When this story broke I posted a piece that suggested that the Bryant affair has disclosed the unfortunate truth that there are two standards of justice afoot in this fine country. Well, it seems that every body has an opinion  on this story and many of my very articulate and very smart colleagues weighed in with their opinions – many disagreeing with me. The following is my response to their various arguments and is partially written from my perspective as a former Criminal Lawyer:

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Ok. Ok. The guy was clearly a maniac. Drunk and provocative. And what would I have done? I would have done whatever I had to in order to escape this idiot. All these points are well taken.

However – Bryant’s actions lead directly and causally to his death and in our country, with a very few exceptions, causing the death of another person has various degrees of criminal liability attached to it. It is exceedingly rare to see a situation where someone causes the death of another – intentionally or not – and does not have to answer for it in some forum. While Bryant clearly didn’t murder him there are many other lesser charges that apply when a death is caused without intent. Manslaughter, criminal negligence causing death, dangerous driving causing death, vehicular homicide, etc.

If I understand Bryant’s team correctly they assert that he was trying to defend himself in his efforts to get away from Sheppard and I guess what’s nagging at me is the notion that in 99% of cases like this the policy is to lay the charge and then to let the defendant use self-defence as the justification for the act. What happened here was that the prosecutor usurped the court’s role and made his own unilateral decision that this was, indeed, self-defence and then let Bryant off the hook.

We all know that Bryant wasn’t charged lightly or frivolously. When he was arrested, and after a 24 period where I imagine that phone lines were ablaze with the highest of the higher-ups being consulted, the police laid the charges and then turned it over to the courts for prosecution. They did the right thing as Bryant is causally and directly responsible for this man’s death. The fact that he was justified is exactly why they allow various justifications as legitimate defences. As defences. In court. At a trial. Since when does the Crown decide to allow a defence before a trial or in place of one? The Crown always retains the prerogative to withdraw a charge but it is all highly unusual.

I like Michael Bryant. I liked him as AG and I think he’s a good man. The problem is that the optics here are terrible. In my experience whenever I have defended someone who had a lock solid defence like he did and I tried to put that position to the crown I would be told that was why people had their day in court. Withdraw the charge? Extremely rare and usually only in cases where there is absolutely no reasonable prospect of a successful prosecution.

They say that perception is reality and for many the unfortunate perception here is that Bryant received favourable treatment due to his standing. People need to believe in our justice system and today that faith is little more battered than it was a few days ago. Remember that Bryant’s hands weren’t completely clean. He fled the scene to a hotel and only called the police after the fact. He left a bleeding Sheppard lying at the side of the road and did nothing to assist him.

Did those delays and evasions cost Sheppard his life? We’ll never know now. Why wasn’t he charged with Failing to Remain at the scene of an accident? We’ll never know that either but I do now that if I ever left the scene of a fatal accident and did nothing to help that I would be charged forthwith. No question. That’s how our system works – or is supposed to work. Allegations are made, charges are laid and defences are advanced. That’s the beauty of our adversarial process. Two sides meet, advance their theories and somewhere in the middle the truth will out. And for the most part, it works – when we allow it to.

The trouble here is that there appeared to be no adversaries. Bryant’s lawyers worked along with the Crown to turn over evidence and to shape the case before any trial could be held. That’s not adversarial and it’s a big part of why this result seems so skewed. The public has confidence when they see two sides pitted against each other but when everybody appears to be on the same side nepotic whispers abound and perception once again becomes reality.

This is one of those cases where everybody loses. We’d all like to think that we know how we’d react in extreme circumstances but until it happens to you, you really have no idea. Panic and fear can lead us to make some pretty stupid mistakes and I’m sure that if was me that I would have bolted out of there, too. I have no desire to see Bryant behind bars but I do have a desire to have a justice system that has integrity and is respected by the populace at large. We are all entitled to our day in court. It’s just that now it seems that some people are able to subvert that idea and I think that for that, we are all a little poorer today.

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Comments
  1. Caroline says:

    I agree. Why wasn’t he charged with fleeing the scene? It smells bad.

  2. Antonia says:

    Great post Marshall. I am spreading it around.

  3. Kris King says:

    Thanks Marshall, excellent post. When it first happened, the thing that got me right away was that he was not immediately charged with ‘failure to remain’.

    This is a ‘failure of justice’ for all involved.

    Will Bryant really be able to feel vindicated? Many people will see this as a miscarriage of justice; that he got off because of who he is
    and who he knows. While that may not be true,
    it won’t stop people from believing it is.

  4. I’ll add another question: Why do we know Sheppard’s blood alcohol count, but not Bryant’s?

    • bubster says:

      I really relish an answer to this question. Love the notion that Bryant sought private property of the hotel to escape a breathalyzer – but someone has responded to me that the notion is moot – private/public all the same – can someone legally clarify this for me?

  5. Great post Marshall. Thanks for articulating so well what most of us feel!

  6. Dave says:

    Here’s the thing, the security footage clearly shows Sheppard in front of Bryant, It clearly shows Bryant moving forward towards Sheppard.

    What happens at that point is a bit un-clear by the footage, but it does appear that the car hits the bicycle.

    While I am in full agreement that Mr. Sheppard did not act in the best possible manner, his poor behaviour does not remove the need for Mr Bryant to be culpable for his own actions.

    As to the failure to remain – Because Bryant left the immediate scene, but then immediately called the police – this is moot. He moved to an area of safety before calling the police. His position of self defense supports this and thus that charge wouldn’t stand.

    • Stevan Plavsa says:

      Bryant, who is very familiar with the law, moved his car onto private property. Some speculate that this was a move to avoid the breathalyzer.

      Regarding the footage of Bryant seemingly hitting Sheppard with his car on purpose, the defense is claiming that he stalled his car in panic .. started it again and that’s when it lurched forward. This is the defence which Richard Peck considered when making his recommendation to the crown.

      I think that the whole thing needs to be brought before a jury.

      • Heather says:

        I find Bryant’s claim that his car ‘stalled’ very hard to believe. Bryant hit Sheppard, Sheppard hit the hood of Bryant’s car and fell to the ground (see video footage). If Bryant ‘accidentally’ hit Sheppard, why did he then immediately try to flee the scene before Sheppard had even fully gotten up? Why not see if the person you just hit was okay? Instead, Bryant reversed then pulled away, which is when Sheppard tried to prevent him from fleeing the scene. Bryant then fled again while Sheppard was lying bleeding on the road. Bryant’s wife also failed to remain at the scene and was not present when police arrived. Bryant also immediately hired a very expensive PR company to help him spin the story.

        Also, Bryant’s car was not taken into evidence that night and examined forensically, nor was Bryant given a breathalyzer. Bryant knew this and knew how to come up with a plausible lie. Bryant’s story does not add up.

      • Rick says:

        Actually, there are two separate claims by the defense. Bryant claims that his car stalled, and lurched forward when he started it again. That was the first lurch, where he either came very close to Sheppard’s rear wheel, or made slight contact. He claims his car stalled again, and when he started it, it accelerated into Sheppard, traveling 30 feet before he braked to a stop.

        If he says his car stalled and lurched forward when it re-started, ok, maybe. That doesn’t exactly square away with eyewitness accounts that Bryant was shouting at Sheppard to “move it!”, but it’s at least plausible.

        What is not plausible is the second claim– that his car accidentally accelerated forward 30 feet. Absent some mechanical defect (no mechanical defect was claimed by the defense or by the Crown), cars don’t just “accelerate” forward on their own. The right foot has to be applied to the accelerator, and the clutch has to be let out and the gear engaged. Given the clear eyewitness descriptions of Bryant being “very, very angry” and in a state of road rage before he fled Sheppard, I don’t find his story plausible at all. He hit Sheppard because he meant to hit Sheppard. And then he tried to get away, only Sheppard wasn’t having it…

  7. Stevan Plavsa says:

    You have articulated my thoughts on this matter perfectly. Thank you for putting this into words and putting it out there.

  8. […] This post was mentioned on Twitter by Kerry Clare, Kerry Clare. Kerry Clare said: & excellent blog post (via @antoniazerbesias) that helped me understand outrage over M. Bryant charges being dropped http://bit.ly/c3DOvi […]

  9. Heather says:

    Thank you for writing this post. My thoughts exactly. What I can’t understand is how all charges got DISMISSED! Not even down graded. Bryant clearly broke the law on many fronts: rear ending the cyclist; fleeing immediately afterward (hit and run); failure to remain at the scene, etc etc.

    What is also astounding is how the executive summary by Peck reads like an elaborate rationalization for letting Bryant off with nothing, while engaging in near character assassination of Sheppard. True, the man was deeply flawed, but that does not justify his loss of life and does not exonerate Bryant for his part in this tragedy. The summary is so skewed in Bryant’s favour it’s hard to believe it was written by the prosecution. Justice was not served here and the utterly shocking actions on the part of Peck leave nothing but the impression that our judicial system cannot be trusted to serve the public good.

  10. Thanks for posting this. I did a blog on the incident back in September {on my name link}. I’ve been contemplating a follow-up, but I’m swamped and I want to a bit of digging before I make my arguments regarding what I feel is the crown’s faulty reasoning.

    I agree that this case seems to be lacking an adversarial position. Peck chose to focus on Sheppard’s prior conduct before the incident. While the issues of Sheppard’s blood alcohol and “increasingly aggressive” behaviour came out, I’m not clear by what yardstick Sheppard’s conduct was measured by that would warrant the use of deadly force. Relatedly, how is “aggressive conduct” defined in these circumstances, with respect to one being justified in engaging in “self-defense” tactics that use deadly force. Was Sheppard a credible threat or merely a nuisance?

    Bryant’s conduct seems to be getting a pass. The “reasonable” person standard for self-defense in using deadly force seems murky at best. Typically, such defenses also require that the actions taken with deadly force also be gauged in terms of were there any alternatives to the actions. So, Peck made the decision that Bryant’s actions of driving into oncoming traffic with a person attached to a vehicle for 50-100 metres going about 34 kph seems like a bold statement to me. The determination of whether or not Sheppard was a deadly threat that warranted deadly force isn’t all that clear to me. Drunk and The crown’s decision signals to drivers that if someone appears to be menacing and grabs on to your vehicle, the reasonable person standard in Ontario is that you have a little extra leeway in terms of using your vehicle as a deadly object or the standard of care with respect to using the roadways is relaxed. Somehow, I don’t think this is what the province of Ontario wants to convey, but that’s exactly what they did. Effectively, this shifts a bit of the responsibility of driving a vehicle, which can be a deadly object, as somewhat conditional upon the conduct of others.

    Thankfully, this incident didn’t cause more injuries or fatalities. Bryant’s panic caused him to go into oncoming traffic lanes, which could have gone south fast.

    • Stevan Plavsa says:

      Something else which bears consideration is that Bryant is a trained boxer, who stands what, six feet tall? I think the argument could be made that there were other options available.

      Like you, I am most concerned about the precedent that this sets.

      • eric says:

        Actually, Bryant is notoriously short – and has been described as having short-man complex. But his size is immaterial. When you’re sitting behind the wheel of an open-top convertible, which sits low to the ground, you are not in a position to start a boxing match with an angry man on a bicycle.

    • Heather Morgan says:

      I fully agree. If you look at the image of Bryant in the back of the police car, he appears to be completely uninjured, and as far as I know, he was completely uninjured. Sheppard, it can be argued, was trying to stop Bryant from fleeing the scene after Bryant hit Sheppard with his car. If Bryant’s story is true, that his car stalled, why not see if the man he ‘accidentally’ hit was injured? Instead Bryant tried to flee immediately after. Sheppard allegedly grabbed the steering wheel (if this is true we’ll never know), he did not aim a gun at Bryant, nor did Sheppard physically assault any of the motorists in the other alleged incidents. So where is the justification for using deadly force?

      What it looks like to me, watching the video, is that Bryant wanted Sheppard to move out of his way. When Sheppard refused, Bryant deliberately hit Sheppard with his car, then tried to flee the scene of what would have been a hit and run. But an enraged Sheppard tried to stop Bryant from fleeing. Both parties engaged in the escalation, only one had the use of a deadly weapon…Bryant, with his car.

      Does this mean it’s now open season on cyclists who ‘scare’ motorists who have behaved badly on the road?

  11. smartygirl says:

    very well said. guilty or not, it should be a jury’s decision.

    it would be interesting to see some statistics on charges withdrawn by the crown – how often does this happen? and what are the demographics on the lucky defendants?

  12. geographic tongue says:

    I believe the Crown chooses to drop a case when they know they can’t win it.

  13. Serge says:

    Thank you for the great article.
    Al was my friend and coworker.
    The attempts by the media to demonize him to try and justify byrant’s actions and to curry sympathy is disgusting.
    I’ve read quite a few articles and the comments that followed. Some people clearly have no souls. One person actually said that all bike messengers are sociopathic and angry and that Al was a meth addict. Nothing could be further from the truth.
    It definatly made me feel sociopathic and angry when I heard that the charges were dropped.
    Some of my friends have seen Bryant around the financial core. I wonder what I would do if I saw him.
    Friends of

  14. Edward says:

    I have to thank you for this article! And the comments from the readers are similarly great. I’ve been following this, and the coverage from the press is just appalling. The details of the dinner, the wedding anniversary, how nice the night was, and the character assasination of Bryant is just awful. I am very glad that someone with your background can point out what seems apparent. Cycling people over here are watching!
    Ted from Australia

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