I pondered saying something humorous to lighten the mood. It’s almost reflexive with me. I was one of those people who couldn’t stand awkward moments, so I always tried to rescue everyone—or, really, to rescue my own uncomfortable self by showing how clever and funny I could be.
But a little wire had grown between a corner of my mind and my mouth, it seemed. The wire had wrapped itself around my tongue, and looped twice around my jaw. That corner of my mind pulled the wire taut as my reflex to speak pushed against my mouth’s door. The more I pushed, the tighter the wire got. I would not speak a word to these people, as it turned out, ever, other than asking for a toilet.
It was divine intervention or a lifetime in the law that strangled me at that moment. I needed to speak with my counsel first. I needed to think through whether to give a statement. I needed to remember that the right to remain silent was well worn, well established for very good reasons. The right to not self-incriminate was a powerful right to be exercised, not to be trifled with. People under arrest or otherwise facing police questioning need to consider that before they speak to the police. Be sure that you know what you’re doing when you waive that right, dispel its power, and ignore its history and its lessons. When in doubt, say nothing.
Finally, the door opened. There were bright fluorescent lights and hallways, video cameras everywhere. The officers took inventory of the items on my person: keys, wallet, cigar cutter (eyed with suspicion), receipt scraps from my anniversary dinner and dessert. I signed a form.
A large metal door was unlocked and opened. Around midnight, they pointed me into that room and that was that. This was the cell they would hold me in for the next 15 hours.
I was alone in there. Most of the time I remained seated on a grey-painted metal bench, about the size of a chair, jutting out of the cement wall. The bench was a shinier grey, contrasting the bland white-grey paint covering the cement. At times, I leaned on the bench, resting my head on my arms. But that wasn’t working too well because I was in a t-shirt and it was cold on my arms, too cold to sleep.
Besides, my mind was in overdrive.
I stared at the wall. The wall paint itself was actually more a lazy cleaner than something to add colour. The excrement and urine and saliva and blood and pus that had visited those walls got scrubbed a bit before another layer of paint went on.
Under that paint lay years of mendacity, self-mutilation, beatings, wails, delusional rants, tantrums, weeping, untreated injuries, echoes of babbling drunken tongues, sickness, pain, death, senselessness. That cell was quiet but I could barely hear above it all. Interior madness, painted over, coat upon coat, layer upon layer. A chip away from breaking out, filling your nostrils with something acrid, sore, stung, rasped, scraped, ripped, rotted.
And my mind raced faster still.
“Where should I start,” I thought to myself. “I’m in charge…. No, I’m not.”
First began the what-ifs.
What if the internet payment for baklava on the Danforth hadn’t cleared the first time and the proprietor had run the transaction through again? We’d have been delayed a minute or two maybe. Then I never would have seen him. He would have terrorized someone else.
What if we’d decided to get Susan that book? Then, I would have turned left on Bay Street, and never encountered Sheppard parking his bike in front of me at Bloor and Belair.
Or what if I’d just turned north on Bay Street to go home, winding up Bay and over to Davenport, then right on Avenue Road? It would have taken me well north of Sheppard’s path.
The what-ifs were making me sick. I stopped. I felt panic brewing inside.
Now, to stop the terrifying sound in my head, I started going within myself, in a fashion I’d not experienced before, trying to hide from my thoughts.
I grew up beside the Pacific Ocean, and knew that beneath the blowing whitecaps and the churning waves, down under there, things are quieter, calm, moving very slowly, darker, but not scary. It’s the flip side of the wild Pacific, as if the inside were balancing the outside. On the surface, my head bobbed among the whitecaps, amid a gale. So I went within, down below, deeper, deeper, where it was quiet and slow.
Once I was safe from my own thoughts, I knew that this little cave within a cave that I’d found would become useful. It wasn’t a comfortable place, by any stretch. But sometimes, when my thoughts became overwhelming, I’d go back there. My sanctuary. It was the place where one’s dignity cannot be touched, the soul protected.
Hearing that we’re powerless over people, places, and things (like booze) is not uncommon. Grasping this concept intellectually is one thing. Experiencing powerlessness is another. The experience in that cell was not unlike the sweet surrender I’d experienced more than three years previous, when I’d surrendered to my powerlessness over alcohol. Because I had to, because I was worn out, because I couldn’t keep going anymore. Not because I wanted to. I had to.
The same was true after the 28 seconds. Many times, when chaos fogged up my vision, I’d have no choice but to surrender, to crawl into this cave within a cave, powerless. It became home, that place of surrender.
After I don’t know how long, I began to be able to think again. I considered whether I’d be charged with something more serious. I knew Darcy Sheppard was hurt. The police said he was in very bad shape. But I still didn’t fully believe them.
What’s the charge? If he dies, it’s criminal negligence causing death. What’s the legal test? Oh, I knew the legal test. After all, I’d helped write it.
It was 1993 and I was clerking at the Supreme Court of Canada for Madam Justice Beverley McLachlin. I’d been asked to write the first draft for Hundal, Creighton, and Finlay— a trilogy of cases that established the legal test for criminal negligence. I borrowed heavily from the jurisprudence of the retired judge from my home province of B.C., Bill McIntyre.
A few years after the trilogy was released, I would publish a scholarly article on the resurrection of his previously discarded jurisprudence. It only underscored my familiarity with these charges that I was no longer writing or studying, but living them.
The constitutional issue was whether someone could be convicted of a serious crime without being consciously aware that they were engaging in dangerous behaviour. On one side of the debate were the subjectivists, who argued that the accused had to think dangerously. On the other were the objectivists, who argued that it didn’t matter what the accused was thinking if his thinking was so idiotic that a reasonable person would have found it to be dangerous. In that case, the mens rea—or criminal mind—part of the test was met.
Basically, I advocated that McLachlin take a hard line. An objective test would suffice for a conviction, and the majority agreed with Justice McLachlin. Now, sitting in a cell in the early hours of September 1, 2009, I found that I’d written a test that would threaten my future. It was quite a reckoning.
Still, as I went through the test in my head, I believed that my conduct had not come close to being criminal. The reasonable person, I thought, would have done what I did. They would have tried to escape from the attack. I would be okay, legally.
I didn’t feel okay. I still didn’t know the condition of Darcy Sheppard. And there were other questions. Would my wife be furious at me? What would the kids think of me? How would the media respond? Would I be employable hereafter? Was this the end of any future return to politics?
In case I needed reminding of how drastically my prospects had changed, I could hear the arresting officer somewhere down the hall, talking on the phone. They’d accidentally left the door open a crack for about ten minutes, so I’d heard the constable clearly. He seemed to be reading my Wikipedia page to his wife or girlfriend.
“This guy’s the Chief Legal Officer of Ontario,” I heard him say. “This is huge!” He sounded very excited about the night’s collar.
Next I began contemplating my next vocation. A teacher, probably, at a small community college. No university would dare appoint m
e. I gave up all my lofty aspirations there and then. It wasn’t as awful as I’d expected. I would just have to change my dreams. I’d have to change my life’s map. This inner conversation happened while I was sitting on that bench, sitting up straight at that moment, facing the opposite wall, the one with nothing on it.
But when you’re in a room for 15 hours with nothing to do but stare and think, some dangerous thoughts come unbidden also. When I was released from custody, would I have my first drink in more than three years? It would be a Manhattan, I knew: Maker’s Mark bourbon, some agostino bitters, and the red vermouth, I think it was. One cherry. Or maybe a very dry gin martini. Or blended Scotch and soda, on the rocks.
I stood up, arms crossed in front of me, looking low on the wall. I decided in that moment that drinking would be worse than this. Having a drink, being drunk again, being hungover again, being beholden to alcohol again, being something other than myself, being medicated and fake—that was worse than anything that could happen to me sober.
So I sat back down, just overcome with fatigue. Crossing my arms for warmth, I leaned back against the wall, fists balled up into my armpits, crossing my legs to stay stable.
A couple or many hours passed. I was clueless as to the time. The metal door was opened. “Someone is here to see you…. A ‘Cynthia Fromstein.’” “Yes, I’ll see her.”
Cynthia is a criminal lawyer who had joined my Liberal constituency association a few years earlier, one of many overqualified members of the riding executive. When she got the call, Cynthia climbed out of bed and came to the police station, just after midnight. She’d spent all hours of that morning speaking with police, consulting with her colleagues on the defence bar, and occasionally being allowed to squeeze into a tiny cement telephone booth with me, so that we could speak privately.
We huddled together in that phone booth built for one. Cement, like the cell. Same paint as the inside of the cell, too. And a phone; a black phone or a pay phone, I can’t remember (quaint, now that I think of it; one day I’ll have to explain to my kids about “pay phones”). A stool was jammed in the corner of the cement booth, but nobody felt like sitting, so it served only to diminish our space.
“How are you?” “I’m okay.” “Good. Good.” She looked upset for me, but something about being in a police station made her feel comfortable, simply at work.
“I can’t thank you enough for coming here tonight—”
“Don’t be silly. I’m so glad I can do something. This is crazy.
Michael, you’re going to be released soon.”
In fact, I wouldn’t be released for another ten hours. “They’re still looking at manslaughter, but I can’t believe they’d do that,” she said.
Manslaughter? “Michael,” she said, her face blushing red now, “Michael, he died…. He’s dead….”
When the words came out I just buckled, slid to the floor, face in hands, pushing my palms upward into my eye sockets. She told me they were going to charge me with criminal negligence causing death and dangerous driving causing death. Maybe manslaughter.
After a while, Cynthia left.
Sometime before 5 a.m., when I must have looked asleep on the surveillance camera, the door creaked open. A detective came into the room and introduced himself. He was overweight, with a moustache, balding. He didn’t really need to introduce himself as a detective. This man was a cop and looked like one probably at birth.
“We have a lot of evidence. Witness statements, and a lot of video. A lot. Now, we need some context to put it all together.”
It sounded so attractive. I was tempted to help him. It’s a natural human inclination. I wanted to provide context because I knew I was innocent and wanted to avoid being charged with an offence.
Now, finally, was the moment I’d been waiting for, in many ways. It was time for me to act, make a decision. Since the 28 seconds, nobody had asked me to actually do or say anything, until now.
He repeated his request for some “context,” and then made a mistake. He said: “we’re looking at charging you with dangerous driving causing death. Or maybe vehicular homicide. That’s what we’re looking at right now.”
This was not news to me. But just the way he said those words, the charges, I knew they were operating in a parallel universe where there are no innocents. It was now clear to me that the police at this division were not debating to charge or not to charge. Rather, they were debating how serious a charge they could lay. My “context” was not “context”; he wanted a statement to incriminate me. Something that could be contradicted by a witness, or some video. They didn’t think I might be innocent. They thought I was a killer. They wanted me to help them ruin me.
“This context,” I said, finally. “Are you asking me to make a statement?”
“Yes,” he said immediately.
There was a pause. I knew the answer was no but wanted some more time. I asked to speak with my lawyer. It happened within about 20 minutes.
“These guys are trying to build a case against you,” Fromstein repeated. “We shouldn’t help them. They’re not your friends.” I came back into the room, where the detective was waiting. I was tired but very alert, very careful. I thought about how to say this, how to say I wasn’t going to make a statement. Do I explain why? Am I bitter, nasty, or accommodating, apologetic? The video camera purred silently above me.
“Declined,” I said quietly, as I sat down on the metal pallet. The detective nodded, unsurprised, and walked outside the room without a word, locking the door behind him.
CYNTHIA HAD ALREADY TOLD Nikki and Susan about the death. They had returned to our house in Nikki’s car to arrange for a “heavyweight” defence lawyer. They began making calls, getting advice. They phoned my friend Michael Eizenga, a class-action lawyer and former president of the Liberal Party of Canada, who said, “Get Marie Henein.”
I’d met her once, at a dinner with Eizenga. The way we’d all been seated at that celebratory dinner, which now seemed centuries ago, I hadn’t had much of a chance to chat with Marie. But by 8 a.m., Susan had retained her as my interim lawyer.
Sometime in the morning, a detective asked if I wanted anything to eat. Then: “Can I get you anything before you get released?”
“Yes,” I said. “Am I right to assume that media are waiting for me?”
“Oh boy, yes,” he said. “Never seen so many out there.”
I figured there would be some kind of a perp walk, or certainly photographs taken, maybe a statement demanded, and I was in a t-shirt and jeans, both much the worse for wear by the last 12 hours.
“Okay, I don’t want my kids seeing me on TV in a t-shirt and jeans. They’ll know something is off. Whenever they see me on TV or in the newspaper, I’m in a suit. So can you ask my lawyer to find me a suit to wear, from my house? They’ll bring it here.” So the officer told Cynthia Fromstein that I wanted a suit.
Cynthia told Susan, who asked Nikki for help. They chose the most boring suit and tie they could find. They asked two of my best friends to pick it up and then pick me up.
Stephen Granovsky was a law-school buddy and a mensch extraordinaire. I’d been emcee at his wedding. He put my suit and shoes in a paper bag and headed to the station with another best friend, Andrew Evangelista, also a law-school buddy now with his own civil litigation law firm.
Back at the station, all morning there had been a debate about whether to release me on conditions from the police station, or to Old City Hall for a bail hearing before the Ontario Court of Justice. There was a strong likelihood that bail court would be presided over by a judge or JP that I’d appointed, but the debate was over whether I ought to be treated differently—which is to say more harshly—than any other accused with no criminal record who presented no flight risk.
Police consulted with the independent prosecutor, B.C. lawyer Richard Peck, who had by then been appointed by the Ontario Crown Attorney’s Office. Cynthia Fromstein addressed Peck’s question about whether being released b
y the police, rather than going before a court, constituted special treatment. They spoke by telephone.
“I’ve been practising criminal law in Toronto for a long time, Mr. Peck, and anyone but Michael Bryant would have been released from custody 12 hours ago…. The police laid charges way, way before it was necessary. They’re still collecting evidence, for goodness sake. What was the rush? Because you guys ARE giving him special treatment, all right. Especially UNFAIR treatment. And as for his release: gimme a break!! You can’t tell me that this guy is a flight risk. If you take him to City Hall it will be a circus, and it’s only because you’re going overboard here. Way, way overboard. Release my client, Mr.
Peck. Now, please.”*
Her argument won the day.
At about 2 p.m. on September 1, the heavy metal door was opened and I was escorted down a hallway to another room, which looked like an office that had become a large storage closet. I sat in that room for a few minutes. I didn’t know what was to happen next.
There was a knock on the door. I didn’t answer at first, thinking that it wasn’t for me to answer it. I felt like a prisoner, not like I was in an office/storage room, which I was. Finally I answered the door. And there were the last two people I expected to see: Stephen Granovsky and Andrew Evangelista. Steve pushed a paper bag into my arms and told me to get changed.
Those two best friends of mine had waited for some time at the station with the suit they’d been given by Susan and Nikki. At some point an officer took the suit away from them, presumably to give it to me. The bag got lost somewhere. So after a treasure hunt in the Traffic Division, another friend was called to retrieve suit #2. Lorne Sossin, now the Dean at Osgoode Hall Law School, and another classmate (and co-clerk), violated several speed limits in an effort to deliver suit #2. Then, apparently, suit #1 got located and was returned to Steve and Andy.
Much was made of me in that suit after I was released. The fashion critics would have been amused to know how shambolic the whole wardrobe matter had been. I even had to borrow a belt from Andy and dress socks from Steve. And, for the record, I didn’t shave. I wanted to look respectable, not groomed.
28 Seconds Page 14