When Prosecution Met Defence: The Michael Bryant Case - LawNow Magazine

When Prosecution Met Defence: The Michael Bryant Case

criminal lawFacts of the Case

At 9:47 p.m. on Aug. 31, 2009, former Ontario attorney general and CEO of Invest Toronto Michael Bryant, driving home after dinner with his wife, had a violent encounter with a younger man on a bicycle, Darcy “Allan” Sheppard. Sheppard was drunk, and at a traffic light on Bloor St. W. pulled his bicycle to a stop in front of Bryant’s Saab convertible. The ex-politician, for reasons that have never been satisfactorily established, drove into the cyclist. The force knocked Sheppard back onto the hood and dragged his bicycle some distance beneath the Saab. Sheppard rolled off, stood up, ran around the car and jumped onto the driver’s side, holding onto the window frame (or possibly the driver’s seat headrest). Bryant reversed, drove around the downed bicycle, and accelerated down Bloor into the oncoming lane, which was free of traffic. After a few seconds, Sheppard was thrown from the car. The left side of his torso was torn open, probably by a fire hydrant; but he died, according to the coroner, from the blunt impact trauma of his head hitting the road or sidewalk. Bryant drove to the Hyatt hotel a few blocks along Bloor, where he spoke with a doorman and (three minutes after arriving) phoned 911. The Toronto police charged Bryant with criminal negligence causing death and dangerous driving causing death. He spent the night in jail.

Bryant appeared the next day for a press conference in a crisp suit, hired the public relations firm Navigator, and retained top criminal lawyer Marie Henein as his defence attorney.

It emerged that Sheppard, who was Métis, had been a ward of the child welfare system in Alberta. He worked as a bicycle courier in Toronto. He had a lengthy criminal record in both Alberta and Ontario, mostly for petty and substance abuse-related offences.

The Ontario attorney general’s office, in order to avoid the appearance of bias, appointed a prominent B.C. defence lawyer, Richard Peck, to serve as Special Prosecutor in the case.

The Dropping of Charges and the Special Prosecutor’s Public Statement

On May 25, 2010, the Special Prosecutor, concluding there was no reasonable likelihood of conviction, dropped the charges against Bryant. (A scanned copy of the proceedings can be found at The Darcy Sheppard Files a site maintained by the victim’s father.)

The procedure was unusual in that the announcement of the dropping of charges against Bryant was accompanied by a lengthy public account of the Crown’s reasons (including analysis of evidence) for doing so, even though those reasons and that evidence had never been tested by a trial. Also surprising was the effect that the submission by the defence of pre-trial “Scopelliti” evidence had upon to the prosecution’s case.

A Successful Pre-Trial “Scopelliti” defence

In Canada, the name “Scopelliti” attaches to the tactic by which a deceased victim’s character is impugned in order to strengthen the claim that the accused killed him in self-defence. In 1979, Antonio Scopelliti, an Italian immigrant who spoke almost no English, shot and killed two unarmed 17-year-old boys he believed were attempting to rob his Orillia, Ontario convenience store and gas bar. There were no witnesses and no video camera evidence. Scopelliti claimed self-defence, and his lawyer – Edward Greenspan  – bolstered that claim by producing evidence of what he said was a pattern of prior aggressive and threatening behaviour by the two teenagers. The judge presiding over the Scopelliti trial ruled that evidence to be admissible.

Bryant’s defence team, after intensive detective work around Toronto, gathered affidavits from six motorists who claimed that they had been harassed by Darcy Sheppard in previous months and years. On May 25, 2010, the Special Prosecutor, concluding there was no reasonable likelihood of conviction, dropped the charges against Bryant. They also produced two compelling photos: one of a shirtless man who looked very much like Sheppard angrily confronting a motorist in a BMW; the second of the same man perched on the running board of the same vehicle, hanging from the side window. In the court proceedings, Special Prosecutor Peck declared that he, himself, found the “probative force” of these exhibits undeniable. But the relevance of those exhibits was never ruled upon by a judge. Nor had the circumstances in which they were gathered been tested in a trial.

Greenspan, reflecting on his precedent-setting case in a 1987 autobiography, made this comment: “The victim may not always be the party that is the most grievously hurt. Guilt or innocence do not depend on the severity of injuries and cannot be determined by medical reports alone. We cannot judge solely by the outcome of an incident who is to blame for it, or who is to blame for it more. Nor can we decide it on the basis of who complained first, who started crying “Thief!” or “Rape!”, or who has been charged by the police. If we could, we wouldn’t need courts and judges. These questions can only be answered by a judicial process in which all relevant evidence is placed before the triers of fact, according to law.” [1]

Light Thrown on the Case by FOI Release of Police Investigation Materials

Soon after the Crown dropped its charges against Bryant, Darcy Sheppard’s adoptive father filed a freedom of information request with the Toronto Police.  Among the documents the police sent to Allan, Sr. in late 2012 was a collision reconstruction report. Its lead author was Detective Constable J. Vance; more than fifty other officers contributed to it. That report concludes: “Mr. Bryant and Mr. Sheppard shared responsibility in the death of Mr. Sheppard” [italics added]. It notes that [in the first two sequences of the accident] Bryant “struck Mr. Sheppard not once, but twice from a stopped position. Mr. Bryant’s final actions in the third collision sequence [the one that culminated in Sheppard striking a fire hydrant and his being thrown a further 25 feet or so along Bloor St. West] led to the death of Mr. Sheppard. Mr. Bryant’s failure to stop the Saab when Mr. Sheppard deliberately hung on to the side of the Saab, and driving [sic] his vehicle on the opposite side of the road in an attempt to dislodge Mr. Sheppard from the vehicle gave the appearance of a deliberate act according to witnesses.” Vance’s conclusion, anticipating Bryant’s claim that he had acted in self-defence, adds “[t]here was no physical evidence, or independent witness statements suggesting Mr. Sheppard affected the steering of the Saab, or anything to suggest he physically attacked Mr. Bryant.” Vance goes on, “Mr. Sheppard also is responsible for his actions that led up to the concluding incident [italics added]. All of these actions were unfortunate and avoidable.” (See The Darcy Sheppard Files) The court proceedings of May 25, 2010 made no mention of the existence of this report.

Further Light Thrown On the Case Since 2010

In 2012, Bryant published a memoir, 28 Seconds: A True Story of Addiction, Tragedy and Hope. It revealed the author’s hidden alcoholism during the years he served as a provincial cabinet minister. (Bryant claimed he had been sober for some time before the fatal incident.)

It also disclosed a more legally relevant detail: the statements made by Bryant and his wife  concerning the night of Aug. 31, 2009 were not officially recorded until seven months after Darcy Sheppard’s death. They were set down in a “no-prejudice” setting.

The interviews took place (separately) in early April, 2010, and only after Henein’s team had shown the prosecution their entire Scopelliti file. The interviews, with defence lawyers present, were conducted under “without prejudice” conditions by Mark Sandler, the Toronto lawyer who was counsel for the Crown. Surely, much was at stake for Bryant in Henein’s first approach to the Special Prosecutor. Nevertheless, by early April both the defence and the prosecution had agreed that the account Bryant and his wife gave to Sandler could not be used against Bryant in a trial. (That is the legal meaning of a “without prejudice” interview.)

Possibly because 28 Seconds did no favours to Bryant’s public credibility, Marie Henein’s essay “Split-Seconds Matter” reiterates in broad brush the argument she made in 2010. [2] She recalls an “overwhelming” pressure in 2009-10 “to get the right result” [i.e. to win the case]: “The truth is that Michael Bryant was well-loved by the legal community. Many identified with him, many knew him personally, and many were utterly grief-stricken over his situation.”


Notes:

1. Edward Greenspan and George Jonas. Greenspan: The Case for the Defence. Toronto: MacMillan, 1987. 326

2. Marie Henein. “Split-Seconds Matter.” Tough Crimes: True Cases by Top Canadian Lawyers. Eds. C. D. Evans and Lorene Shyba. Calgary: Durance Vile Publications, 2014.

 

Authors:

J. Mark Smith
J. Mark Smith is a professor of English at MacEwan University in Edmonton, Alberta.
 


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