Accused killer’s retrial painful blow to victim’s family
Court of appeal sets aside manslaughter conviction in botched 2010 robbery
The long and painful road to justice for Mike Swan and his family took another sharp turn this past week when, nearly nine years to the day since Swan was murdered, an appeal judge ordered a new trial for one of his alleged killers.
The Ontario Court of Appeal on Friday ruled Sam Tsega must stand trial for a second time for his alleged role in a botched robbery on Feb. 22, 2010, when 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.
“If I was losing faith in the justice system before, I’ve lost it all now,” Swan’s brother, Alex Swan, said after the ruling was made public Friday.
According to the Court of Appeal decision, Superior Court Justice Catherine Aitken erred by allowing “hearsay statements” to be admitted as evidence in Tsega’s murder trial, set aside his manslaughter conviction and ordered he stand a new trial. “The hearsay statements were important parts of the Crown’s case against (Tsega). They were the only evidence directly tying him to the planning and execution of the home invasion,” Justice C. William Hourigan wrote in the decision released Friday.
Tsega was not one of the socalled “Toronto Three” — Dylon Barnett, Kyle Mullen and Kristopher McLellan — but Tsega was accused of directing the killers to the 19-year-old Swan’s address, pointing out the tree-lined property on a drive-by, ordering pizza and giving hoodies and masks to the gunmen as they prepared to storm Swan’s home.
All four men were initially charged with first-degree murder, though their trials had differing resolutions.
McLellan admitted to being the shooter at his own trial and was found guilty of first-degree murder. Barnett and Mullen were found guilty of second-degree murder and sentenced to life with no parole eligibility for 12 years for Barnett and 15 years for Mullen.
Tsega was found guilty of manslaughter in June 2016 and sentenced to nine years, nine months in a hearing where Aitken said listening to the Swan family’s victim impact statements marked her saddest time in 20 years on the bench.
Tsega has been out on bail since that appeal, which was finally heard in Toronto on Dec. 6, 2018.
“Without Sam Tsega none of this would have ever happened,” Alex Swan said Friday.
“He was the reason the three of them were even in Ottawa. He drove them to the house and showed them where (Swan) lived. He gave them masks, but he chickened out of the robbery because he told them he knew the people inside Mike’s house.
“He’s the guy I really wanted to see (convicted).”
This is not the first obstacle Swan’s family — Alex and parents Dale and Rea — have faced in their long wait for justice.
They were dealt another blow last summer when Mullen won an appeal and, like Tsega, was granted a new trial.
Mullen and McLellan had also launched vigorous appeals, arguing that among other things, the trial judge made errors in his instructions to the jury.
Mullen won his appeal, while McLellan, who had appealed on the grounds the first-degree murder verdict was “unreasonable,” was denied his appeal in the same June 2018 ruling.
Swan’s family still has not learned when dates will be set for Mullen’s new trial.
The Ottawa courthouse victim services staff called Swan’s family earlier in the week to let them know Tsega’s appeal decision was looming.
“That’s what we were waiting on, the good news, if you can call it that, that (Tsega) would finally be held accountable for his actions and begin serving his sentence,” Alex Swan said. “That’s the phone call I was expecting to get.”
Instead, Tsega’s new trial will be the fifth the family will have to endure and, all told, the court proceedings will almost certainly span a decade since Michael Swan’s death.
“No one’s happy. I’m angry. My dad is extremely angry,” Swan said.
The issue that decided the appeal in favour of Tsega concerned “hearsay” evidence in the form of police interviews conducted separately with McLellan and Mullen months after the killing and audio-recorded at the Lindsay jail.
The two were initially resistant until investigators told them Tsega was claiming the Toronto Three had threatened him and put a gun to his head.
Both denied it, and gave statements to police that implicated Tsega, who was arrested two weeks later on Sept. 21, 2010.
McLellan told detectives he had met Tsega over the 2009 Christmas holidays, when Tsega visited their mutual friend, Barnett, whom Tsega knew growing up in Toronto before he moved to Barrhaven with his family when he was 12.
Tsega told them he “knew a guy that has lots of weed and money” and suggested “you guys can rob him,” according to the facts of the case.
McLellan said he heard from Barnett on the evening of the killing, who told him, “Tonight’s the night.”
McLellan and Mullen were called as Crown witnesses at Tsega’s trial, but both refused to testify.
Crown prosecutors Dallas Mack and Mark Moors then made a successful application to have the audio-recorded statements entered as evidence instead.
“The thing that really pisses me off,” Alex Swan said, “is that (Tsega) already had his day in court on this exact issue. Justice Aitken deliberated on this for weeks to weigh the evidence and the arguments and she eventually sided with the Crown. She agreed and said the police statements (from McLellan and Mullen) were not coerced, they were given voluntarily and so she allowed it.
“We spent court time to discuss this very issue and the judge ruled it was admissible.”
The taped interviews “corroborated everything we already knew, and what the police already believed,” Swan said. “The fact that they were coming from the shooter and (his accomplice) was a major point.
“They didn’t take the witness stand so all the Crown had to go on was those recorded interviews.”
Tsega’s lawyer on the appeal, Michael Dineen, argued the trial judge erred in relying on those statements, and the three-judge panel agreed. The decision also noted cross-examination “could well cast doubt on the truthfulness of the statements. Accordingly, I conclude that the trial judge erred in admitting the hearsay statements,” Hourigan wrote.
“Sam Tsega already had his day in court, he was convicted and sentenced and yet here we are back at square one,” Swan said. “He’s never once taken any responsibility or acknowledged his involvement in this, and he hasn’t served any meaningful time or felt any consequences. It is absolutely not right.
“And there’s no way for us to appeal this decision, to appeal this appeal. So here we go again.”
Sam Tsega already had his day in court, he was convicted and sentenced and yet here we are back at square one . ... It is absolutely not right.