28 Seconds

by Michael Bryant

  Moreover, Marie knew that many people might have called the police, but never shared their stories. We kept hearing, secondor third-hand, about someone who had contacted the police and received no response.

  So Marie asked for the contact information for anybody who had contacted the police regarding Attorney General v. Michael Bryant. And with that, we struck gold.

  Over a dozen people had contacted the police with information helpful to my case, but the police had failed to investigate any of these witnesses’ stories. If their evidence was exculpatory, it seems that the police were uninterested in it.

  As each name and telephone number or email address came in, Marie and our legal team would follow up with an interview. We gathered some very compelling evidence demonstrating that Darcy Sheppard had attacked people before, and done so increasingly during the month leading up to my encounter with him. It appears that he was getting more and more aggressive.

  To be fair to the prosecution, they were learning of this exculpatory evidence at the same time as we were getting contact information from the police. Later, the prosecution would work with the police to review all that evidence, all those witnesses. The prosecution, in other words, did a thorough job.

  However, just as the case was shaping up, another bombshell dropped. This time, it wasn’t good news for the defence. MARIE HENEIN is notoriously skeptical about all her cases, even the very strong ones like Attorney General v. Michael Bryant. She immediately sees the pitfalls awaiting her defence of a client, and then, as each hour progresses and she builds her case, she sees more challenges, and more, and then more. Marie sees them all, and it’s like a weight upon her. So many pitfalls, so little time, so much to do. Her preparation, for herself and her clients, is like nothing I’d experienced before.

  Her adversary in my case, the prosecutor, was himself an enigma, a different sort. Richard Peck, a B.C. lawyer, just happened to be in Ontario when the accident occurred. Peck was in Brampton in September as the special prosecutor in the corruption trial of an OPP officer, so the Ontario Crown’s offices were already aware that they had a special prosecutor in town when Darcy Allan Sheppard died. Peck was a defence counsel, most of the time. His most famous case was probably the Air India trial; his clients were acquitted.

  By 5 a.m. on the morning of September 1, 2009, Peck’s services had already been secured—presumably by the Ontario chief prosecutor, or otherwise by the Crown Prosecution Service. I don’t know whether the Attorney General, Chris Bentley, was consulted. Bentley had 25 years of experience as a criminal lawyer before he ran for MPP in a London constituency. We’d become fast friends during his first four-year term in office, my second. I sometimes consulted with him on criminal law matters when I was Attorney General. We were both too busy to continue that practice after he succeeded me. Besides, he didn’t need my advice, and kept his cards close to his chest. We’d had a coffee in 2007, when I was shuffled to Aboriginal Affairs and he to Attorney General. I gave him all the best advice I could, and thereafter we rarely discussed his business. Sometimes I needed to pester him about a matter involving aboriginal affairs. But that was it. We would have chatted a few months before the 28 seconds, when I left politics to join Invest Toronto. We wouldn’t speak again for about a year, and never exchanged a word during the time that I was charged.

  My bet is that Bentley and the Deputy Attorney General would have agreed that he couldn’t be involved in the prosecution of his predecessor and friend. I’ll never know those details. I’ve never asked him.

  Special Prosecutor Richard Peck was highly esteemed by his colleagues, in B.C. and across the country, for his intellect, knowledge, and ability. A 2008 cover story in Canadian Lawyer magazine called him “Mr. Congeniality.” His grandfather had been a Klondike pioneer and was eventually a Member of Parliament, leaving his seat for World War I, then returning with a Victoria Cross to reclaim it. Peck’s father was head of B.C.’s industrial relations commission during heated battles between labour and former Premier Bill Bennett’s Social Credit government. Peck’s inquiring mind was such, the Toronto Star reported, that he wrote a paper in 1991 dissecting the trial of Christ. It was, he concluded, a travesty.

  Richard Peck was 61 years old. Marie was about 20 years his junior, but she had done enough famous cases that no one doubted her experience. Nonetheless, going up against a lawyer who had 20 years on her would normally make one the underdog. Not so with Marie. Her confidence carried no arrogance and no doubt. It was a fact: she was a remarkable lawyer. The only question was how bad was the evidence. She had that Reggie Jackson straw-that-stirs-thedrink look. When—not if, when—the pitch came anywhere near the plate, it was going to get knocked clean out of the park.

  It’s not quite right to imagine prosecutor and defence counsel as adversaries, but often that’s the case. In theory, the defence counsel is an officer of the court, who is there primarily to ensure that the accused receives a fair trial, and to hold the prosecution to account. It’s not supposed to be personal, and the relationship between defence and prosecution isn’t supposed to be acrimonious.

  Nor is the prosecutor supposed to be fighting tooth and nail for a conviction. I should know: prosecutors are all agents of the Attorney General, which is what I used to be. I felt like a part of that team of 900 prosecutors during my four years with that ministry. During that time, we often repeated publicly, and to ourselves in internal discussions, that the prosecutor’s job is not to “win,” but to discharge the Crown’s duty. This mantra comes from a 1954 Supreme Court of Canada case that described the prosecutor’s unique role: “It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime … The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty….” To be sure, Richard Peck fit that description. Objective, dignified, and duty-bound.

  That said, the duty is not to roll over. It’s to present the evidence forcefully, to make the case for a conviction. Perhaps just as importantly, a prosecutor has to be seen by the public as doing his or her job effectively and fairly. That doesn’t mean a prosecutor is swayed by public opinion, but there is no question that part of Peck’s job was not just to be fair, but also to publicly manifest that objectivity. People were watching this case to see whether the prosecution was in cahoots with me. Was I getting favourable treatment because I used to be the Attorney General? The answer had to be no, and part of Special Prosecutor Richard Peck’s job was to ensure that the prosecution was objective, with no favourable treatment blowing my way.

  Of course the reverse was my own concern. I presumed that Peck, intellectually, understood the challenge as well as anyone. But I’d been in situations, in politics and in the courts, where the pressure to fulfill one’s duties comes with a level of public scrutiny that’s unsustainable for some. Some people just crumble in the crossfire, and the moment of crumbling might be a last-minute, panicky, underslept, hands-thrown-up-in-the-air moment. The path of least resistance, for Special Prosecutor Richard Peck, was to toss the hot potato of my prosecution over to a trial judge or a jury (the accused gets to decide whether to be tried by judge or jury). Peck’s job was to determine whether there was a reasonable prospect of conviction, but the easiest route was to just take the case to trial.

  The same was true for my defence counsel, Marie. Nothing would have showcased her talents so clearly and so thoroughly as a two-week trial defending the charges against me. As much as I, too, wanted the charges dropped, I salivated a little at the prospect of Marie shredding the prosecution’s case. I relished the thought of her interrogating certain witnesses, especially the investigating officers.

  But we knew exactly how the trial would go. Some days are good days for the defence, but inevitably some are bad. In the early days, the prosecution would present its case, including witnesses with perhaps damning testimon
y; sometimes there would be a break between the witnesses’ examination on the stand by the prosecutor and Marie’s cross-examination. If one of those breaks was at the end of the day, or before the noon-time broadcasts, then the news the next day would be the damaging assertions, only later dismantled by Marie. For those who tuned into the trial randomly, that day’s news would be all they remembered about the trial.

  I was always sure that I’d be acquitted, but just as confident that a trial would be an excruciating and damaging exercise. But that was my opinion. The more uncontroversial option, for both prosecutor and defence counsel, was to hold a trial. One of the reasons, if not the main reason, that I retained Marie Henein was that she was fearless. The uncontroversial option was of little interest to her; it was the option that best served her client that mattered to Marie.

  Undoubtedly, Marie is the best barrister I’ve met. (I still think that my ex-wife is the best solicitor, or transactional lawyer—negotiating deals on behalf of clients—but that’s for another book.) But meeting with Marie, as a client, was rarely a pleasant experience. I always left it feeling like I’d survived another day of boot camp. My brain was exhausted and I was physically drained. “Tough day with Marie,” I’d often say to Susan, if I was quiet in a corner at night. “She’s too much, sometimes.”

  Like every great barrister, she quickly formulates a theory of her case, then devises a strategy and executes it, knowing that it will require some adjustments, but never so much as to stray from the clear target, the clear strategy. Marie and I agreed on a basic strategy within ten days of my release from jail. But executing the strategy became complicated the next month, when the prosecution delivered some devastating news.

  “I’ve got good news and bad news,” Marie said, over the telephone, in mid-October.

  “Bad news first.”

  “I’ve just been advised that Richard Peck is considering adding new charges.”

  I knew immediately that this was a terrible development. The charges he was considering adding were dangerous driving (a felony) and/or, potentially, careless driving, a misdemeanour offence. These were so-called lesser charges open to the judge to make a finding of guilty, even if they weren’t explicitly one of the charges laid. However, typically for a serious matter like this, it was all or nothing. Either I was guilty of killing Darcy Sheppard, or I wasn’t. And if I wasn’t, then lesser charges would not bring any more justice to the matter.

  However, in my case, adding charges would have been a disaster for me personally. There would have been an implicit suggestion of guilt had charges been added. Most people wouldn’t get the nuance of the fact that they were lesser and therefore inclusive of the original charges. They would come to the conclusion that I was somehow the author of my own misfortune—that somehow I’d done something wrong during those 28 seconds.

  “We stick with the original strategy,” Marie said, “but first he’s got to agree to not add any charges until he hears me out on the main charges. If he does, I say we just show him our case. It’s risky but he needs to see what I see.”

  My only question was how quickly this could be done.

  So the strategy itself was straightforward: in exchange for waiving all the pre-trial advantages that a defendant holds, we presented our entire case, with a view to convincing the prosecutor to drop the charges.

  Dropping the charges is a decision within the sole discretion of the Attorney General’s agent, the Crown attorney on the case. It’s not for the police to decide. They can lay charges, but only the Crown can withdraw them. Nor can a judge interfere with that decision. I knew this well, and as Attorney General had worked with prosecutors to make some very difficult decisions to drop charges. I’d sat across from the daughter of murdered parents, to try to explain why the person we were all convinced assassinated her parents was not going to be prosecuted by the Crown. (More on that later.)

  My legal team consisted of not just Marie, but also her juniors, who were hardly junior. Margaret Bojanowska, Jordan Glick, Matthew Gourlay, and Danielle Robitaille are superb criminal lawyers. They all played a pivotal role in my defence, albeit Marie was extremely hands-on throughout. But I learned something about the criminal defence bar in Toronto. They stick together and work together to help each other, even if they’re not retained on the case. This doesn’t apply to every lawyer, but amongst those who reciprocate, there is a small group of colleagues who advance the interests of the accused, at large. So Marie was able to consult with any number of senior criminal lawyers including a couple of my own supporters, who happened to be strong legal minds.

  The strategy was simple, as good strategies tend to be. The two key potential “witnesses” were Susan and myself. Hardly ideal, since spouses and accused are rarely disinterested parties. That said, Marie made it clear to me that I should not discuss what happened with Susan. Doug Hunt, Susan’s lawyer, said the same thing to her. After all, as a witness, we’d be asked if we discussed the case so as to ensure our stories matched. Few would believe that we had not discussed what happened, but some might. It would become self-evident, Marie said, if narratives had been discussed, one contaminating the other.

  So we took her advice. It turned out to be great legal advice, and terrible advice for our marriage. Not being able to discuss the single worst half-minute of our lives prevented us from providing the other with a level of support that was desperately needed. In hindsight, invariably as late as it is clear, I regret following that advice. But it’s too late now.

  Besides, he said/she said testimony will only go so far. When it came to getting charges dropped, obtaining watertight expert evidence was the linchpin. The prosecution could drop charges only if we could present irrefutable forensic evidence from the finest experts we could find, backed up by peer-reviewed expert analysis, and bolstered by additional expert evidence surrounding it.

  That was Marie Henein’s strategy. One major challenge, I learned, was the cost. Marie generously agreed to defer charging me for her legal fees until I could start affording them. I was unemployed for months after the arrest, and even thereafter my employment income reflected my productivity, which wasn’t much.

  But the experts weren’t governed by principles of pro bono publico (the public good) that are supposed to guide my legal profession. The experts needed to get paid in full, every two weeks, or they would stop doing their work. If the delays in accounts receivable stretched too long, they’d just refuse to work the case. In other words, they operated as they should: as a business requiring compensation for services rendered.

  This meant that I required a lot of money to pay for expert evidence at premium rates, in order to meet Marie’s extremely tight timelines. The experts all worked overtime and were told to put my case at the front of their line, at whatever cost was necessary. This is how Marie works. On every single case.

  And that required a cash flow that I couldn’t generate. I did not have anywhere near that capacity. I’d been a politician most of my professional life, and there is no pension for Ontario MPPs elected after 1995. The entirety of my severance from the Legislature was swallowed by these costs within a month. I had to borrow very large sums, and a quarter of the cost was defrayed by the stunning generosity of friends.

  In any event, for my defence, Marie Henein assembled a dizzying array of forensic engineers and video-pixel analysts and biomechanical engineers and forensic pathologists. The forensic evidence required a back-and-forth between lawyer and expert, and lawyer and client, to ensure that the expert evidence matched my imperfect sense of what happened. Moreover, witnesses for the defence needed to be met, interviewed, and cajoled to swear an affidavit. Meanwhile, Marie took lessons to learn how to drive with a stick-shift, so she could better comprehend those critical seconds involving my Saab’s manual transmission.

  (All of this was done amidst Marie’s extremely busy law practice with dozens of clients and dozens more coming in, plus her supervision of her associates, plus the conference speeche
s, volunteer work, and demands of her personal life: being a wife and a mom. In fact, the only thing that could interrupt Marie working with a client was her family. When they called, she dropped everything, every time, which was not infrequently, no matter how serious was our meeting. So every so often a conversation flickered between her work [“the new engineer’s report jives with—Michael! You with us?—the video expert’s timing on 2nd brake stop—”] and her family [“the hairbrush is in the top drawer, left corner”].)

  But that was only half of it. Her boldest decision was to disclose everything we had to the prosecution, rather than hold it back for the trial. The element of surprise is an important tactical advantage for the defence. Whereas the prosecution must disclose the entirety of its case, the defence need not, since otherwise the prosecution can work with police to discredit the defence in anticipation of trial. The risk that Marie was taking, which I fully supported, was that the prosecution would fail to drop the charges, at which point it would be too late to take back all our cards.

  In October, Special Prosecutor Richard Peck agreed to meet with Marie in the coming weeks to discuss his adding new charges. He wouldn’t do so, he undertook, until he gave Marie an opportunity to talk him out of it. What Peck didn’t realize was that Marie was going to overwhelm the prosecution with the full force of our case.

  So Marie interviewed all the many exculpatory witnesses, and assembled the forensic evidence. The latter was the engineering reports setting out the movements of my Saab during the 28 seconds.

  But the seminal expert was the video expert. He took what the police had provided—all those videos of shadows and figures and the Saab and its headlights—and made sense of it. He was able to break down the event to 1/100 of a second. It was through that process, using all the expert reports, that Marie was able to determine that the entire incident, from Sheppard pulling in front of my car to the moment when his skull fatally hit the curb, took up 28 seconds. Marie was able to, in essence, paint a picture of every second of the 28 seconds. It was the art of the defence.