Posts Tagged ‘murder’

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:


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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