28 Seconds

by Michael Bryant

  Then she went a step further. Marie took all that expert evidence and had still more experts peer review our video expert’s report, to ensure that the evidence was unassailable. The combination of expert, peer-reviewed videotape evidence, combined with the other forensic experts, gave her the tools she needed to box the prosecutor in. Faced with this seemingly watertight defence, the choice to drop the charges would be, the theory went, inescapable.

  We knew, however, that the prosecutor could proceed to trial in any event. Once the charges are laid, there is no moment in the criminal justice process where the prosecutor has to formally explain why he or she is proceeding with the prosecution. (A procedure called a “preliminary inquiry” also exists, which presents a logical point for the prosecutor to review the prospect of conviction, but again this lies within the discretion of the prosecutor himself.) In our case in particular, the pressure on Peck to avoid favourable treatment of the former Attorney General meant that all the evidence in the world wasn’t necessarily going to prevent a trial.

  The last part of the strategy required Marie to be an effective advocate, and that didn’t mean barking demands or making idle threats. Though the totality of the forensic evidence was powerful, the real genius of her advocacy was how she came to earn the trust of her adversary, the prosecutor, Richard Peck. Marie Henein is known for being tough, but she can also be charming, respectful, funny, candid, humble, and attentive. But being likeable isn’t enough to earn an adversary’s confidence. Marie had to conduct herself ethically as both acting in my interests and as an officer of the court. The prosecutor ought not be misled by defence counsel, albeit the line between being a good defence counsel and a learned colleague is a fine one. At times, the work between prosecution and defence counsel might appear to be collaborative, but it’s not. Nonetheless, cooperation, collaboration, debate, and fact-finding are difficult to distinguish when both counsel are working as they should.

  Marie Henein went into a meeting with Peck and his Ontario agent Mark Sandler in December 2009, a few months into the prosecution. At that meeting, she disclosed much of what we’d assembled about the 28 seconds—a bold and unprecedented tactic. It worked. Peck decided to hold off on adding charges, and permitted Marie to make a full presentation once we had our case ready for him to consider whether charges ought to be dropped.

  That presentation happened in March 2010. There were many questions, and Marie, I’m told, did a masterful job. But still, no signs of which way the prosecution was leaning were forthcoming. In fact, the risk taken by Marie, the overall strategy to give the prosecution our entire case, was agonizing for her. I felt confident that it was working, but she did not. The prosecutors agreed to be open minded, but never offered any initial impressions in December or March, when the evidence was fully disclosed. Everything that we presented, in other words, was with prejudice. It would either lead to the charges being dropped, or they would spend all their resources and time on blowing holes in our case. Again, we were confident there were no holes, but that didn’t make the decision any easier for Marie.

  After the March presentation by Marie, Sandler suggested to Peck, who agreed, that perhaps it was time for Susan and I to make a statement. We had declined to do so with the police, which was unquestionably the right decision. The police, in my case, were simply trying to build a case against me. Anything I said that was exculpatory would have been discarded. Anything that could be construed as incriminating would have been used against me. As I learned, that approach was typical of most police work today. The police are your friends, no question, if they perceive you to be at risk, or otherwise a victim. But they can be your adversary otherwise. My advice to people under investigation is to speak with a lawyer before making a statement to the police.

  We decided to make a statement to the prosecution, in my case, as part of the police and prosecution’s full review of all evidence, and reinvestigation, flowing from Marie’s presentation in December 2009. It was risky but a good-faith commitment, consistent with our full disclosure of all the evidence in an effort to get the charges dropped.

  In early April the interview took place. If I looked worn out, it wasn’t from nervousness about the interview. It was a result of Marie’s preparation.

  As a lawyer at McCarthy Tetrault in the late 1990s, I had the opportunity to watch lawyers conduct very effective, sometimes vicious, cross-examinations. One of my mentors, Tom Heintzman, was said to have put a witness into an emergency ward with a heart attack. Another, the late great David Little, made my ears buzz afterwards, like after an overly amplified concert, from his bellowing voice.

  Yet Marie was in a different category of inquisitors. She seemed to channel Hannibal Lecter, so able was she to find a person’s deepest frailties and exploit them. As grateful as I am to Marie Henein, the experience was at times as pleasant as a burst appendix. She was relentless and, as the job sometimes demands, seemingly heartless.

  Once, we were reviewing a pathologist’s report, which detailed the injuries of Darcy Sheppard and speculated upon exactly what happened at his time of death. Contemplating my own role in Sheppard’s death was usually emotional for me, but Marie would have none of it. When I asked to take a break, and walked outside her office to the water fountain down the hall, she followed me. Pulling me into a conference room, she proceeded to chew me out.

  “If you need some therapy, go to a therapist, but I’m your lawyer, not your fuckin’ therapist. You’ve got to get over yourself and get it together. Stop getting so emotional. Start getting seriously more helpful. Get your shit together.”

  This sort of pep-talk/brow-beating was tough to take, but I never doubted that Marie was in my corner. Nobody knew more about what happened that night than Marie—more than I did, for she knew, as a result of her fact-gathering and analysis, more than any mere memory-holder could muster. So her insistence on my innocence gave me great comfort, offering an unspoken blessing of tough-love, à la Henein, to this day.

  In any event, Susan and I made separate statements, under questioning from Mark Sandler, at a court reporting office in downtown Toronto. Sandler’s demeanour was professional and inviting—of the truth. The questions were meticulous and exhaustive. The level of detail he sought seemed, to me, as much a test of my credibility as a rendering of the facts themselves. No one can be expected to recall everything, and I was no exception.

  Sitting beside Sandler was a detective, who was ever present throughout the investigation and prosecution. He was always congenial, and made a suspect feel as if he were quietly on your side. I doubt that was ever actually the case. When he finally agreed that the charges ought to be dropped, I’m told, he was the last hold-out amongst the police and prosecution. Although the prosecutor had sole discretion to drop the charges, a dissenting police officer was to be avoided, and his input was crucial to any final decisions.

  I wasn’t present at Susan’s interview, obviously, but she said that it went fine. As it turned out, she remembered little of what had happened. It was clear that she hadn’t discussed the case with me, Marie said, observing the interview. (Susan had separate representation from former Ontario Chief Prosecutor Douglas Hunt, Q.C.) My interview was also straightforward. No surprises. I answered the questions and nothing more. If I didn’t know the answer, I didn’t speculate.

  Except when asked what I’d do with the benefit of hindsight. “I never would have left the house.”

  THIRTEEN

  Uncomfortably Numb

  “Next stop, next stop, next stop, next stop, next stop.”

  I repeated these words over and over to myself. I’d missed my stop again. Bus stop—or, technically speaking, Toronto Transit Commission (TTC) streetcar stop. Toronto’s municipal government owns the transit system for the city. As a politician, I’d been a member of a provincial government that invested a lot of tax dollars in the transit system for Toronto. But it’s never quite enough, and inevitably we were making up for the negligence of governments past,
federal and provincial.

  Compared to other world-class cities, the transit in Toronto at times can be embarrassing. The “streetcars” look like museum pieces: old—really old—beasts of metal that rumble along tracks laid out on certain main thoroughfares, like the one near our house. In fact, the system was being updated, finally, and so-called rapid transit lines (aboveground subways) that were faster and sleeker and more efficient were scheduled to replace the old streetcars in a few years. For now, it was the streetcar, and I’d managed to miss my stop—again.

  The missed streetcar stop, it seemed to me, summed up all that was distracted and messed up with my personality. I drove some people bonkers with my incapacity to focus on the moment. I’d go to get popcorn at a movie theatre and return half an hour later, unable to explain where I’d been. I was late for everything—everything—no matter how important. I’d fail to call people, email people, meet people, meet deadlines, work on projects, work through a to-do list.

  I had boarded the streetcar at Yonge and St. Clair. My stop, Avenue and St. Clair, was one full city block away, barely enough to justify taking the streetcar rather than walking. But it was -10°C, so I got on the streetcar with my trusty weekly pass. Why not take the streetcar, I thought. Faster and warmer.

  Not so much, thanks to my own version of tunnel vision.

  I’d missed that damn stop so many times because I’d get on that streetcar and forget where I was. Whatever distracted me at the time absorbed all my attention. A tornado could not bring me back to the present. I had tunnel vision, unable to see anything but what was in front of me in that tunnel.

  From Yonge to Avenue Road on the streetcar was four stops, or about four minutes. If I were to get off at Avenue Road, I had to concentrate on getting off and only on that. If I started reading, or observed someone who reminded me of something, or got on my BlackBerry, or eavesdropped, or listened to the music playing through a nearby iPod’s earphones, I’d miss the stop.

  I’d wake up sometimes miles down the line, and have to get off and get on the streetcar heading back the other direction. It didn’t matter if I were heading east or west, I missed it all the time. Getting home, finding home, was the hardest thing.

  This time, I had managed to miss the stop going west, got off at Spadina, a half mile too far, and got back on the streetcar heading east. And managed to miss that one too, ending up at Yonge Street again. I’d missed my stop twice. So this time, I started talking to myself from the moment I got on the streetcar. Next stop, next stop, next stop, next … stop.

  “YEAH, WHAT HAPPENED?!” my son Louie was asking me, for the third time.

  I was trying to explain to him and Sadie what was happening in our lives, a couple days after I’d returned home from jail.

  The day after the accident I had called Marie Bountrogianni. Marie was elected as a Liberal MPP in Hamilton in 1999, the same year I was first elected. She was a child psychologist who became Minister of Child and Youth Services during the first McGuinty government in 2003, before retiring from politics in 2007. It’s hard to think of anyone who would have been better equipped to advise the terrified parents that Susan and I were.

  Dr. B came to our house soon after I called her following the accident. She was great. She told us not to be emotional with Sadie and Louie. We were to tell them the facts, just the facts, to try to be as objective as we could.

  So I told them, in as generic a way as I could, what had happened that night. I didn’t go into details, in part because I had a hard time describing it in any way to anyone. Louie kept saying, “I don’t understand. What happened? Did you run him over? Did he crash his bike into you? What happened?”

  My brief explanation to the kids about “the car accident” that involved “a man dying” perplexed them. And no wonder. I couldn’t get into details, for fear that my kids would get subpoenaed to testify. That might have been a little paranoid.

  A few things stuck out for them: the man who died was drunk, he was on a bicycle, daddy was driving, mommy in the passenger seat. I left out the part involving police charging me because I didn’t want them worrying about daddy going to jail. Thereafter, they referred to Darcy Sheppard as the “drunk guy”—which had its own ironic twist. That’s one of the things that’s stuck in their heads ever since. They now think that anybody who’s drunk is very, very dangerous and nothing but trouble. And I suppose they are not far wrong.

  We also talked to their teachers and their school principal to make sure they weren’t taking heat from any other kids about my situation. The school staff were remarkable. The principal and teachers would discreetly monitor conversations from time to time. So far as we know, there was never any problem from other students. This may have been a reflection of how the parents behaved at home.

  Through much of it, the kids just saw my picture in the paper and assumed it to be business as usual. That’s one reason to be grateful, I guess, for a little routine celebrity of the sort that political life offers. The one thing Sadie and Louie didn’t like was when I resigned from Invest Toronto. They thought it was a big deal to be president of something. They still ask, “When are you going to be president again?”

  Finally, they gave up after getting their questions poorly answered, and asked to build a fort in the basement. About an hour later, I was upstairs in my bedroom, when I overheard the two of them playing in Sadie’s room. They were playing a game called “car crash,” each taking turns being either the driver or the “dead guy.”

  This was called processing, Marie Bountrogianni told me later. It was very positive, she said. Uh-huh.

  When they spotted me at their doorway, Louie asked: “Daddy, will you play car crash with us? You can be the driver!!”

  MY MOM AND DAD had come to Toronto from Victoria soon after the accident. They had been very frightened for me. When they arrived in Toronto, I made the mistake of being too much the lawyer and too little the son when I spoke to them. I spoke as if there were no emotions at play. I tried to explain how things were going to unfold, almost like a technical briefing. Meanwhile, they were generally shocked over all the changes, so my odd demeanour was just another item on the insanity menu.

  We sat down at the kitchen table, and I started going through the possible criminal proceedings and processes—trial by judge, trial by judge and jury, Ontario court of justice provincial court or superior court, indictable charges versus avoiding a preliminary inquiry. Very procedural stuff.

  “So, in other words, if we opt for a preliminary inquiry, then …”

  Having sat with rapt attention, her eyes betraying confusion and compassion, Mom just burst out crying.

  Here was her eldest son, the boy who’d gone to Harvard, gotten elected, married with beautiful children, the son who’d been nothing but a source of pride for her. Now, I was in a very serious predicament.

  She had thought that I’d never be a source of worry, by this stage in my life. At a certain point, moms want to be able to ease up on the worrying; they just want their kids to be okay. And now I’d been arrested and, from her perspective, the mother’s perspective, that dreadful perspective of imagining all the things that could go wrong, I was maybe going to jail.

  It was awful for her. Awful. When I saw her crying that day, it was the only time that I felt really angry about what had happened to me. Not for me, but for her. Police make decisions that can save people’s lives, that can end people’s lives, that can destroy people’s lives, I thought, watching my mom weep. The power to break a mother’s heart, because of a rush to judgment, because of timorous souls, too lazy or too nervous to conduct a proper investigation, to face a little heat from the media….

  All that was too much to expect of them, as I’ve said often: one cannot build a justice system around how to charge an ex–Attorney General. The system is going to slip a disk bending over backwards to avoid the appearance of lenient treatment, necessarily rendering a bizarre process and result. The hours logged into this case by the spec
ial prosecutors were likely 10 or 20 times the amount of time a Crown would normally put into a case. The two dozen Toronto Police Service officers involved in a case spanning 28 seconds was hardly standard procedure.

  I will say this once and not belabour the point, but I’d be remiss not to repeat what’s been said to me again and again, by police, prosecutors, defence counsel, and judges: normally, particularly in traffic situations, the police need to conduct an investigation, obtain a reconstruction report, speak to witnesses, and gather all evidence before charges are laid. It is not unusual for Toronto Police Services to wait weeks (or even months) before deciding how they will proceed with such charges. In my case, the police couldn’t wait a news cycle. I got the opposite of special treatment. I was disadvantaged by virtue of being a former Attorney General, but so be it. I’d not trade in those four years as Attorney General for standard treatment by the criminal justice system. I’d not trade in those four years for anything. And the point remains that a justice system cannot be designed for such exceptional cases. One just has to hope that the system eventually works it out.

  I furiously knocked over stuff to find Mom a Kleenex, thinking: I know, I know, I know: I waived my rights to receive typical treatment by the justice system, by the media, by virtue of putting my name on an election ballot. No matter that no one gets to actually waive that right explicitly. Supposedly it comes with the territory. I get it. I get it. But don’t expect my mother to get it, and don’t expect me to like it.

  After that, I stopped explaining to my parents how the system worked and just started telling them everything was going to be okay.