28 Seconds

by Michael Bryant

  I shook my head imperceptibly. That wasn’t the point, to me. The point was that Sheppard was steadily cracking up in a universe that was chaotic enough, for him. I’m familiar with a few of Darcy’s demons; familiar with the vacillation between sense and nonsense; familiar with the sulphuric winds of madness. But at its worst, I can escape to an inner sanctuary, that cave within a cave that I sought out in my night in the cell; that quiet place, deep under the turbulent Pacific Ocean, where everything went more slowly. However, that exit was blocked, for Darcy. Likely it was blocked because he was drunk. Or maybe he’d just reached a point of such mania that the only exit was destined to be violent. In any event, those 28 seconds on Bloor Street were the end of a long road for him, like a diver doomed for the bends, who’d started way too deep, and rose way, way too fast.

  I looked over again at Allan Sheppard, who was poised but clearly pained by this part of the prosecutor’s explication. “These facts that I am outlining here again are being mentioned because they have significant legal relevance,” Peck emphasized. “They are not to demonize Mr. Sheppard, nor as the basis for anyone suggesting that he somehow deserved his fate.”

  Demonize? I thought, blinking again toward his father. Impossible. Darcy had enough demons, for which I judged not, and for which he deserved more compassion and aid than ever offered or received in his life, at least from our criminal justice system. Allan Sheppard had done all he could, I thought. But here we were, in a courtroom, yet again, dealing with the ravages of Darcy’s addictions, nightmares past, and his unrelenting demons. At least the Crown, Richard Peck, had the decency to pay homage to the darkness that was not Darcy himself, but the living hell in which he resided.

  This was all cold comfort to my wife. I didn’t always share these thoughts directly with her. My obvious and great compassion for Susan’s suffering, at Darcy’s behest, was poorly expressed. That I could empathize with Sheppard’s suffering was a product of my recovery in sobriety, itself an ongoing mystery to Susan. But it was a singular journey for me. Just as my connection to his afflictions could be shared only by someone in the fellowship of the addicted. Somehow it all just sounded like I felt more for him than I did for her, which wasn’t true at all for me, but that’s how it felt sometimes for Susan.

  What a mess. What a mess.

  Then Peck provided a few comments on Sheppard’s “criminal record going back many years,” and provided some detailed background on Darcy Sheppard’s life. (More on that in a separate Chapter.)

  Finally, the prosecutor described the 28 seconds. For the first time, I felt very anxious. Reliving that night was something that I’d done, and Marie had tried to elicit from me, but I’d never heard someone describe what happened, objectively, based on the evidence. It made it all feel, to me, too real.

  Nothing he said differs from the 28 Seconds Chapter, as far as I can tell. In any event, here were some of the key findings: “One of the largely consistent themes [arising from the evidence provided by witness accounts and the videos] is that Mr. Sheppard was acting loudly and aggressively, confronting Mr. Bryant, while he and his wife remained passive. Ms. Abramovitch, in her statement, described Mr. Sheppard as terrifying.”

  Peck then turned his attention to the 2.5 seconds that became the focus of many a YouTube video, usually doctored up to make the scene look menacing. It’s basically the only time Sheppard and the Saab came into contact, prior to his own efforts to climb into the Saab as I tried to get away. It was the 2.5 seconds that became the focus for Peck in determining whether to prosecute the lesser charge of dangerous driving (as opposed to dangerous driving causing death, or to criminal negligence causing death):

  At this point Mr. Bryant’s car has stalled again, and he describes himself as being in a state of panic. He was trying to get his car started and concentrating on that task. The Saab had a sensitive and tight clutch, as confirmed by the investigation.

  When the vehicle restarted it accelerated into Mr. Sheppard causing him to land on the hood of the vehicle. At the point of this third movement forward of the vehicle, Mr. Bryant states that he had been looking down while engaged in his efforts to restart the car. When he looked up he saw Mr. Sheppard on the hood of the car and immediately hit the brakes.

  The expert evidence demonstrates that approximately 2.5 seconds elapsed from the time the vehicle started its forward motion to the time it came to a stop. The brake lights were visible approximately one second into this forward movement. There is a little bit of debate among the teams of experts on that. One expert has it at 0.8 seconds, and the other has it at 1.4 seconds, it’s a flash.

  … There is no evidence that the third movement at a relatively low speed caused any serious injury. It was brief in duration.

  In other words, Peck looked at prosecuting me for dangerous driving, based on actions that took place over the course of between 1.1 seconds and 1.7 seconds. The laws of physics alone would make it impossible for someone to commit the felony dangerous driving from a stalled car in one-and-a-half seconds. The charge would not be pursued.

  The prosecutor continued to work through the 28 seconds, meticulously. A few remarks stuck out, for me, as I sat through his submissions: “Mr. Sheppard then leapt onto the vehicle as the vehicle began to move away…. The accounts of the eye-witnesses, coupled with the forensic examinations, confirm that Mr. Sheppard was attempting to attack Mr. Bryant at that time. When he leapt onto the car, his hand or hands were inside the vehicle…. Impressions consistent with having come from Mr. Sheppard’s jeans were found in the rubberized area on the top of the driver’s door. This latter finding is consistent with the witness who described Mr. Sheppard as being in the car from the waist up.”

  The thought of him growing out of the door and into the car, smothering me, reminded me how close Sheppard had got to Susan—a couple feet away. All along, her presence had driven my actions. It was one thing to try to get out of the car to defend myself. It was another when she too was at risk. Now it was clear to me, in that courtroom, how it might have been for her.

  Remember, Susan and I had never discussed her perspective on what happened. She never told me how close she’d come to being potentially struck by Darcy Sheppard. As it turns out, it’s all blacked out for her. She remembers none of this part of the 28 seconds.

  How fast was the car going? “Expert analysis of some of the video has determined that the average speed of the vehicle during this drive was somewhere in the range of … 21 miles per hour. It appears that the vehicle may never have left first gear during the course of this drive.”

  What of the media reports that I was bashing Sheppard against trees and a mailbox? “A forensic examination of the vehicle and the curb demonstrates that the Saab did not rub up against the curb or mount the curb at any time during the portion of the drive.”

  Was Darcy dragged down Bloor Street for a kilometre, as reported? “The total distance from the point where Mr. Sheppard jumped onto the car, to the point where he fell off, was approximately 100 metres.”

  How did Darcy Sheppard actually die? Was he run over by the Saab? Did the car crush him? “The vehicle was travelling on the south side of the eastbound lane. A fire hydrant was located close to the south curb in the area of 131 Bloor Street. The side cap of the fire hydrant pointed toward the curb, that is toward the north. The distance from the side cap to the curb was one foot. This side cap caught Mr. Sheppard on the left torso, on the exterior of his torso. This caused him to dislodge from the car, striking his head either on a curb or on a raised patch of asphalt. The mechanics of his death involve an impact to the right side of the head that caused fatal damage to the brain stem.”

  As those words were spoken in court the air hung still; not one of the more than a hundred people in the courtroom stirred or shuffled or coughed. It was as if everyone were holding their breath.

  How long did all this take to unfold? “Based on an analysis of the elapsed time from the various videos, it appears that only 10.5 seco
nds elapsed from the time Mr. Sheppard blocked the Saab to the time he was thrown from the hood in that third forward movement…. [T]he time from when Mr. Sheppard first pulled in front of the Saab, until he was dislodged from the Saab at 131 Bloor Street when he fell off the car and died, was less than half a minute. Slight disagreement, one expert has it at 27.5, and one has it at 28.5 seconds, less than half a minute.”

  This was the first time that the exact number of seconds had caught my attention. I’d always been aware that it was under half a minute, at least since Marie had told me as much. But the phrase 28 seconds started flashing before my eyes. 28 Seconds.

  Peck then outlined the law of dangerous driving causing death, of criminal negligence, and of the lesser charge of dangerous driving. I had tuned out by now, even as he was speaking the critical words: “The Crown must evaluate the totality of the evidence. Having done so, there is no reasonable prospect of conviction on these or other Criminal Code charges. Accordingly, I have asked that these charges be marked as withdrawn.”

  All I could think of was: 28 Seconds.

  As I heard the words “charges be marked as withdrawn,” I awoke from wherever I was. Charges withdrawn. 28 Seconds.

  In closing, Peck put aside formalities, and made one final observation about this case of “extremely tragic consequences.” He said: “One man’s life has been ineluctably affected, while another’s has been taken. Almost 400 years ago John Donne said that every person’s death diminishes us. Those words, true then, resonate today in the solemnity of this courtroom.” As they did with me.

  And with that, the special prosecutor sat down, his work completed.

  When my lawyer Marie Henein addressed the court, it was, for me, anticlimactic yet deeply moving. If anyone had awaited her refutation of his words, they would be disappointed. She simply confirmed what the prosecutor had found, but with some powerful perspective. I felt profoundly supported by Marie Henein at that moment, as if all along she had been roughing me up, testing me, preparing me, gutting me, for this moment of great advocacy and compassion. If I had been at times detached and distracted during Peck’s presentation, I was not when Marie spoke. I looked over at Susan again, who sat up, shoulders back, breathing more deeply.

  Marie said that what happened on August 31, 2009, was about “one thing and one thing only. That the commonplace decisions that each of us make every minute of every day can put us in a situation that, in our wildest dreams, we would never have imagined. It could have been any of us driving home in that car on August 31, 2009, and it is this that resonates with, and has struck a chord with, the numerous members of the public, many of whom have actually taken the time to contact me and to speak about these events and how they have impacted them.

  “Tragedies are rarely expected or intended. The little decisions we make daily, meaningless and quickly forgotten at the time, can have a life-altering impact.”

  Her submission alone, she noted, had taken much longer than this particular life-altering 28 seconds.

  “None of us think of our lives changing in twenty-eight seconds. Twenty-eight seconds and you are in the criminal-justice system. Twenty-eight seconds, you are in the back of a police car, twenty-eight seconds and you do not get home to your children, twenty-eight seconds of heart-breaking tragedy for everyone. It is twenty-eight seconds that Michael and Susan will live with for the rest of their lives. It is twenty-eight seconds that has saddened us all.”

  Most important, as far as the court was concerned, she said, it was 28 seconds that investigators had spent months dissecting and analyzing and researching. And at the end, the only conclusion that was available from the evidence was to withdraw the charges.

  Justice Bentley spoke at the end, affirming the proper role of a judge in a prosecution: pursuing or dropping criminal charges “is totally up to the Crown.” He rightly complimented Henein, Peck, and Sandler, then spoke the words I’d awaited since the night I spent in jail, nine months previous. These words made me choke up, and dissolved a great weight upon me. “So at the request of the Crown, the charge is withdrawn. Adjourn the courtroom.”

  I exhaled, and turned to Susan.

  She offered a curious look, and blurted out: “So that’s what happened!”

  The astonishing truth is, she didn’t know, until that morning, exactly what had happened. She remembered only about 10 of the 28 seconds. And we’d been ordered by our respective lawyers not to discuss what had happened, in case we went to trial and were summoned to testify. It would be bad if our accounts looked as if they’d been, for lack of a better term, matched and married so as to provide mutual support. We were such pious officers of the court that we did as we were told.

  Susan wiped away some tears. She’d been elated all day, and since we’d learned the news that the prosecutor was dropping the charges. Peck’s presentation was fascinating to her, as she had felt completely in the dark about the events, and about the defence efforts and activities over the past nine months. Perhaps that’s because I too was disconnected from a lot of details, or perhaps because I’d failed to loop her in, for whatever reason: to avoid perceived collusion regarding her potential witness testimony, or because I was simply dysfunctional.

  In any event, Peck’s presentation was revelatory to Susan. Her intellect was stirred, not her emotions. But Marie’s presentation had been both intellectual and gut-wrenching. It had deflated Susan’s pink cloud, at least momentarily, and the crash to earth left her turned inside out. Susan was also angry at Marie’s conciliatory words toward the police.

  And this is an important distinction that Susan would often make, in her own personal narrative of the 28 seconds. For Susan, it wasn’t about how anything could change in a New York minute. It was about the power of the police.

  “I can be an upstanding citizen,” she said to me at our kitchen table one night, “who does nothing wrong, but who can still have my life ruined by a police officer, just like that,” snapping her fingers, “because they’ve got tyrannical powers…. Okay, fine, the prosecutors and the judges can clean up the cops’ mess. So the charges got dropped against you. But just look at us. Look at what they did to us.”

  So Susan bristled at any kind words about the work of the police in my case. Her fear, her outrage, at the current state of police powers in Canada remains the same today.

  But now, at Old City Hall, we were done with the police. We hugged for a long time. We were swarmed by friends. Then Marie Henein appeared suddenly before us. She looked pleased, content, in a fashion I’d not seen before. A grin, neither enthusiastic nor surprised.

  It was time to thank her.

  “Marie. Thanks for saving my life.”

  “You’re innocent, Michael, and I just did my job.” And she shrugged. That was it.

  I watched people hurry out of the courtroom. Some more hugs were exchanged with well wishers, but they were awkward and rushed, on my account. I was agitated, nervous about what would happen next. I knew that others had done their work, and rendered the just result. But now I had to go face the media. Now it was my turn to say something, do something, for the first time since summer had passed from autumn, to winter, and finally spring.

  We lingered, as the courtroom buzzed with conversation, so as to let Mr. Sheppard and Misty Bailey leave. Then, Marie, Susan, and I left Old City Hall through a back door, where one of her associates was waiting with a car, and we drove over to the Sheraton hotel for the press conference.

  I read a statement that I had worked on over the weekend. I wasn’t really on my game. I was still out of it. A former staffer, Sandra D’Ambrosio, told me later that I came across as someone who was pretty messed up. “As you should be,” she said. “I wouldn’t have changed a thing.” In this case, perception definitely was reality.

  What I told the media was that I would never forget the unnecessary tragedy of that night. “A young man is dead and for his family and friends that remains the searing memory. To them I express my sympathies and si
ncere condolences. I have grieved that loss and I always will…. This has turned out,” I said, with more knowing than anyone really understood, “to be a tale of addiction, mental health, an independent justice system, a tragic death, and a couple out on their wedding anniversary with the top down. It is not a morality play about bikes versus cars, couriers versus drivers, or about class, privilege, and politics. It’s just about how, in twenty-eight seconds, everything can change. And, thereafter, time marches on. And so will I.”

  Afterwards, Marie and I took a few predictable questions, about my future, and about facts that Peck had addressed.

  After that, as I was leaving, a reporter shouted out to me, “Are you going to get another convertible?”

  In the old days, I would just open up my mouth and let some typical quip come out. But I just bit my lip and said, “We’ll see.”

  That response may have provided the glimpse of a more subdued, restrained Michael Bryant. But it also gave me an idea.

  Susan and I got dropped off outside her office at First Canadian Place. Waiting for us there was Stephen LeDrew, a former president of the Liberal Party of Canada, a former Toronto mayoral candidate, a lawyer, and a personality on CP24, with his own popular show. He’d been clever enough to figure out that we’d probably go to Susan’s office and was there seeking to arrange an on-air interview. He left graciously after I declined.

  I’d spent a lot of time talking with Jan Innes about whether or not to do any media. The main story was to be told by Peck, she said, and anything I said would just muddle that result. Doing a bunch of media would look self-serving, she thought. True enough. Besides, I wasn’t interested in moving public opinion about myself. People would think what they’d think, and that wasn’t for me to change.