Manslaughter conviction in retrial
Technical glitch silences judge's delivery of verdict in `virtual' courtroom
The “emotional roller-coaster” was too much to bear for Michael Swan's family as Sam Tsega was found guilty of manslaughter for a second time for his role in the killing of the Barrhaven teen nearly 11 years ago.
Tsega was granted a second trial in a February 2019 ruling by the Ontario Court of Appeal, issued nearly nine years to the day after the botched robbery on Feb. 22, 2010. On that day, three masked men from Toronto broke into Swan's home demanding marijuana, ordered him to the floor and shot him to death while his girlfriend and roommate watched helplessly in horror.
Superior Court Justice Sally Gomery read her long-awaited decision to a nearly empty courtroom Friday — with public access restricted due to provincial lockdown orders and the online hearing beset by technical difficulties. Swan's parents were overcome as the decade-long legal ordeal wound its way to a familiar conclusion.
“For something that we thought would have been over and done years ago, it was more of the same,” Swan's brother, Alex, said in a phone interview following the decision.
“My parents had a harder time dealing with it than I did, and there were points in the decision where it was going up and down — there were some points where you're thinking, `OK, she's going to find him guilty,' and then there's other points where she's saying, `I absolve them of wrongdoing,' and it sounded like she would acquit him.
“I couldn't get a read on her until the very end, and it was close to two hours. It was an emotional roller-coaster. It was too much for (my parents) to take it all in, so they actually had to get up and leave the courtroom.”
Swan's parents, along with a number of friends and family members, anxiously awaited the verdict in the “virtual” courtroom. They had to rely on Alex Swan's first-hand reports after a technical glitch shut them out of the online proceedings.
Friday's virtual proceedings — held in courtroom No. 37, the largest in Ottawa's Superior Court and the one typically designated for online hearings — were beset by technical issues, with a blank screen on the Zoom call and an audio feed that remained on mute throughout the judge's lengthy verdict.
Several online observers complained to the moderator in the “chat” function of the virtual hearing and were directed to a call-in phone number, but that audio feed was likewise muted.
No explanation was available from the Ministry of the Attorney General, a spokesman said Monday.
The judge's written decision hasn't yet been made available, the Crown attorney's office said.
Swan said he fielded several phone calls from confused observers who were shut out.
“That's a whole other can of worms,” he mused. “Nothing surprises me anymore — for me and my family.”
Swan believes the judge rendered a thorough ruling — “I think the judge was trying to make it a fairly open-and-shut (ruling) to avoid any further appeals down the road.
“But it's just been a long, drawnout process,” he said. “We're happy, but I'm not holding my breath, because it always seems like there's an avenue for an appeal in every case, and this case is obviously no different. So you're always thinking that you could be right back here again.”
Tsega was implicated for his role in pointing out Swan's home to the killers, ordering pizza and providing masks and hoodies to Kristopher McLellan, who at his own trial admitted to being the shooter, and accomplices Dylon Barnett and Kyle Mullen. Police arrested the three on Highway 401 as they were driving back to Toronto that night, and police initially charged all four with first-degree murder.
McLellan was convicted of first-degree murder, Barnett was convicted of second-degree murder and sentenced to life with no chance of parole for 12 years.
Mullen was originally convicted of second-degree murder, but won a new trial after the appeal court ruled the trial judge made serious errors. His second trial had been set for the fall of 2019, but he pleaded guilty to the lesser offence of manslaughter. He was sentenced to time served and walked free in September 2019.
Tsega was found guilty of manslaughter in June 2016 in his first trial, but the Court of Appeal ruled the judge in that case erred in admitting certain “hearsay” statements.
Deputy Crown attorney Dallas Mack led the prosecution case in both trials.
Tsega was represented in his second bid for acquittal in a fourweek, judge-alone trial by Solomon Friedman and Fady Mansour.
Alex Swan expressed his frustration last week about his family's long and painful journey to justice.
“Had he just accepted this in the first place, he would've been out and a free man,” Swan said. Swan's family believes Tsega “absolved himself of responsibility” for his role in the killing with his quest for appeal and his pleas of not guilty.
“But he's been convicted of manslaughter — again,” Swan said.
Tsega remains out on bail pending his sentencing — another source of frustration for the Swan family — with another hearing set for Feb. 11.
“I'm happy with the verdict,” Swan said. “I'll be happier if he gets a substantial sentence.”