Of course, most trial judges ask these questions. The same applies to a prosecutor exercising her quasi-judicial function of determining whether to proceed with a prosecution. The same ought to apply to police when laying a charge, but for too many the knee-jerk reaction is to charge first, ask questions later.
As Supreme Court law clerks, there was something quite abstract about the appeals before us. The human dimension was not fully seized upon by me, anyway. This is particularly awful for an accused when the media present a seemingly comprehensive and authoritative judgment of an accused, notwithstanding that journalism can rarely be comprehensive and authoritative when it comes to guilt and innocence in the eyes of the law. It’s not just young law clerks who fall prey to this tunnel vision.
Thus, the Duke University lacrosse players who were assumed to be guilty of a rape in March 2006, a year later turned out to be victims of a “tragic rush to accuse,” in the words of North Carolina Attorney General Roy Cooper. In response to the original allegations, Duke University cancelled the remainder of the lacrosse season for the team, and forced the coach to resign. The original prosecutor, who’d been up for re-election, was later disbarred and convicted of criminal contempt. Sadly, there are many other examples from the U.S.
Still, it gave me great comfort, in that jail cell in the wee hours of September 1, 2009, that our Canadian system does not have the perils that come with elected prosecutors and judges, as is the case in the U.S. for some courts. Judges and prosecutors in Canada are independent because they can be unpopular but still keep their jobs. (So, for instance, my former Deputy Minister Murray Segal could stick by his publicly detested plea bargain with Karla Homolka—the “deal with the devil”—and go on to a successful career in the justice sector, because he was doing his job exactly as he should.)
But my observation here goes a step further. People are limited by their own experiences. Comprehension and compassion for the innocent person accused of a crime is something best lived, rather than simply understood.
The presumption of innocence, in other words, requires a level of skepticism of the system, an outlook that is not always shared by all. A few police officers have privately told me that I never should have been charged in the first place. But that wasn’t the perspective, at the time, of the Traffic Division officers, when they saw the body of Darcy Sheppard, dying on Bloor Street. At that moment, their compassion rightly went out to Sheppard, and the human impulse to seek a reckoning was amplified by that emotion. Their working assumption was “road rage,” because they saw a dying cyclist and an uninjured motorist.
My point is that the decision to charge someone has profound consequences for the accused. Their liberty is suspended, reputation ruined, and fiscal resources spent. For an accused, their security of citizenship—that one can just live life and not be randomly harmed by the people paid to protect them—is upended.
I might have said “cry me a river” had I been reading such a sentiment a few years ago. No more. The presumption of innocence, I’ve learned, is more a legal abstraction than a reality. The presumption is often effected when the final verdict is rendered. Along the way, however, criminal charges carry with them the unspoken assumption that the accused simply must have done something wrong.
A couple infamous cases bear repeating. Donald Marshall Jr. spent 11 years in jail for a murder he did not commit. When he was finally acquitted, the appeal court still called him “the author of his own misfortune.” This phrase has always haunted me, and I could often see that horrible judgment in people’s eyes.
During my final months as Attorney General, Stephen Truscott’s conviction for murder was found by the Ontario Court of Appeal to have been a miscarriage of justice and he was formally acquitted of murdering Lynne Harper in 1959. Truscott was sentenced to be hanged, but that sentence was commuted to life imprisonment. He served 10 years, then slipped out of the public eye, living with his family under an assumed name, until 2001 when he utilized a federal procedure to review his conviction. The Court of Appeal would review nearly 250 fresh pieces of evidence, before exonerating Truscott. I immediately apologized, on behalf of a system that had changed so much, I’d thought, since 1959. Truscott wasn’t impressed with my apology, but I received a generous note from his mother, kindly explaining why no apology would suffice, and rightly so.
Again, these miscarriages of justice teach everyone about the imperfections of the system. It’s easy, however, to shrug them off as mere exceptions to a normally glorious record. Not so to the wrongfully convicted. Their lives are ruined, and even judicial correction and exoneration become cold comfort. Truscott and Marshall lost too many years of their lives to prison, and suffered judgments thereafter, by too many, as being the authors of their own misfortune.
The truth is the justice system itself was misfortune’s author for these men and others. Yet only the wrongfully convicted bear the lost years, the inevitable shame.
I can’t imagine just how ruinous the tragedy is for them and their families. Being wrongfully charged and then exonerated nine months later was more than enough for me.
All of which makes the time between charges laid and charges dismissed a linchpin to the principles of fundamental justice in Canada and the U.S. The delays in the system are taken for granted, notwithstanding the constitutional injunction that there be no unreasonable delays, because that’s just the way it is. The phenomenon reminds me a little of the modern health-care system. As new drugs and technologies advance, so does the cost of the system. As new forensic technologies advance, the criminal justice system requires more experts, more money, more preparation, more time. It’s a natural evolution.
Indeed, I consider myself an accomplice in this “evolution” in Ontario. The crux of the Organized Justice strategy, as embodied in the Ontario Guns and Gangs Operations Centre and its Task Force, leverages technology and intelligence-led analysis that is the frontier of policing strategies today.* It is fundamentally a response to global organized crime, itself a chilling marvel of technology and illegal commerce. Inevitably, the resources expended in the name of Organized Justice draw from resources that might be directed toward community policing, wherein the police integrate themselves within a community of people who all collaborate to address public safety.
How all this gets reflected in police budgets, priorities, planning, structure, and training is unclear to me, but it doesn’t bolster the savvy street work needed to manage substance abuse in our communities. There may be a growing elite of police officers trained in the science of their craft, in intelligence-led policing, and this is a positive development of professionalism.
However, professionalism in investigative tools is quite different from professionalism in the matter of laying criminal charges. There wasn’t any intelligence-led investigation before I was charged, within minutes of police showing up at the scene.
Yes, there is obvious value of CSI-esque efforts in tackling complicated criminal endeavours. But what of the constables on the beat, like the ones who watched Darcy Sheppard drive off on his bike, intoxicated at double the legal limit, to his death? And what of those who hastily charge people before an investigation has really started, let alone is complete?
The latter constables operate within a centuries-old police structure that sees police as local adjunct of the military, empowered to guard the innocent from danger, designed to defend against conflict, less than a profession designed for modern due process. Intelligence-led policing bolsters police professionalism, to be sure, but advanced empiricism needs to be matched by an advanced system of laying charges—not just for the expensive CSI-esque investigations, but the kind of street incidents like the tragedy of my 28 seconds.
That’s why prosecutors, not police, ought to lay criminal charges in Ontario, as is done in B.C. and Quebec. Or at least the more serious crimes, for the felonies. Let the decision be a collaboration between police and prosecutors, as works so well with the Ontario Guns and Gangs Task Forc
e. Let each branch of the criminal justice system be a check against the other, at this critical, too-often-overlooked, early stage—before the charges get laid.
WHEN HARM IS WROUGHT, there is a natural tendency to seek comfort, or at least explanation, in finding someone guilty of something. And no doubt some family and friends of Darcy Sheppard felt anger when Richard Peck dropped the charges against me.
Sheppard endured a hard life with no help from a justice system blind to his past trauma, addictions, and immutable afflictions. His life was lost.
That he would die at the hands of someone so identified with that justice system, and its shortcomings, no doubt seemed doubly unjust, probably to the point of cruelty, to his loved ones.
As Attorney General, I was the Ontario justice system’s biggest booster, if nothing else. I’d often close speeches at courthouses with the following remarks: “It was the boast of Augustus that he found Rome of brick, and left it of marble. It will be our boast in Ontario that we found a justice system of marble and left it of gold.”*
That I would find myself at the other end of the same said justice system—after what was, at best, a cursory investigation, a most ungilded moment—was inexplicable to me and my family.
In this story, there truly were no winners.
* “An estimated $40 million in defense costs for Black have been covered by the policy of directors and officers insurance for Hollinger International since 2003. The policy was terminated when the company went bankrupt, however, and now Black is on his own in litigation that may test the extent of his wealth, reports The Globe and Mail, relying on unidentified sourcing.” Martha Nell, “Conrad Black Released on Bond After Some $40M in Legal Bills; How Much More Can He Afford to Pay?,” ABA Journal, July 21, 2010.
* Tilley, Nick. (2003). Problem-Oriented Policing, Intelligence-Led Policing and the National Intelligence Model. Jill Dando Institute of Crime Science, University College London; The Frontline Perspective: Megan Haynes, “Criminal Intelligence Analysts: Celebrating 35 Years of Service.” 2009. Vol. 3, No.1.
* I was injudiciously borrowing from the Scottish jurist and politician Lord Henry Brougham (1778–1868): “It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be the sovereign’s boast when he shall have it to say that he found law … a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence.”
EIGHTEEN
Another Death: My Brother
To everything, the Book of Ecclesiastes, Pete Seeger, and the Byrds agree, there is a season. And if I had thought, as a result of that awful evening in August 2009, that I’d already lived my season of loss, I was wrong again.
In the early twilight of a Thursday in June 2011, I received a telephone call from my mother. She was hysterical. She said something about my younger brother, Alan, having had emergency open-heart surgery. I caught the next plane to Memphis, where Alan lived and worked.
Alan had been a terrific high-school basketball player in his youth in Victoria. His dream was to have a career in basketball management, and he achieved it. He started in 1998 with the National Basketball Association’s Vancouver Grizzlies at GM Place and he moved to Tennessee, along with the franchise, when it became the Memphis Grizzlies.
Big Al was living the life he loved.
He was a fiercely loyal and hilarious senior manager for the Grizzlies. His office, I was told, was always the central hub for team employees. During Grizzlies’ games, Alan ran all the music and sound effects at FedEx Forum in Memphis. He didn’t make a lot of money, but he saved well, and he owned property in our hometown of Victoria and on Qualicum Beach on Vancouver Island. Alan was also still Canadian to the core, and was utterly thrilled to manage the hockey venue for the 2010 Winter Olympics in Vancouver.
My plane touched down in Memphis on June 10, 2011, the morning after my mother called, and I was driven to the hospital by one of my brother’s bosses. When I arrived, I saw Alan’s huge body sprawled all over a hospital bed. He was on a respirator and it seemed there were tubes everywhere. On seeing him, I burst into tears.
His two Memphis “brothers,” Hark and Pugs, had been by his side since he arrived at the hospital. One of the men had actually saved Alan from dying alone in his apartment, breaking into his place at 3 a.m. and calling an ambulance. He had suffered an aortic dissection—a congenital heart condition, wherein the aorta basically falls apart. Fewer than half of patients with a ruptured aorta survive.
As I sat by Al’s side at the hospital, dozens of people came to visit him in the intensive-care unit. It’s hard to describe watching your brother’s life pass before your eyes over a weekend. But on a certain level, it was an inspiring experience. Alan was a generous friend and his deeds, which I learned of that weekend, consoled and inspired me. Sometimes people stitched together, right in front of us, something that Alan had done to help one or the other. Yet they said he wanted no credit. He just did it for the joy of helping others.
With each passing day, there was good news and bad. That Alan was still alive was the good. The bad news was that the heart medication was being increased at a necessary but alarming rate, as were the painkillers. This was damaging his internal organs, even as his heart seemed to grow weaker and weaker. At one point, doctors had to slice open his calves to allow for the grotesque swelling. It was too macabre for anyone who loved him to watch.
Even so, I enjoyed the visits of Alan’s friends and colleagues, some unknowingly saying their goodbyes. One co-worker arrived on my second night, a Saturday, just before 7 p.m., to watch the Vancouver Canucks’ playoff hockey game. She pointed the TV at the two of them, sat back in a chair parallel to Alan’s bed, held his giant hand, and chatted away to him, as if he were answering her sometimes. She was very pretty and I wondered if Alan had ever fallen for her, never saying anything, happy just to be a friend and in her company. I decided to leave the two of them alone, to watch the game in privacy. He’d have done the same for me, I thought.
But I always cleared out all the visitors at 10 p.m., to allow us to spend a couple of hours together. I’d talk to him, haltingly, at first. It felt like talking to myself, with an audience of ICU nurses and technicians and doctors streaming through every few minutes. Eventually, I spoke to him as if it were perfectly natural to speak to someone who was completely comatose. By midnight, I’d try to sleep in that impossible chair, waking every few hours to stare at the machines and at my brother.
Throughout my vigil, I spent a lot of time talking on the phone to my sister, Janine. She is four years my elder, and over the past few years we’d became as close again as we’d been as little kids. As a little boy, I’d worshipped her. Over time, we grew a little distant, primarily for reasons of geography. By 2006, she had two beautiful children, a wonderful husband, and a successful teaching career. She’d been named one of Canada’s Outstanding Principals, and I had emceed the award ceremony in Toronto at which she had been honoured. It was a highlight of our lives.
In Memphis, Janine became my sister like never before. I couldn’t have survived the experience without her. She cared for my parents at home in Victoria, but I was never alone in Memphis, with Janine ever present by telephone and by Skype. We had each other, as we were losing our sibling, and for that I will be forever grateful.
In Memphis, in that hospital, I remembered the day that Alan had arrived in my life, not long after he was born and then adopted by our family. I was six years old, but the memory remains vivid: walking in his room and seeing that red hair for the first time, driving home in the car with baby Al in Mom’s arms in the front seat, then bringing him into our new home on Longview Drive, in Gordon Head, Victoria, B.C.
It never occurred to me to ask why a child was arriving six years after the last (me). I just knew that Mom couldn’t have any more kids herself, after
I was born. My comprehension of the female anatomy was such that I assumed they broke the mould after my birth. Perhaps three kids was always the plan, perhaps it was a new plan. No matter: it was the most exciting thing that had happened to me, and I assumed that everyone must have an adopted sibling.
Alan kept scratching his eyes so we put mittens on his tiny hands. Until my own kids were born, that day was the best moment of my life.
On June 13, 2011, at 2 a.m., a neurologist I hadn’t yet met began shaking me. Alan was brain dead, he said. Zero brain-stem functions. As much as I’d appreciated all the medical care he’d received, I went into full denial. I demanded further tests to confirm that he couldn’t function without a breathing machine.
Later that morning, another neurologist began the tests for brain-stem function. Watching her punch his trachea, poke his eyes, twist his head, made it all quite real for me. I also noticed, quite suddenly, how peaceful he looked. No more gagging reflex from the breathing machine. He wasn’t there anymore.
My parents and my sister Janine all agreed that Alan would not want to be sustained artificially. Yet I still hesitated, asking for more tests, needing more time.
On the morning of June 14, a day after our father’s birthday, Alan passed away, his heart stopping in front of my eyes as I squeezed his hand. That hand was no longer tiny, the way it was that first day I held it when we brought him home. But it was the same hand, same brother. For 39 years, he had been a joy to our family. And for 39 years, those hands were generous, kind, gentle—and perfect for high-fiving. We’d done a lot of that, the two of us.
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