“Some days you don’t want to wake up”

Sam Tsega knew exactly what he was doing the night of February 22, 2010 as he drove three Toronto men to a home in rural Ottawa. He made the men memorize photos of everyone he expected to be in the house, then he left. Later that night, those three men forced their way into the house.

It was just after midnight and Michael Swan, 19, was sitting in his bedroom watching Olympic hockey with his girlfriend and another friend.

The sound of footsteps drew their eyes down the hallway as they saw three men in dark hoodies and balaclavas run towards the bedroom.

One pulled out a gun and demanded they get on their knees and put their hands up. With the gun still pointed, the men interrogated them about the location of Swan’s stash of marijuana and money.

They insisted they didn’t know.

Swan made a small movement and the loud crack of the gun going off echoed through the room.

Shot through the right shoulder, he slumped forward onto the floor.

A short time later, Dale, Rea and Alex Swan got the call no family expects.

Michael was dead.

In the time it took for the family to get the call, the attackers had locked all the witnesses inside the basement sauna, ransacked the house for cash, cellphones and DVDs, and were speeding down Highway 401 back to Toronto pursued by police.

Police arrested Kristopher McLellan, Dylon Tyrone Barnett and Kyle Mullen a few hours later on the highway near Gananoque. A stolen cellphone provided a GPS coordinate for the police to track.

The three men were sentenced to a variety of life sentences and decades with no parole eligibility during three trials that spanned five years.

“We had no idea what to think, just three random guys from Toronto that we’d never heard of,” said Alex Swan, Michael’s older brother. “Two of them had never even been to Ottawa before.”

Tsega had orchestrated the entire job, but he wasn’t arrested until six months after the murder. He evaded police until he stole his mother’s minivan and crashed it into a convenience store, where the police found him.

Michael Swan, photo provided by the Swan family

“The time was adding up”

The Swans successfully fought to have Tsega’s original manslaughter charge upped to first-degree murder, but then Dale Swan’s health deteriorated.

“My dad went to the crown, thinking he was going to die, and said we’d try (Tsega) on second-degree murder. It wasn’t because we absolved him of wrongdoing, we wanted to see him stand trial sooner,” Alex added.

The Swans’ fear of never seeing a trial almost materialized, as Tsega began to appeal. His actions are common in prosecutions in Ontario.

Only 10 per cent of cases make it all the way to trial because of settlements before proceedings begin, according to the Ontario Crown Attorney Association.

Tsega spent the next six years appealing every stage of his trial. It’s estimated he’s accumulated over 130 adjournments and four years of delays.

Finally, in June 2016, a judge spoke the words the Swan family had been waiting to hear for almost seven years. Tsega was guilty of second-degree murder.

The sentencing hearing was slated to take place a few weeks later, but when the Swans arrived at the courthouse they found the crown lawyers in a frenzy.

“We show up to court that day and people are running everywhere. Then we find out at the last minute he fired his counsel,” Alex said.

Because he had no representation the sentencing date was pushed, allowing him to build his Jordan application.

“None of us knew what to expect going into it.”

The next week Tsega filed for his case to be stayed because the 30-month limit outlined in the Jordan decision had expired. He was eligible, even though he had committed the crime six years before the Supreme Court’s Jordan ruling.

“The time was adding up, but it was adding up before the Jordan decision,” Alex shook his head. “He was just biding his time, it was all strategic.”

The thought of the man responsible for the death of his brother walking free makes Alex sick.

“Of everyone involved, we hold him most accountable because he set it all up. He’s the only reason those thugs knew where to go,” Alex said.

“It never ends”

With closure on the horizon, Tsega’s Jordan appeal was heard at the end of March.

The judge was greeted with thousands of pages of notes, transcripts and case studies as she sat down to pass her ruling.

After seven years, four trials and dozens of court dates, the man responsible for Michael’s death was sitting on the doorstep of freedom.

The Jordan decision was made in the hopes of reducing the number of people in remand. In Ontario, 65 per cent of people in custody are awaiting trial and haven’t been found guilty yet, according to Statistics Canada. While they are stuck in limbo, they clog the jail system and can’t access rehabilitation services.

The Swan family recognizes the need for reform, but doesn’t understand how old cases can be axed so easily.

“We had no idea the wheels of justice moved so slow,” Alex lamented. “You can’t retroactively impose a new timeline on old cases, it doesn’t make sense.”

If the court accepts Tsega’s appeal, his will be the second murder trial thrown out in Ottawa since the July ruling.

The difference is that Tsega has already been found guilty.

“All we were waiting on is how long he would serve in prison. I try not to think about it,” Alex said.

Alex Swan sits at work, explaining the complicated cases that followed Michael’s death. [© Elise von Scheel]
He has never taken the time to fully process everything that has happened since Michael’s death. He’s taken on the role of spokesperson for his parents, become a legal expert overnight and hasn’t taken a single day of stress leave from work.

“It never ends. Life doesn’t stop. You need to decompress, but I never took any time off or stress leave. I needed to be the rock of the family,” he said.

“Some days you don’t want to wake up, but nothing is going to change. It would be one thing to have closure, but we have no closure.”

The open end of the final prosecution leaves a gaping hole in the lives of the Swan family. Since Tsega’s November appeal, there’s a nervous anxiety they can’t shake.

“All this could be for nothing. All these trials and court dates and appeals could all surmount to him walking,” Alex said solemnly. “If he gets out it would be a huge tragedy.”

The fact that a case almost a decade old could be affected by a six-month-old ruling is baffling to him.

“It would be a huge insult … I’ve lost faith. ”

Update: Sam Tsega’s Jordan appeal was denied at the beginning of April 2017. He was sentenced on April 13th to nine years in prison, with credit for 17 months served.

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