28 Seconds

by Michael Bryant

  Of the many emails and calls that Andy received those first few days, one stood out as both too good to be true and too important to ignore. So much so that he made sure that I was copied on his email to Marie, with photographs attached to the email. Supposedly someone had taken photos of Darcy Sheppard attacking a car much like I’d been attacked.

  Whatever, I thought. Marie will take care of it. I didn’t even open up the attachments to see them. But Marie did, and what she saw blew her mind.

  David Wires was a lawyer—a civil litigation specialist, not a photographer. However, Wires had no choice but to become chronicler of the activities of a number of bike couriers outside his offices near Adelaide and York Streets, in downtown Toronto, where he and his clients had faced abuse from the courier cabal. Wires was a disgruntled tenant in his commercial building. He took plenty of photos because there was plenty of unruly conduct to photograph—for the landlord, and potentially for a civil action, or even for the police, one day.

  When David Wires saw the media photographs of Darcy Sheppard, he recognized him right away. He’d seen Sheppard many times, and often Darcy was drunk and belligerent. He’d photographed Darcy in just such a state, several times, from his office.

  So Wires jumped on his computer and started scrolling through the photographs until he came upon the one that he remembered. There were a number of vivid digital shots of Sheppard attacking a BMW. Attaching the photos to an email, he sent a message to Andrew Evangelista, who forwarded them to Marie and me.

  Marie opened the files on her Mac and printed them out on a colour printer. She blinked a few times, recalling my description of the 28 seconds. This seemed a photographic display of my description of Sheppard on my car, albeit it was a BMW in the photo, not my convertible.

  IT DID, HOWEVER, have a New York State licence plate that was clearly visible. Marie made a phone call to get the plate traced, and asked her assistant to get the photos enlarged.

  When I next saw Marie she opened up a binder with 8×10 photos showing a man launching himself into a car.

  I gasped. Marie watched my reaction. I looked at her, my forehead creased. No words were spoken.

  Then she turned the page to an enlarged photo of the man, from a different angle. He was clearly visible. Then another such photo.

  “If that’s Darcy Sheppard,” Marie said, pointing at the photo of him attacking the driver of the BMW, “then—”

  “That’s Darcy Sheppard,” I said.

  “Okay, but I’d rather someone else confirm that person as Darcy Sheppard.”

  “The photographer?”

  “No, the driver.”

  My face twisted up. Before I could ask how on earth she’d find that information, she pointed at the licence plate. Pretty clear, all right.

  The man driving the BMW became perhaps the most important witness establishing Darcy Sheppard’s capacity for aggression with motor vehicles, and the threat that Sheppard posed to a driver. In this case, the driver was a senior executive in the United States with a black belt in karate; he would eventually testify that his encounter with Sheppard was life-threatening. I’ve never been able to thank either man for the courage to speak out, and for the remarkable foresight of Wires’s photography. Many people came forward, but none were more important than these men.

  “If this is Darcy Sheppard,” Marie said, her voice rising, “this would be the most powerful piece of Scopelliti evidence I’ve ever seen.” Scopelliti evidence is similar-fact evidence used by an accused arguing self-defence. If the accused was responding to an act of aggression, then self-defence is basically established, if that reaction wasn’t wildly disproportionate to the threat. The Supreme Court of Canada, in a case called R. v. Scopelliti, allowed the defence to introduce similar-fact evidence establishing that the victim of a self-defence tended to be an aggressor. In plain English, in my case, “Scopelliti evidence” was important to my defence. It showed that Darcy Sheppard was probably the aggressor during our 28 seconds.

  ELEVEN

  My Elder; His Widow

  There are a lot of famous gaits, famous entrances, that have stuck with me. Early in my term as Minister of

  Aboriginal Affairs, I went to the Assembly of First Nations annual general meeting. As National Chief Phil Fontaine entered the room in which I was waiting, it was akin to the entrance of a rock star. He was a rock star—surrounded by a half-dozen aides and advisers, his long hair flowing behind him, a strong smile, and a crusher of a handshake. His first words to me were: “How’s your father?”

  Phil Fontaine is the most successful aboriginal politician in the history of Canada. Getting re-elected as a national chief is a rare occurrence. Only once has a chief served three terms. Fontaine did so amidst a time of enormous hope and turmoil. His success was based on lowering expectations and building consensus. His grasp and his reach were as one, and for that he was respected.

  Fontaine, like a good politician, remembered details about people that often shocked and always impressed. Chief Fontaine had indeed worked with my dad during the formation of the First Nations Financing Authority. My dad was the General Counsel and drafted and negotiated most of its terms. As my father lived in Victoria, it was not obvious that there was a connection between the General Counsel and the Ontario Minister of Aboriginal Affairs. It was one made instantly by Fontaine, however.

  We immediately hit it off. We shared very personal stories about our political challenges, and our families. Susan and I hosted Fontaine and his partner Kathleen Mahoney, of the University of Calgary, for dinner one night. We kept in touch by phone when each of us left politics in 2009.

  Fontaine called me several times after the 28 seconds. When I finally got around to answering him, he arranged to come to my house for a visit. At some point, there was a knock on my front door, and I opened it to see the National Chief standing there, alone. He’d taken a cab to my house, and joined me inside for coffee.

  He offered many words of support and made it clear that he’d do anything to assist. At one point, he suggested that I meet Fred Kelly.

  I looked at him, unsure of the name, but my brain was wobbly. Fred Kelly sounded familiar, nonetheless.

  “Fred’s my Elder. He’s my spiritual … leader. He’s one of the most respected Elders in the country. And he has been of great help to people facing challenges like yours.”

  I never imagined that I’d face a challenge that would be worth the time of a First Nations Elder. He’d no doubt counselled survivors of Canada’s residential schools, wherein children were taken from their mothers, made to assimilate, and often abused in schools far from their communities. Fontaine himself had been a product of residential schools.

  I was immediately attracted to the idea of meeting with a First Nations Elder. Firstly, I’d always felt a kinship with aboriginal spirituality during the many rituals performed while I was an MPP. In my riding, there was an aboriginal men’s residence designed to help some transition out of poverty or prison into society. I attended many of their gatherings. After all, I’d studied and practised aboriginal law, and Canada’s history in this area had deeply affected me as a young man.

  In government, I’d attended dozens of smudge ceremonies, drum ceremonies, and powwows. Figuring out how to dance around a room to the drum beat, while all eyes are upon you, was more difficult than participating in a drum ceremony—an enormous honour I enjoyed twice in my life, as Minister of Aboriginal Affairs.

  Most meetings with First Nations Chiefs or Métis leaders began with a prayer and the burning of ceremonial tobacco, usually led by the words of an Elder. There was something about those words, the voices of the Elders, the feel of those ceremonies, to which I felt a connection.

  What made Fontaine’s offer more poignant was Darcy Sheppard’s heritage. While he’d never sought official status as a person of First Nations descent, he would have qualified. Sheppard did identify himself as Métis.

  After Fontaine completed the introductions, I exchan
ged emails with Fred Kelly, who was extremely warm and articulate. He invited me to join him in Ottawa, and offered an address that I handed to a taxi driver at the Ottawa airport. I’m not sure what I was expecting, but it wasn’t his home. The day was rainy, blustery, and chilly, sometime in December, a few months after the accident.

  Kelly was strikingly handsome and fit, with the hair of a movie star. He offered me some coffee. We sat at his kitchen table to discuss what would happen that day.

  It began with a smudge ceremony, and sharing a peace pipe, each of us taking a turn inhaling the ceremonial tobacco. I’d brought some tobacco with me, and offered it to him in a formal gesture often expected when greeting an Elder, and sometimes a chief. (I had some leftover from my Aboriginal Affairs days. About a half-dozen little sacks of cloth, containing special tobacco, and tied with a ribbon or a string. My chief adviser Douglas Sanderson, a Cree, had helped me keep a number on hand—like a business card for an aboriginal affairs politician.)

  What happened next is considered sacred, and not to be shared publicly. Kelly did say that I could recount some highlights. I spent the day there, six hours or so, before he kindly drove me to the airport. There was a mini sweat-lodge set up, many prayers, much talking, plenty of silences. At one point I shared a recurring dream with Kelly, who was quite startled by the details, and it prompted him to hold a naming ceremony. After several rituals, he presented me with a feather and named me Eagle. It’s one of my most prized possessions.

  Elder Kelly was very clear about a few things. Firstly, he conveyed to me that Darcy Sheppard was in “a better place.” Secondly, he said that I was now bonded to Kelly eternally. We were, as he put it, “brothers.” Lastly, Elder Kelly went out of his way to address my own feelings—of shame, and of course the grief I felt regarding Sheppard’s death. I can’t say much more about what happened that day, but afterwards, I was changed.

  Occasionally, we get together and visit, particularly when he is in Toronto, and keep in touch via email and Facebook. In the spring of 2010, we met for a coffee at a downtown hotel. After exchanging pleasantries, and then catching up at length, I told him of a dream I’d had, watching a killer whale, severely wounded, its fin gouged and moving tentatively, coming toward me. He replied that I was healing.

  After a time, he sat back and started speaking about an experience he’d recently had. I could barely believe my ears.

  “A few weeks ago, I was meeting with a young woman who’d been sent to me by a good friend. She had lost someone in her life, and I was to perform a ceremony that would assist her in letting go.”

  Fred paused, sipped his coffee, and continued.

  “I asked her to write a letter, to the man who’d died, but either she misunderstood or understood well what she wanted. When she handed me the letter, I was shocked. It was a letter addressed to Michael Bryant, asking for help. Here it is.”

  The letter was from Darcy Sheppard’s widow.

  When Darcy Sheppard was 20, he married Tracey. (Tracey speaks openly about her life, online and otherwise, but I’ll omit her last name to protect her children’s privacy.) They had two children, then separated, and in January 2000 Tracey lost custody and access to her three children, two of whom were Darcy’s. Initially, Darcy gained custody of his two kids, but eventually Tracey’s mother came and took the children away, with the help of the Children’s Aid Society.

  A recovering addict, Tracey had been off her narcotic of choice for some time, while continuing on physician-supervised methadone treatment. (Properly dosed, methadone patients can reduce or stop altogether their use of heroin or morphine, but it’s supposed to be a means to an end—namely, abstinence from all drugs and alcohol.)

  Tracey wanted help getting supervised access to her children. So she wrote a letter to the only lawyer, she said, “who might actually help me.” How she knew that giving that letter to Fred Kelly would mean I would read it remains a mystery to me.

  I was initially elated. The opportunity to help Darcy Sheppard’s children and their mother seemed like a divine gift to me. Moreover, I was being asked for help, which is always a gift to be returned in kind. Or so I’d learned from my time in recovery from alcoholism, where helping others, rather than oneself, is a blessing of the highest order.

  My wife was not so ecstatic. In fact, she was fearful for me, for her, and for anything having anything to do with the 28 seconds. It was no doubt wise counsel, but I couldn’t accept it. And so getting involved in Tracey’s child access proceedings drove Susan and me apart still further.

  The summer of 2010, I drove out to meet Tracey and her boyfriend (now husband) in a town near Brockville. We met in a little park on the grounds of a community college, across from the Tim Hortons. Standing beside Tracey was her boyfriend, whom I’ll call Jack, and one of her college teachers, who was also a social worker.

  Tracey wore a huge smile and gave me a hug. Her hair was pulled back from her face in a ponytail, blondish hair, large eyes, sweatshirt and jeans. To me, she looked like a mom with young children—in her late twenties or so. A very hyper mom: Tracey spoke very fast and enthusiastically. She was bursting with energy and emotion.

  Jack was a few years younger than her, which she joked about. He was tall, lanky, quiet, and boyish. Of the pair, they were quite different on the outside, but clearly shared a common struggle against their demons on the inside.

  Jack had purchased a large double-double and a donut for me. “Hope the coffee’s still warm,” he said.

  “That’s his disposable income for the month, Michael,” the college teacher said, allowing me to appreciate the generosity. Jack was of First Nations descent, so I knew not to insult his greeting gift by offering to reimburse him.

  They were rich in spirit, poor in income. Both were recovering from addiction and attending doctor visits regularly. When I asked to exchange telephone numbers, Tracey told me she didn’t have one this month. They were surviving on welfare alone.

  “Congratulations on your grades,” I offered to Tracey. She’d sent me a copy of her recent transcript. Straight A’s. She seemed rightly proud.

  She spoke fondly of Darcy. Tracey had seen him in the weeks before he died. He was squatting at her place, with another woman, until Tracey told them to go back to Toronto, because of all the partying.

  At one point she wept quietly, wiping away her tears as she spoke of Darcy and me, the 28 seconds.

  “I’m sorry for you and for your family…. Dammit … He was going to die, Michael,” she said. Tracey was trying to comfort me, and I found it uncomfortable. I was here to help her. Not the other way around.

  That said, I just accepted her kindness. I didn’t want to push her, or ask her a bunch of questions about him, although she said some things in passing about him that I hadn’t known.

  “Darcy’s father’s name was Bear. Indian. He died, run over by a car. How crazy is that?”

  “Oh, Darcy,” she exclaimed at one point, “he always talked about his crazy dreams. About making some money. He’d pay back all the support he owed me, he always promised,” and she laughed. “Never paid me a cent, that.… Well it wasn’t his fault, really. He just couldn’t get his life together.”

  We talked about her old life, her new life, about Darcy, and her inability to manage the legal system. I said I’d do everything I could to help. We agreed to keep in touch through the college teacher. As I drove away, she seemed to be weeping, overwhelmed. I literally prayed that I could help her, in some way.

  Through Marie Henein, I paired Tracey up with one of Canada’s most famous family lawyers, Martha McCarthy, whose firm took on the file pro bono. I agreed to cover some out-of-pocket expenses of her law firm—the disbursement costs of filing and serving and travelling by the lawyers.

  “Now you need to let go of this,” Martha said to me. “I don’t want you involved.” So I did.

  Then, in early 2012, Tracey and I spoke on the telephone. We spoke about the non-profit foundation she was working o
n, to help parents facing the challenges of having lost custody of their children. And she shared with me a couple YouTube videos of her kids that had been posted. Her daughter’s singing voice was pretty stunning in a cover of a familiar hit. Darcy’s child.

  TWELVE

  The Defence

  After criminal charges have been laid, and a lawyer is retained, the next thing that happens is referred to simply as “disclosure.” Prior to the Charter of Rights and Freedoms, the obligation on the police and prosecutors to show their cards was minimal. The prosecutors could spring a witness or a wiretap on the defence during trial, leading to a lot of scrambling by the defence to address the damning evidence. However, a year before I began clerking at the Supreme Court of Canada, a landmark decision was released, called Stinchcombe. It was written by one of Canada’s greatest barristers, Mr. Justice John Sopinka, and a majority of the Court agreed with him.

  Ever since Stinchcombe was rendered in 1991, there has been an obligation on the prosecution to disclose to the defence all the information it has—whether it helps or hurts the prosecution’s case—in order to allow the accused to prepare a defence. This has to happen early in the proceedings. If it’s discovered that the prosecution withheld some information, then the charges can be thrown out.

  The “disclosure package,” as it’s often called, is provided to defence counsel usually in dribs and drabs, as it comes to the police and prosecutors. In my case, disclosure came in several instalments.

  In the first batch, Marie noticed no reference in the disclosure to the people who had contacted us about Darcy Sheppard. This seemed odd because sometimes the people said that they’d contacted the police first to alert them of their stories, but no such reference was made in the disclosure. As I learned, sometimes the police need to be specifically asked for certain evidence for it to be discovered. This was not the first time my unqualified confidence in our justice system was deflated.