbors with them or to let them into the house. Based on this evidence, I have already inferred that he realized they were there further to the discussion about a robbery two months earlier.
207It is similarly implausible that Tsega would have believed that X and Y asked him to drive with them to the Moodie Drive house just to “case the joint”. The drive from Toronto to Barrhaven takes more than four hours each way, and they would not have to bring Z along for this purpose. Tsega could not have credibly believed that X, Y and Z would make this trip just to eat pizza in the car with him on a Sunday night and then drive back in the middle of the night.
208This leaves the question of whether Tsega plausibly could have thought that X, Y and Z intended to break into the Moodie Drive house to steal drugs and money without any intention of confronting Swan or the other occupants.
209Y himself testified that this was a possibility. He said that, if he, X and Z had found drugs or a safe on the first floor of the Swan house, they would have taken them and avoided a confrontation. Z specifically denied that they went into the house looking for a safe, but referred vaguely to looking for boxes of drugs on the main floor before going upstairs.
210I do not find Z and Y’s evidence on this point remotely credible. The group arrived in Barrhaven armed with two loaded handguns. Y had enlisted Z as an additional gunman. This would have been unnecessary if the plan was to break in and steal money or drugs surreptitiously. Z’s suggestion that there would be boxes of drugs lying around is fanciful. The idea that Y could carry a safe out of the house is also unrealistic, as well as inconsistent with Y’s decision to park the Explorer a distance away for the house.
211If stealing from the house without confronting the occupants had been the plan, I would have expected that Y, X and Z would have asked Tsega where Swan kept his drugs and cash. There is no evidence that they did. In cross-examination, although Y maintained that X had mentioned something about a safe prior to the robbery, he had no recollection of any details. As someone experienced in the drug trade and as a matter of common sense, Y would not have expected that Swan would leave quantities of drugs and cash out in plain view in a common area of the house.
212Defence counsel argued that, whatever Y and Z may have understood, Tsega may have had a different understanding. Unlike Y, Tsega did not have a criminal record and his involvement in the drug trade was far more modest. He did not know that X and Z were armed and did not realize, when X suggested that they rob Swan, that this could include the use of force.
213I do not accept this argument. I find that, given what he knew, Tsega could not have plausibly believed that X, Y and Z would steal drugs and money from the Moodie Drive house without confronting anyone. Locating any significant amount of money and drugs in the house necessarily involved getting information about their location from Swan or restraining him and anyone else who was present while a search was underway.
214Tsega had been to the Moodie Drive house and knew it was very large. In addition to a living room, kitchen and family room on the main floor, there were four bedrooms and a bathroom on the second floor, a large basement and a garage. I infer that Tsega knew that X, Y and Z would not find a large haul of drugs or cash lying in plain view in the common areas on the main floor of the house. Every witness who spent time in the Moodie Drive house testified that Swan kept only small amounts of marijuana on display to share with friends in his bedroom. Even his close friend Tyler Buchanan did not know about the hidden cabinet in the bathroom that Swan used as a storage place.
215The Moodie Drive house was also widely known as a social hub with many people coming and going at all hours of the day and night. I infer that Tsega knew, based on his familiarity with Swan’s social circle and attendance at parties at the house, that Swan shared the house with other people and that there were often visitors there, as well. Derrick, Tanguay and Scott testified about the steady stream of friends and customers who regularly came to the house. On the evening of February 21, 2010, there were many vehicles parked outside. The testimony of Scott and Tyler establishes that four people were leaving the house after the first hockey game, when the Explorer drove past the house for the first time. This is consistent with Z’s account of what he saw.
216The presence of many people in the Moodie Drive house made it even more unlikely that someone (or, in this case, three grown men) could break in and steal drugs and cash surreptitiously.
217Given the size of the house, the hidden location of any significant quantity of drugs and cash, and the presence of people up and about in the house, Tsega could only have believed that a robbery could take place without confrontation by being willfully blind to the realities of the situation.
218Willful blindness can substitute for actual knowledge where an accused’s “suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries”; R. v. Briscoe, 2010 SCC 13, [2010] 1 SCR 411, at para. 21.
219We know that Tsega’s suspicions were aroused because Y testified that, when X asked him for directions to Swan’s house, Tsega’s immediate reaction was to ask why. In response, X told him not to worry. There is no evidence that Tsega made any further inquiries. Both Y and Z testified that he said little or nothing during the trip to Moodie Drive.
220I accept Y’s evidence about Tsega’s question (“why?”) and X’s response (“Don’t worry”). The defence relies on this exchange to show that Tsega knew nothing about the robbery plan. I infer something different from it, based on the evidence that Tsega’s conduct after he was picked up in the Explorer. I find that his suspicions were justifiably aroused, but he chose not to make further inquiries, because he did not want to have his suspicions confirmed. This is a textbook example of willful blindness.
221In determining whether Tsega participated, I may also take into account the evidence of his post-offence conduct and, in particular, what he told Alec and Connor Buchanan a day or two after the murder.
222For reasons I will explain further when I consider the defence of duress, I conclude that the story that Tsega told the Buchanans about a threat allegedly made to him by Y on February 21 was a fabrication.
223Evidence that an accused has fabricated an alibi or excuse may, in some circumstances, support an inference of guilt. A post-offence exculpatory statement that is merely disbelieved is not evidence that strengthens the Crown’s case; R. v. Wright, 2017 ONCA 560, at para. 38; R. v. Laliberté, 2016 SCC 17, at para. 4. If, however, the Crown can establish, through extrinsic or independent evidence, “that an exculpatory statement was fabricated or concocted to conceal involvement in the offence”, then the statement can support an inference of guilt.
224The Crown has established, through the intercept evidence and the evidence from the bail hearing in November 2010, that Tsega’s story about the alleged threat by Y was one of a series of excuses he offered, or tried to offer, in the months after Swan’s murder, to avoid inquiry into his role in the robbery. These excuses were as follows:
(1) X, Y and Z visited that night, Y threatened him and he disclosed Swan’s address (the story he told Alec and Connor a day or two later);
(2) He had no contact with X and the others at all on February 21, 2010 (his suggestion to his mother during the August 10 call, before she reminded him that this would not be believed because Josh and Charczuk had seen X);
(3) X and the others visited briefly as they passed through on their way to Montreal, and Tsega had no idea where they went when they left (the story mentioned in the August 10 intercept, and again during another call between Tsega and his mother intercepted on September 24, 2010; and
(4) X, Y and Z visited that night, X threatened him, and he disclosed Swan’s address (the evidence given by his mother at his bail hearing in November 2010).
225I conclude that the account that Tsega related to the Buchanans is a fabrication because, among other reasons, the evidence shows that he later advanced three other versions of events that are inconsistent with a threat by Y. The story about the threat is fundamentally incompatible with a version of events in which Tsega did not see X and the others at all that evening. It is also incompatible with the idea that they departed from his house saying they were going to Montreal, instead of using the information obtained through the threat to go to Swan’s house. Finally, if it was X who threatened him rather than Y, then his story to the Buchanans about the threat by Y must have been fabricated.
226The Crown has also suggested that Tsega’s departure from Barrhaven after the murder, the closing of his cellphone account, and his ghosting of his friend Connor, is post-offence conduct that supports an inference of guilt.
227I find that, in all likelihood, Tsega avoided any further contact with Connor because he did not want to discuss the events of February 21 and, in particular, the alleged threat. So the ghosting of Connor is, in effect, an extension of the fabrication, and does not really add anything.
228I do not make any inference based on Tsega’s flight from Ottawa or the closing of his cellphone account. This is due to the role played by his mother in these events. The phone was in Jackson’s name. Charczuk furthermore testified that it was Jackson, not Tsega, who arranged for his move to Toronto. Jackson also implied as much during her testimony. I accept Charczuk’ evidence on this point Jackson’s as well, given that it is consistent with her intercepted phone discussions.
229Since it was Tsega’s mother rather than Tsega himself who orchestrated his departure from Ottawa and the cutting of cellphone contact, it proves nothing about his state of mind. Based on the August 10 intercept, he clearly wanted to avoid a police interview. But a mere lack of willingness to cooperate with a police investigation does not necessarily give rise to an inference relevant to a determination of guilt.
230Finally, the defence contended that Tsega could not have been a party to the plan to rob Swan because there is no evidence that he would have shared in the proceeds of the crime, and he had no motive to harm Swan.
231Both Y and Z testified that they expected to split the money and drugs they stole from Swan with X. They had no expectation that Tsega would get a share. This is borne out by what happened after the home invasion. X, Y and Z began driving back to Toronto without stopping at Tsega’s house again to give him any of the stolen drugs or money or even the clothing they had borrowed from him.
232There is also no convincing evidence that Tsega had other financial incentives for the robbery. He and Swan were not business rivals. According to Scott, Swan quit his job in late 2009 and was supporting himself solely on revenues from his drug sales. Derrick testified at length about Swan’s success as a marijuana dealer. By contrast, according to Connor and Butler, Tsega sold only modest amounts of marijuana, enough to subsidize his own purchases but not more. His source of income was his job at a local sporting goods store. The evidence does not establish that Tsega owed Swan any money.
233The absence of financial motives on Tsega’s part does not, however, preclude his participation in a plan to rob Swan. As already noted, “a party to an offence under s. 21(2) does not need to share the same motives or desires as the principal”; Caddedu, at para. 57. Tsega could have been motivated to assist X and Y because they were old friends, or because he wanted to impress them, or because he was intimidated by them. If I conclude that Tsega intentionally participated in the planning of and preparation for the home invasion, I do not need to identify why he did so.
234Having considered the whole of the evidence, I conclude that Tsega participated in the February 22 robbery. He realized that X, Y and Z had travelled to Ottawa for an unlawful purpose, that is, to rob money and drugs from Swan. He could not have plausibly believed that this would not involve a confrontation with Swan and others at the Moodie Drive house, or he was willfully blind to the inevitability of a confrontation. When asked to assist in the execution of the robbery by showing its perpetrators where Swan lived, Tsega complied. His fabrication of a justification for his participation — the story about an alleged threat recounted to the Buchanans — supports an inference that he realized the implications of what he had done and sought to conceal his involvement.
235The defence argues that the evidence on an agreement leaves reasonable doubt. A reasonable doubt “is a doubt based on “reason and common sense”; it is not “imaginary or frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically connected to the evidence or absence of evidence””: R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at para. 28, citing R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 36.
236On the whole of the evidence, I am sure that Tsega assisted in the robbery and that he intended to do so, understanding that he was assisting with a robbery or, in the alternative, being willfully blind to the purpose for which he was driving over to the Moodie Drive house near midnight with X, Y and Z. There is no other plausible explanation, logically connected to the evidence or lack thereof, for his conduct on February 21, 2010 and his lie to the Buchanans about what he did.
237I conclude that there is no reasonable doubt that Tsega intended to assist X, Y and Z to rob Swan, and did in fact do so.
(ii) Was an offence committed?
238To prove the second element of the test under s. 21(2), the Crown must show that one party to the common unlawful purpose, in the course of carrying out the original agreement or plan, committed an offence that was not the offence the parties set out to commit but is nonetheless related to the original unlawful purpose; Caddedu, at paras. 59 and 60.
239The offence referred to in s. 21(2) is not confined to the offence of which the perpetrator is convicted but extends to included offences. As a result, where a party to an agreement for a common unlawful purpose commits murder, another party to the agreement may be convicted of manslaughter; R. v. Jackson, 1993 53 (SCC), [1993] 4 SCR 573.
240During the home invasion for the purpose of robbing Swan, [ ] murdered him. The murder was related to the original unlawful purpose. As a party to the agreement for that purpose, Tsega may be liable under s. 21(2) for the included offence of manslaughter.
241I therefore find that the second element of s. 21(2) is made out.
(iii) Was Tsega aware, or should he reasonably have been aware, that there was a risk of serious injury during the robbery?
(a) The knowledge requirement
242The knowledge or mens rea requirement for a conviction for manslaughter under s. 21(2) is an actual or objective awareness of a risk of harm that is neither transient nor trivial; Jackson, at para. 32.
243In Keepness, an accused directed, but was not present at, a home invasion. The purpose of the home invasion was a drug robbery. One of the occupants of the house was killed. The trial judge explained the knowledge requirement at para. 156, as follows:
The third element, knowledge, can be proven either by proving that the accused actually knew that one of the principals would probably commit aggravated assault or manslaughter in carrying out the original agreement or by proving that a reasonable person in the same circumstances would know that one of the participants in the original plan would probably commit such an offence. Again, the test is an objective test in relation to aggravated assault and manslaughter. The question in relation to both aggravated assault and manslaughter is whether a reasonable person, in the circumstances, would know that one of the principals would probably commit an unlawful act that would likely put another person at risk of some harm or injury that is more than brief or minor in nature. [Emphasis added]
244If the accused did not actually foresee the probable risk of injury, the Crown must prove that, placed in the same circumstances and with the same knowledge, a reasonable person in would have foreseen the risk.
(b) Has the Crown proved that Tsega foresaw the risk of harm?
245There is no way of knowing if Tsega subjectively anticipated a risk of serious injury when Y, X and Z entered the Moodie Drive house to rob Swan. There is no indication that he had any exposure to violent criminal activity prior to Swan’s murder. Although he sold some marijuana, it was mostly to fund his own habit. There is no evidence that he turned his mind to the possibility that, when the robbers confronted Swan, he or another person might be hurt or even killed.
246There is also no reason to think that Tsega bore any ill will towards Swan and the other occupants of the Moodie Drive house. On the contrary, Tyler Buchanan testified that he resisted the suggestion, during a police interview in November 2010, that Tsega might have assisted the perpetrators of the home invasion. He had known Tsega for years, both as his younger brother Connor’s friend and a lacrosse player whom Tyler and his father Alec had both coached. Tyler spent a lot of time at the house — it is, in fact, just by luck that he had left prior to the robbery on February 22 — and did not believe that Tsega would have helped plan a home invasion that targeted Tyler’s close friend Swan and Scott, one of Tsega’s former classmates.
247This evidence therefore supports the defence’s contention that Tsega subjectively did not realize that X and the others might hurt anyone. That is why he assisted them by directing them to Swan’s house, even though the victims of a robbery would target some people who were his friends.
(c) Has the Crown proved that Tsega reasonable ought to have foreseen the risk of harm?
248Even if Tsega did not subjectively realize that someone might get hurt during the robbery, the test under s. 21(2) is still met if the Crown has proved that a reasonable person, in Tsega’s circumstances, would have realized that the robbery gave rise to a serious risk of injury to someone.
249The Crown argues that the objective standard is met in this case because there is inevitably a risk that a home invasion for the purpose of a drug robbery or rip will give rise to violence and injury. The defence contends that a reasonable person, in the circumstances of this case, would not have been aware, because that person would not have known that X, Y and Z were armed with guns, nor would he have had any knowledge of their criminal records or affiliations.
250In Keepness, at para. 157, the trial judge found that a home invasion is an inherently violent and dangerous act:
The very nature of the crime undertaken, four people breaking into a house where drugs were being sold from, in the early morning hours, with the plan to rush the house and rob the occupants of drugs and money, carried with it inherent danger to the persons in the house and to the people committing the offence. The nature of such crime carries with it the reasonable foreseeability that a person would be put at risk of some harm or injury that is more than minor.
251The Crown relies on Keepness for the proposition that a home invasion has a serious potential for injury even if the perpetrators do not carry firearms.
252The facts in Keepness are markedly different than those in this case. The accused in that case orchestrated the home invasion, even though he did not participate in it. Further to the plan he devised, one of the home invaders knocked on the door of the house under the pretext of seeking to buy drugs and then, when the door opened, the other three people involved rushed into the house, attacking the occupants with knives. In those circumstances, injury was not a risk but a certainty.
253Aside from Keepness, the Crown relies on other cases where courts have found that drug purchasing activities carry with them an inherent risk of violence.
254In R. v. Simon, 2010 ONCA 754, two individuals came to a drug dealer’s house to buy some marijuana. The buyers got into a fight over drugs at the house and, during their struggle, one of them shot the drug dealer, killing him. A jury convicted the accused, one of the buyers, of second degree murder. In upholding the appeal, Watt JA wrote, at para. 1, that “Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. … People get hurt. People get killed.”
255But in Simon, once again, each of the buyers knew that the other carried a gun. This was also the case in R. v. Ceballo, 2006 37517 (Ont. S.C.) and R. v. Mooring, 2003 BCCA 199, 13 C.R. (6th) 283. The evidence does not establish that Tsega knew that X and Z were carrying firearms when they met with him before the robbery. I cannot infer that Tsega knew about the firearms based on his statement to the Buchanans about the alleged death threat. By the time Tsega made the statement, he would have known that Y had been armed because Swan had been shot.
256There are two decisions by the Ontario Court of Appeal that specifically refer to the possibility that a party’s liability for manslaughter under s. 21(2) could be engaged in circumstances analogous to the situation in this case.
257In R. v. Scott, 2013 ONCA 286, the Court of Appeal held that a risk of serious injury might be objectively foreseeable in the context of a home invasion drug robbery, even if the accused party did not know that the perpetrators were armed. In Scott, the target of a drug robbery was stabbed to death during a home invasion. Scott was not present during the home invasion but had facilitated entry into the victim’s apartment building by its two perpetrators. At a preliminary inquiry, Scott was committed to be tried for second-degree murder. The Court of Appeal granted the appeal from the committal, finding that there was no evidence that Scott subjectively foresaw the risk of serious injury. The Court nonetheless held that Scott could be found liable under s. 21(2), because, as it observed at para. 11:
Certainly, a home invasion robbery is inherently dangerous and can give rise to violence, which could ultimately result in harm to the victims.
258As a result, the Court substituted a committal for manslaughter, even though there was no admissible evidence at the preliminary inquiry that Scott knew the perpetrators of the home invasion were armed.
259In Kelly, the Court of Appeal again that, where the nature and the circumstances of the offence made it unrealistic not to anticipate possible confrontation, the knowledge requirement could be made out. As found by the Court at para. 29:
Given the nature of the robbery planned, and the number of people in attendance at the tournament, it would be reasonable for a jury to infer that the respondent knew that the robbers would be armed and prepared to overcome resistance in effecting the robbery. It flows from that inference that the jury could infer that the respondent knew or ought to have known that it was probable that one of the robbers would cause non-trivial harm to someone in the course of committing the robbery.
260Based on these principles set out by the Court of Appeal in Scott and Kelly, the body of caselaw that recognizes that drug robbery home invasions are inherently violent and dangerous, and the evidence in this case, I find that a reasonable person with Tsega’s knowledge of the circumstances would have realized there was a risk of serious, non-transient harm to someone in the house during the robbery. In reaching this conclusion, I rely on the same evidence that led me to find that Tsega must have known that the robbery of drugs and cash from the Moodie Drive house necessarily implied a confrontation with Swan and others who were there.
261Even if X and Y had not been carrying guns, there would have been a high risk of violence and non-transient injury as a consequence of that violence. When Z entered Swan’s bedroom that night, he testified that he immediately grabbed a bat he saw lying on the bed. This is not surprising. A group of people rushing into a house to take drugs and money from its occupants by force would naturally anticipate a need to overcome any resistance by the occupants and therefore the need for weapons. That is the very reason why Y and X brought Z, and his bigger and more intimidating gun, along with them.
262I do not rely on Jackson’s testimony that Tsega knew Y had been in a gang, because her evidence is generally unreliable. On the other hand, when speaking to the Buchanans a day or two later, Tsega said that Y, a.k.a. Willy, was “a little psycho”. Although I have rejected the version of events that Tsega gave to Alec and Connor that day, I accept that he described Y this way. Tsega did not know Z at all. His old friend X had his game face on. The last time that he, X and Y had all been together, X had mentioned the possibility of robbing Swan and Tsega had provided information suggesting he would be a good target.
263Whatever Tsega saw or heard when he got into the Explorer for the first time that evening instantly caused him to realize, or at least strongly suspect, that the robber would involve a confrontation of Swan and others. Tsega’s attempts to prevent the neighbours from seeing him with the gang from Toronto, and to prevent them from entering his house, show Tsega’s awareness of the situation, as does the question he asked X when he was told to direct them to Moodie Drive and his story he told to the Buchanans afterwards about disclosing the address only because he feared for his life.
264Given that the plan was to rob a drug dealer of cash and drugs hidden in an unknown location in a large house with many people inside, a reasonable person in Tsega’s situation would have anticipated that the robbery was inherently dangerous and could give rise to violence, which could ultimately result in harm to the victims.
265I therefore find that the third element under s. 21(2) is proved beyond a reasonable doubt.
II. Did Tsega act under duress?
266The defence argues that Tsega acted under duress when he provided Swan’s address to X, Y and Z.
267The Crown contends that duress is not proved in this case, for two reasons. First, the alleged threat has no air of reality. Second, the defence does not apply because Tsega had a “safe avenue of escape” but chose instead to get in the Explorer and guide X, Y and Z to the Moodie Drive house.
268I have already reviewed the evidence about the alleged threat.
269If I accept Alec and Connor’s evidence about their discussion with Tsega about the threat, the person who made the threat was Y. Connor testified that Tsega said he looked to X when he was threatened, which means that the person who made the threat was someone other than X. Alec recalled that Tsega, in justifying his reaction to the threat, said that “[ ]” as “a little psycho”.
270The defence nonetheless suggested, in its closing submissions, that it was X who uttered the threat. This was based on Jackson’s evidence at Tsega’s bail hearing in November 2010, which she adopted at trial. She testified in November 2010 that Tsega saw that X, Y and Z were armed when they met on February 21, and that X told Tsega, referring to Y: “You have to tell him, Sam, the address or else he’s going to go crazy”. In her evidence at this trial, Jackson said that she no longer remembered who told her about the threat made to Tsega, but that she was trying to tell the truth, to the best of her ability, when she testified at the bail hearing.
271Connor and Alec’s account of Tsega’s story about the threat was fundamentally consistent. They both recalled that, according to Tsega, one of the two men with X threatened to shoot him if he did not give him Swan’s address. I do not find this evidence any less credible just because Connor and Alec had different recollections of the specific words allegedly used to threaten Tsega. They both said that Tsega told them, a day or two after the murder, that he believed he would be shot if he did not provide Swan’s location and that the person who threatened him was Y.
272Y denied that he threatened Tsega and Z denied that he overheard any threats to Tsega. I place limited weight on this evidence because of Y’s tendency to downplay his role in the robbery and Z’s general lack of credibility.
273Let us assume, then, that Jackson’s version of the threat was accurate. X had an opportunity to threaten Tsega while they were in Tsega’s bedroom on the evening of February 21. He could have threatened him while Y was in the bathroom and Z was focused on Facebook. This strikes me as improbable, because any threat would have logically followed on Tsega’s question about why X was asking him to show them Swan’s house. The scenario in which X threatened Tsega while his two companions were elsewhere is nonetheless possible.
274It is, however, difficult to reconcile the idea that it was X who threatened Tsega with the exchange of texts between Tsega and X after the murder. Beginning just before 1:00 a.m. on February 22, 2010, when Y began driving the Explorer back to Toronto, they had this exchange:
at 12:52 a.m., Tsega texted X: “Why”, and then, less than a minute later, “Nvm”.
at 1:08 a.m., X texted Tsega: “U do it?”, to which Tsega responded: “Ya bro its done. U ok”.
at 2:00 a.m., Tsega texts X: “You want to play some cod later?”
275Based on these texts, after the robbery, X asked Tsega to perform some sort of favour for him and he did so. An hour later, Tsega suggested that they play a video game (“cod” being an acronym for “Call of Duty”). The tone and content of this exchange is friendly. This is odd if X threatened to kill Tsega a short time earlier.
276Another problem with the theory that it was X who uttered the threat is it means that Tsega lied to the Buchanans about the identity of the person who threatened him. It is in fact clear that Tsega lied during this conversation, or at least told a half-truth, because he said or implied that they left without him after he disclosed Swan’s address.
277A yet further problem is that, during intercepted phone conversations between Tsega and Jackson in August and September 2010, Tsega abandoned the idea that he was threatened. During the first call on August 10, 2010, Tsega canvassed what he might tell police if he was interviewed. He initially suggested that he would deny seeing X at all that night, and Jackson reminded him that X had been seen by Josh and Charczuk. Jackson then suggested that Tsega did not know where X and the others had gone after they left the Tsega house, and Tsega agreed that “he didn’t tell me much he told me he’s gonna go to Montreal”. To which Jackson responded: “Yeah well that’s exactly what he told Josh and Emily too.”
278Tsega and Jackson discussed this version of events again on September 24, 2010, after he was arrested. They once again agreed that X, Y and Z had left Tsega’s house saying they were on their way to Montreal:
Jackson: Yeah now Josh and I both said some stuff to them [the police] yesterday and so did Emily but I mean just that they were here they left they said they were going to Montreal and basically that’s it I mean that’s what happened right so.
Tsega: Yeah.
Jackson: That’s all ah you know.
Tsega: Alright.
279Tsega never mentioned X’s alleged threat during either of his calls with his mother in August and September 2010. As already noted, this makes sense because, if in fact X and his companions told Tsega they were on their way to Montreal, there would have been no reason for them to ask Tsega for Swan’s address, and no reason why they would have threatened him if he failed to provide it. Either the “they left for Montreal” story or the threat story could be true, but not both.
280A final problem with a defence based on a threat uttered by X is that it relies on the evidence of Jackson, a witness whom I have found to be utterly unreliable.
281When an accused raises a defence of duress in the context of a jury trial, the court must find that it has an air of reality before presenting it to the jury for consideration. Only in those circumstances will the burden shift to the Crown to show that duress is not made out. As the trier of fact in a judge alone trial, I must likewise consider whether Tsega’s defence has an air of reality before considering whether the Crown has effectively disproved duress.
282Tsega’s story about the threat is inconsistent with the tone of his exchanges with X hours later. The story he told to the Buchanans is demonstrably false in terms of the implication that Tsega did nothing more than provide an address. The story is also inconsistent with his later accounts of what occurred that evening.
283I conclude that the account given by Tsega to the Buchanans about a threat was a fabrication to conceal his involvement in the robbery. As a result, the defence has no air of reality.
284Even if I had concluded otherwise, I would still reject the defence, because I find that Tsega could have escaped the situation by alerting Swan or the police to the robbery plan. As explained in R. v. Hibbert, at para. 45, an accused charged pursuant to s. 21(2) of the Code may seek to have their conduct excused through the operation of the common law of duress. This defence requires that the accused had “no legal way out” of the situation, as explained at para. 62 of Hibbert:
An accused person cannot rely on the common law defence of duress if he or she had an opportunity to safely extricate himself or herself from the situation of duress. The rationale for this rule is simply that in such circumstances the condition of "normative involuntariness" that provides the theoretical basis for both the defences of duress and necessity is absent -- if the accused had the chance to take action that would have allowed him or her to avoid committing an offence, it cannot be said that he or she had no real choice when deciding whether or not to break the law.
285Even if Tsega genuinely feared bodily harm if he refused to show X and the others where Swan lived, he had an opportunity to prevent the robbery from happening — and therefore avoid being a party to it — by calling the police or Swan or the Buchanans after he was dropped back home around midnight on February 21, 2010, or by telling his brother or mother what was planned. Since he did not do so, he cannot claim that he had no real choice about breaking the law. He was complicit.
Disposition
286The Crown has proved, beyond a reasonable doubt, that Tsega intentionally assisted in the robbery of Michael Swan by directing X, Y and Z to Swan’s house at 4139 Moodie Drive on February 21,2010. He knew that they intended to rob Swan or was willfully blind to their intention. Swan was murdered, making Tsega liable for the included offence of manslaughter if the risk of serious injury was reasonably foreseeable. I conclude that it was.
287I do not find that the defence of duress has an air of reality. Even if I did, it would not relieve Tsega of his liability for his offence, because he could have safely alerted Swan or the police about the robbery plan once Y, X and Z dropped him back at his house around midnight on February 21, 2010.
288Mr. Tsega, please stand.
289I find you guilty of manslaughter in the death of Michael Swan on February 22, 2010.
S. Gomery J.
Released: February 3, 2021