Appeal Brief to The Information and Privacy Commissioner of Ontario

Appeal Brief

to

The Information and Privacy Commissioner of Ontario

regarding

Notice of Inquiry

Ministry of Attorney General

Appeal PA13-37

Submitted by

Allan Sheppard

23 October 2013

I

In a recent book, The Idea of Justice, Nobel laureate Amartya Sen writes,

Lord Mansfield, the powerful English judge in the eighteenth century, famously advised a newly appointed colonial governor: ‘consider what you think justice requires and decide accordingly. But never give your reasons; for your judgment will probably be right, but your reasons will certainly be wrong.’ (Sen, 4) [Emphasis added.]

Richard Peck might have been wise to have followed that advice as special prosecutor against Michael James Bryant. Mr. Bryant had been charged with criminal negligence causing death and dangerous operation of a vehicle causing death following the death of my son, cyclist Darcy Allan Sheppard, during an encounter on a Toronto street on 31 August 2009.

The fact that Mr. Peck is based in Vancouver was cited as evidence of his presumed independence. Because Ontario-based Crown prosecutors might have conflicts of interest, having been appointed by or reported to Mr. Bryant when he was Ontario’s Attorney General (2003-2007), optics required at least the appearance of independence.

Mr. Peck chose Mark Sandler to serve as his agent and prosecution manager in Toronto. Mr. Sandler had served him in the same capacity on previous occasions. An experienced and successful defence lawyer, Mr. Sandler would have done much of the investigative legwork and legal analysis, with Mr. Peck monitoring, supervising and deciding from Vancouver and on visits to Toronto.

Mr. Peck decided to the drop charges against Mr. Bryant. In explaining his decision to the Honourable Mr. Justice P. Bentley (and members of the media and the public also in attendance) at 25 March 2010 proceedings, Mr. Peck said that, in his opinion, there was no reasonable prospect of a conviction, given the facts and presumably the need to show guilt beyond a reasonable doubt. He noted that provincial guidelines require prosecutors to drop charges, if a conviction is unlikely.

Up to that point, Mr. Peck acted according to his mandate, to standard practice, and to precedent; he announced his decision and gave a pro forma explanation that reflected his judgment and his guidelines. He could have—and should have—stopped there, as countless prosecutors have in the past and undoubtedly will in the future.

But Mr. Peck chose to go further. He explained the reasons for his decision—in detail. Many of his reasons were (and still are) wrong—as Lord Mansfield predicted such reasons would be. Mr. Peck’s explanation is rife with obfuscation, inconsistencies, misstatements and misdirection; Mr. Peck probably wanted to demonstrate (or give appearance of) transparency and accountability, but he achieved the opposite result.

Dropping charges might have been justifiable in law, but Mr, Pecks explanation was not justifiable in justice. Neither in principle and logic nor on the complete facts of the case does conceding the Crown’s inability to get a conviction amount to exoneration. Yet Mr. Peck and Mr. Sandler, in strange (and strained) generosity, gave that gift to Mr. Bryant, explaining in detail why they dropped charges but not satisfactorily why exoneration was appropriate.

This appeal to the Information and Privacy Commissioner of Ontario seeks access in the public interest to Crown files that are the only potential source of answers to questions raised by Mr. Peck’s extensive, but flawed, decision to exonerate.

II

In recalling the advice of Lord Mansfield Prof. Sen does not argue against giving reasons for official decisions; his book is an extended argument for full disclosure in the public interest and in the interest of justice. He precedes his example from Lord Mansfield with this:

The avoidance of reasoned justification often comes not from indignant protesters but from placid guardians of order and justice. Reticence has appealed throughout history to those with a governing role, endowed with public authority, who are unsure of their grounds for action, or unwilling to scrutinize the basis of their policies.(Sen, 4) [Emphasis added.]

And he follows it with this:

(Lord Mansfield’s pragmatic advice) may be good advice for tactful governance, but it is surely no way of guaranteeing that the right things are done. Nor does it help to ensure that the people affected can see that justice is being done (which is part of the discipline of making sustainable decisions regarding justice.)” (Sen, 4, 5) [Emphasis added.]

In theory, it is hard to argue with Prof. Sen’s reasonable argument.

But in practice, Mr. Peck and Mr. Sandler demonstrate that seemingly reasoned justification can be as unreasonable and unjust as no explanation at all. In the hands of experts in the dark arts of “spin doctoring,” “reason” and “justification” can be manipulated.

Much has been made of the role possibly played by the public relations firm Navigator Ltd. in Mr. Bryant’s defence. What seems to have been overlooked, so far, is that many successful politicians (such as Mr. Bryant) and criminal lawyers (such as Mr. Peck, Mr. Sandler, and Mr. Bryant’s counsel, Marie Henein) often have public relations skills as good as or better than experts such as Navigator.

We should not be surprised that the defence’s theory of the case relies as much on spin as fact. Nor should we be surprised that the defence adduces evidence selectively and spins it persuasively. That’s what defences do—and arguably should do—in our adversarial system.

We should be surprised, though, when Mr. Peck and Mr. Sandler, as prosecutors, abandon without explanation the adversarial relationship and buy into the defence’s theory, spinning and selling it to the media and the public with great skill and determination. Excellent communicators that they are, they offer a justification for dropping charges that is superficially persuasive, but that overlooks, minimizes, or arbitrarily dismisses contrary evidence. That may not undermine their decision regarding charges, but it challenges their exoneration of Mr. Bryant

There may have been no prospect of convicting Mr. Bryant, given my son’s history. But there is ample evidence—and reasonable justification—to consider and arguably to conclude that both Mr. Bryant and my son were aggressors in the encounter and that Mr. Bryant should have been held proportionally responsible and accountable.

I believe the Crown files hold material that can confirm my belief; the files may refute me, but if so that material should be produced, in the public interest. Otherwise we are not dealing with the rule of law, but with the rule and rulings of men: to wit, Mr. Peck and Mr. Sandler. We are left to take their word on faith and trust. With respect, I cannot.

III

There is no point, and certainly no value, in giving a detailed, apparently reasoned, justification for dropping serious criminal charges without allowing for—in fact inviting—public discussion, analysis, and evaluation of the decision. Without public discussion, the decision and the announcement become edicts, every bit as opaque and arbitrary as a perfunctory pro forma statement that explains nothing.

As quoted above, Prof. Sen suggests it is officials “endowed with public authority, who are unsure of their grounds for action, or unwilling to scrutinize the basis of their policies” who routinely avoid explaining their decisions (as they should, according to Lord Mansfield). But surely when freedom of information rules preclude examination of grounds and scrutiny of policies by preventing access to necessary information, transparent, accountable examination and scrutiny are impossible and the offering of formal explanations is cynical—no less so when the decisions are arguably right than when they are not.

Just as there can be no point in giving explanations of decisions without public discussion, there can be no point in seeming to invite public discussion without the full, unvarnished facts.

Giving access to the facts might inevitably raise questions of privilege, confidentiality, and privacy that governments do not want to handle and perhaps cannot risk even trying. That, I suspect, is the reason prosecutors habitually choose not to give explanations when dropping charges: balancing legitimate demands for access to information with arguably legitimate demands for privacy (of individuals involved in the matter and, certainly, the government and its agencies) is difficult enough without increasing, potentially by orders of magnitude, demand for information by giving explanations. But once an explanation is given, the genie is out of the bottle; full disclosure becomes an ethical, as well as a judicial, issue.

(To reiterate, my concern is not the decision to drop charges; it is the decision to explain that decision in such a way as to exonerate, knowing that rules preclude access to information necessary to discuss, analyse, and evaluate both decisions rationally.)

Months after 25 March 2010, I called Mr. Sandler to thank him for helping me get a full transcript of the proceedings. I had been shocked at how unabashedly shallow Mr. Peck’s statement and reasoning turned out to be, in contrast to my recollection and understanding of what had been said before Judge Bentley. Given an opportunity by Mr. Sandler to comment on the document, I said, as I recall, “I am willing to accept, reluctantly, that there may be reasonable doubt about Mr. Bryant’s guilt under law, but I cannot accept Mr. Peck’s allegation that my son was solely responsible for what happened.”

That was not, Mr. Sandler insisted, Mr. Peck’s or his intent. I suggested he reread the document. The word “exoneration” was not used, but media and the public easily reached that conclusion. [See Note 1]

Mr. Peck openly advocates on Mr. Bryant’s behalf, not just for reasonable doubt of guilt, but for Mr. Bryant’s complete innocence—and for my son’s absolute guilt of a crime for which he was never charged and against which he could not defend himself. “The evidence establishes,” Mr. Peck said, “that Mr. Sheppard was the aggressor.” (Proceedings, 51)

There is plenty of contrary evidence in the information I have been able to access. I believe there is more of the same in the material that is withheld. I should have access to that in the public interest, given that Mr. Peck exceeded his brief—in justice, if not in law—in exonerating Mr. Bryant.

IV

Mr. Peck introduced his unprecedented explanation thus:

Given the widespread public interest in this matter, I wish to set out in some detail the applicable law and key features of the evidence which, together, inform my decision.” (Proceedings, 4)

Beyond citing “widespread public interest,” Mr. Peck does not say why an explanation is useful or necessary. He does not, for instance, cite precedent, legal or regulatory necessity, or the demands of objective justice. He frames the matter as a public relations concern.

This contrasts with the way Mr. Peck responded, in a media scrum following court proceedings, to a reporter’s suggestion that a trial might have been in the public interest (given Mr. Bryant’s profile and, by inference, the widespread public interest in the matter). Geordie Gwalgen Dent of the Toronto Media Co-op reported Peck’s response on line (toronto.mediacoop.ca/story/3670):

“‘It doesn’t work that way,’ said Peck in response to claims that he should have proceeded with charges in the public interest of accountability. ‘The responsibility on Crown Council (sic) is to review the case and see if it meets the threshold for prosecution. The public interest cannot trump the fact that (the) case does not meet the threshold for prosecution…it’s in the Crown Council (sic) policy manual. If you don’t have a provable case, you can’t proceed.’”

Enzo Di Matteo observed in Now Magazine, again on line

“…whether pursuing the charges against Bryant would have been in the public interest, is something the Crown will not be delving into to explain the dropping of charges in this case.

That’s probably because that argument would be harder for the Crown to make.

Clearly, it is in the public interest, given what we know about the nature of the incident and the fact Bryant is a high profile person of some influence, for justice not only to be done, but to be seen to be done. And that would mean a trial for Bryant before a jury of his peers to let the chips fall where they may. (nowtoronto.com/daily/story.cfm?content=175131)

I can see only one interpretation of Mr. Peck’s statements inside the court and outside that is consistent with what he says and where and how he says it: it is in the public interest to explain his decision in circumstances where he makes the rules; where his evidence, interpretations, and conclusions are not subject to any kind of scrutiny or accountability; and where he can assume that his source evidence, advice and deliberations will not be accessible under freedom of information. But it is not in the public interest to have those factors presented in open court, where they can be tested and tried according to clear rules and procedures, under the watchful eye of an impartial judge, before a jury, informed media, and the public.

Cost factors for the Crown and the defendant are obvious considerations in guidelines that rule out trials in unprovable cases. But that does not seem to have been Mr. Peck’s rationale in this case; he focuses on optics, within a narrow view of the public interest.

 

V

It is easy to invoke (the) public interest in support of an official position or decision but often hard to define or understand what is meant or intended by the concept. In his explanation—“Given the widespread public interest in this matter”Mr. Peck seems to point to general public attention, curiosity, awareness, or concern about a matter; in his response to a reporter outside the courtroom, he seems to consider, as the enquiring reporter does, the interest of the public as stakeholders in the importance, significance, relevance, or benefits of an outcome.

The first usage is populist or sensationalist; concerned more with communications goals and effectiveness than substance. The second is more substantial; it recognizes stakes and outcomes more than appearances and expectations. In an ideal world, the second usage would have more weight and get more respect than the first. But Mr. Peck reverses those priorities.

Why?

Only Mr. Peck and Mr. Sandler can answer that question; I cannot. But I can point to some factors that attracted public interest, in the first sense, and made it easy (or desirable) to dismiss the public interest in the second:

  • Mr. Bryant was a high-profile member of Toronto’s elite political, legal, and social establishments, having served prominently in the provincial government and having sufficient charisma and popularity to be touted as a potential candidate for mayor or leader of the Ontario Liberal party; his private interest, as he admits in a memoir, depended on having charges dropped without going to trial.
  • Darcy Allan Sheppard was a bicycle messenger at a time when some municipal politicians and media commenters openly fomented opposition to and contempt for cyclists and messengers.
  • Darcy Allan Sheppard was an alcoholic who had a troubled past that included use of drugs and sometimes violent encounters with the law and others.
  • Though no longer in office, Mr. Bryant had a prominent public position and influence, with many, followers, supporters and apologists among voters and, crucially, the media.
  • Had a trial taken place, it could have dragged on long enough to have a negative effect on the prospects of the Ontario Liberals in the next election.
  • Inevitably, public opinion and, no doubt, the provincial government wanted a quick, clean disposal of the case—preferably in Mr. Bryant’s favour.

It would be naive to suppose that, under such circumstances, Mr. Peck did not accept his appointment with an understanding that the government that appointed him wanted charges dropped. Such an unspoken expectation would not have implied breaking the law, but one can imagine that anything short of that would have been tolerated—and hoped for. Optically, only an independent prosecutor could attempt that; Ontario Crown staff could not.

The best interpretation of the announced need to avoid potential conflicts of interest within the Crown staff pool is not that staff Crowns might have invited criticism by favouring Mr. Bryant in their decisions. If we assume, as I do, the basic integrity of Crown staff, we can conclude that any one of them would have laboured diligently to avoid seeming biased toward Mr. Bryant. Instead, we find ourselves faced with optically independent prosecutors who leaned openly toward Mr. Bryant; in Ms. Henein’s somewhat disingenuous words, Mr. Peck and Mr. Sandler “were the model of prosecutorial fairness and objectivity” in their handling of the case. (Proceedings, 54)

VI

With sincere respect to Ms. Henein, her view of the outcome is narrow and one-sided. Mr. Peck and Mr. Sandler were not models of “prosecutorial fairness” in their handling of this case. Neither were they models of “objectivity,” understood as impartiality, detachment or neutrality nor of independence, understood as disinterest. They were arguably subjective and biased in ways that would have seemed fair to Ms. Henein, who had her own (understandable and acceptable) bias, but not to me, given my (I hope understandable and acceptable) bias.

There is a term for Mr. Peck and Mr. Sandler’s explanation to Judge Bentley: special pleading.

Special pleading (also known as stacking the deck, ignoring the counterevidence, slanting, and one-sided assessment) is a form of spurious argument where a position in a dispute introduces favourable details or excludes unfavourable details by alleging a need to apply additional considerations without proper criticism of these considerations. Essentially, this involves someone attempting to cite something as an exception to a generally accepted rule, principle, etc. without justifying the exception. (en.wikipedia.org/wiki/Special_pleading) [Emphasis added.]

In giving an extended explanation of “the applicable law and key features of the evidence,” Mr. Peck departed so far from the role we expect of a special prosecutor as to become, in effect, a special pleader, a now obsolete expert in “the many rules, technicalities and difficulties in drafting pleadings and claims and defences” who specialized in framing arguments that would not be dismissed at court (in this case, I suggest0 the court of public opinion) for trivial errors. (en.wikipedia.org/wiki/Special_pleader)

By choosing to drop charges, Mr. Peck and Mr. Sandler ensured that they would not risk having their explanation dismissed at trial. Having achieved that goal on a technicality (which is not to say they were wrong, only that they managed thereby to avoid the rigorous scrutiny of a trial), they then needed only to frame a statement that would pass muster in the court of public opinion.

On 24 March 2010, a day before formal proceedings before Judge Bentley, Mr. Peck and Mr. Sandler invited me to a private meeting staged to persuade me to buy into their special plea. They succeeded; their carefully selected, controlled, and manipulated presentation won me over, just as it persuaded the media next day, in Judge Bentley’s courtroom.

But now, after digesting the full transcript of Mr. Peck’s expertly framed statement, after steeling myself to look at security videos of the incident on line; after talking to officers who worked the case; after reading a collision reconstruction report from the Toronto Police Service; after talking to a witness who observed critical parts of the encounter almost literally at arm’s length; and after watching her and her husband’s video statements given the day after the encounter, I have no doubt Mr. Peck’s explanation and his and Mr. Sandler’s public comments precisely, deliberately, and relentlessly meet the definition of special pleading given above.

Let me reiterate: I do not raise these concerns and questions in hopes of overturning a decision to drop charges. I have always accepted that Mr. Bryant would claim self-defence and that my son’s history would justify a reasonable doubt sufficient to make a conviction unlikely.

But I cannot accept an outcome that was settled secretly, by extraordinary and unaccountable agreement between prosecution and defence. That result cannot stand, either on its own or, more importantly, as a precedent that validates special pleading by the Crown on behalf of the defence, against contrary evidence and in defiance of the adversarial basis of our justice system.

VII

Special pleading is not a sin. Nor is it a crime. It seems to me a natural, even necessary, way to present or advocate a position in a discussion, a debate, or a trial: especially in a trial. The higher the stakes, the greater the temptation for prosecutors and defendants to focus on positive aspects of a position and try to divert attention from or otherwise minimize negative aspects; the adversarial nature of our justice system seems intended to neutralize such natural tendencies: prosecutors and advocates for the defence present, debate and challenge, in an adversarial framework, inherently biased pleas under the watchful eye of a neutral, objective judge and (usually) before a jury of open-minded peers. The ritual takes place before an audience of media and others who have a range of interests, concerns, and biases, including a desire to see justice done.

There are many shortcomings in that process, cost being of particular concern. But it is the system we have and it generally works. There may be better ways of settling criminal cases, but I am willing to accept, in the sprit of Winston Churchill’s evaluation of democracy, that the adversarial system may be the worst possible form of justice “except all those other forms that have been tried from time to time.” (http://www.quotationspage.com/quote/24926.html)

I believe the intent—and effect—of Mr. Peck’s explanation was to whitewash Mr. Bryant’s role in the encounter. The evidence shows my son was significantly responsible for what happened, but it also shows he was not solely responsible, as Mr. Peck insists in his explanation and as he and Mr. Sandler have reiterated since; Mr. Bryant was also significantly responsible, and he should have been held accountable. Accountability might have fallen short of guilt beyond a reasonable doubt; but on the evidence in hand (and, I believe, in the Crown files to which I seek access) it does not extend all the way to exoneration.

The collision reconstruction report concluded, “Mr. BRYANT and Mr. SHEPPARD shared responsibility in the death of Mr. SHEPPARD.” (Vance, 54) That conclusion was reached by a qualified, objective expert. It is not gospel truth and would have been subject to rigorous examination at trial, as it should have been; and it can be examined and critiqued by me, the media, and others through freedom-of-information access. As an example in contrast, expert analysis of the security videos by a Vancouver-based expert identified by the defence is accepted by Mr. Peck and Mr. Sandler as definitive, yet it would and should have been rigorously examined at trial—and has so far not been available to me or anyone else through freedom of information access.

The whitewashing of Mr. Bryant’s role in the incident is so blatant, so one-sided, so complete that it borders on formal apotheosis. The only difference is that an ecclesiastical court requires a devil’s advocate to make formal, contrary arguments against canonization. I see no evidence that anyone advocated for my son in the rush to demonize him and exonerate Mr. Bryant. Mr. Peck explicitly denies intent to demonize in his explanation but that is surely disingenuous: one cannot successful argue a Scopelliti defence without the risk of arguing that the victim was so far beyond the pale of normal social behaviour as to justify his death—in plain words, to demonize him, and in effect to award a retroactive licence to kill to an accused.

Beyond being unjust (given contradictory evidence) that conclusion is unnecessary. The evidence, I accept, was sufficient to gain a “not guilty” verdict. Demonization, and the Scopelliti defence dependent on it, served instead to justify undeserved exoneration.

VIII

That hard cases make bad law was once an article of conventional lawyerly wisdom, but it has become more of a cliché than a rule of thumb. It still has value as a cautionary warning, even if it lacks the predictive force of a true axiom. While it is clearly not true that hard cases will necessarily make bad law, but it is hard to discount the notion that they can do so. Specifically, they can stand as precedents in cases where the issues and circumstances are superficially or circumstantially similar at best and totally inappropriate at worst.

Regina v Scopelliti (Ontario Court of Appeal) is an example of such a hard case.

In January 1979 variety-store co-owner Antonio Scopelliti shot and killed two unarmed teenagers using an unregistered pistol. There were no witnesses and no security camera footage; Mr. Scopelliti was both the accused and the only surviving witness. There was no objective way to confirm or deny Mr. Scopelliti’s claim that the victims had threatened him with robbery and death—or so he believed. Until that trial, it was normal for courts to exclude evidence of prior acts by an accused on trial and any victims. Mr. Scopelliti’s lawyer faced a situation where his client could stand or fall solely on his own testimony and credibility under cross-examination. The lawyer argued successfully that his client should be able to show evidence, which the defence had in hand, that the victims had a history of violent behaviour and could therefore be considered likely to repeat that behaviour, lending credibility to his client’s defence. Apparently in appreciation of the defence’s dilemma, the original trial judge and the appeal court allowed evidence of prior acts to be adduced by the defence. Access to details of the original trial is difficult, but I believe we can reasonably assume that the Crown would have tried (and ultimately failed) to adduce evidence of Mr. Scopelliti’s propensity for violence.

In the event, Mr. Scopelliti was acquitted, and his lawyer, Eddie Greenspan, later opined that his client’s obviously passive, unaggressive mien and reputation underscored his credibility and persuaded a jury to accept his version of the incident. Mr. Greenspan went on to say in a book about his career that the defence would not be easily exploitable: “Only the gentlest, most peaceful defendant could ever avail himself of this strategy, because the minute (counsel) led evidence about his victim’s predisposition for violence it would be open for the Crown to lead evidence about violence in his, the defendant’s past.” (Wells, 49, quoting from Jonas, George, The Case for the Defence)

Reasonable as that judgment may seem, it has not held true. The so-called Scopelliti defence has been attempted several times since it was validated by the Ontario Court of Appeal in 1982. And why not? It is clearly attractive as a “Hail Mary” strategy, when nothing else seems likely to succeed.

A Hail Mary strategy with enhancements must have seemed desperately attractive to Mr. Bryant and Ms. Henein, as they began his defence. My son’s history of actual and alleged (but unproven in court, under oath and cross-examination) violence would have seemed a godsend, a natural way to deflect serious allegations that were supported by significant evidence. But there was an obvious, unavoidable problem: unlike Mr. Scopelliti, Mr. Bryant was not the “gentlest, most peaceful defendant” assumed by Mr. Greenspan to be the only viable candidate for a Scopelliti defence. There were and still are stories and rumours about Mr. Bryant’s abrasive, combative nature; it sometimes revealed itself as cockiness or supreme self-confidence, but his Wikipedia entry confirms Mr. Bryant was “(k)nown for his ‘pugnacious streak.’” (en.wikipedia.org/wiki/Michael_Bryant_(politician))

If Ms. Henein and Mr. Bryant went to court with a Scopelliti defence, they would (as Mr. Greenspan suggests) have had to face a genuine prosecutor’s efforts to show Mr. Bryant’s own propensity and probability for violence. Even if Mr. Bryant and his wife did not take the stand (as they would not have had to) a serious prosecutor could still have adduced evidence to show Mr. Bryant’s true character, thus undermining a Scopelliti defence at least enough to demonstrate shared responsibility as stated in the conclusions of the collision reconstruction report. Shared responsibility could still have gained Mr. Bryant an acquittal on the grounds of reasonable doubt, but it would have scuttled any chance for exoneration. True to his “pugnacious streak,” Mr. Bryant set his and his lawyer’s sights on exoneration, which could only be achieved by ensuring that the case did not go to trial, or even to a preliminary hearing, where a judge would consider the evidence and rule on whether it was sufficient to proceed to a trial.

Enter Mr. Sandler, who seems to have bought the defence’s Scopelliti theory as Hail Mary strategy and to have been persuaded that the case should not proceed, presumably because it was so unwinnable as to be a waste of everyone’s time and resources. Mr. Sandler then persuaded Mr. Peck to have Ms. Henein argue her Hail Mary strategy in person, according to Mr. Bryant in his book (Bryant, 210).

And so the die was cast. Mr. Peck would accept a Scopelliti defence without Mr. Bryant’s having to face examination in court of his own violent propensities. He would not have to face the testimony of witnesses on the scene that my son was not behaving “loudly and aggressively” as Mr. Peck asserts in his explanation (Proceedings, 35) and that Mr. Bryant appeared, in their judgement, to deliberately run my son down and callously leave the scene without regard for my son’s safety, while clinging to Mr. Bryant’s car.

A Scopelliti defence must also answer questions about whether Mr. Bryant had something to react to, whether he feared he was in danger (subjective; there is no way of knowing what goes on in a person’s mind), whether that apprehension of fear was reasonable (objective according to the legal definition; hence Scopelliti), whether Mr. Bryant’s response was proportional to the cause, and whether he instigated the event. Mr. Peck and Mr. Sandler may have decided they had satisfactory answers to all the appropriate questions; their explanation certainly tried to touch all those bases, but they had to ignore, reject, or minimize contrary evidence and testimony to do so. [See Note 2]

We are left, at the end of their explanation, with a suggestion from the Crown that evidence adduced by the defence was “objective and credible,” (Peck, Richard & Sandler, Mark, 2) which is to say consistent, verified, and true while all (or effectively all) the evidence that might have been adduced by the Crown was neither objective not credible because, among other flaws, it was inconsistent and contradictory, not only internally but (more importantly, it seems) with the defence’s theory of the case. And therein lies the worm that gnaws away at this case: Mr. Peck and Mr. Sandler accept and assert only evidence and witnesses that support Mr. Bryant’s story and his lawyer’s version of the case; they reject everything (or almost everything) that does not conform to Mr. Bryant’s version of what happened, given without ever having had to testify under oath or cross-examination.

There are many unusual or unprecedented aspects of this case, including Mr. Peck’s and Mr. Sandler’s decision not to go to a preliminary hearing, their decision to give a long and detailed explanation of why they dropped the case, and their cherry-picking and choosing among evidence and testimony to arrive at a result that amounts to special pleading for the defence. But the most egregious departure of all from normal practice and established precedent was to interview Mr. Bryant and his wife without prejudice, which is to say: not under oath, without cross-examination, with their lawyers present to filter questions, with a clear understanding that anything they said was absolutely confidential and could not be used in court, should the case go to trial.

I have said in the past that the Scopelliti defence, used without the checks, balances, and disciplines that operate in a courtroom (as was the case here) is a retroactive licence to kill. It is no less arguable that questioning Mr. Bryant and his wife, without prejudice, was a de facto licence to lie. That does not mean I believe Mr. Bryant or Ms. Abramovitch lied in their interviews with Mr. Sandler that informed his and Mr. Peck’s decisions; it means only that I see no reason to believe they told the truth or to accept anything, let alone everything, they said at face value. Yet that is what Mr. Peck and Mr. Sandler did and continue to do.

Most egregious and indefensible of all is the fact that Mr. Peck and Mr. Sandler chose, through their explanation of the decision to drop charges, to put Mr. Bryant’s unverified and absolutely unverifiable version of events on the public record with the full weight of the court’s authority and their personal prestige and credibility behind it.

One effect of that decision was to give Mr. Bryant permission to use any of that material he wished for a book telling his side of the story; another effect was to give him means to deflect questions from Toronto Star reporter Jennifer Wells by directing her to the transcript. (Wells, 15, 18)

Another effect was to give Mr. Bryant what Mr. Peck and Mr. Sandler might call a fair chance (and I would call an unreasonable chance) at picking up at least some of the pieces of his political career.

IX

The respected long-sitting associate justice of the United States Supreme Court, Oliver Wendell Holmes, had another view on the idea of cases making bad law. In a 1904 dissenting opinion, he wrote:

Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. (law.cornell.edu/supct/html/historics/USSC_CR_0193_0197_ZD1.html)

While the predictive nature of that insight may, again, be debatable, the cautionary nature seems apt to this case. Without going into reasons why it might be the so (I do not have the wisdom or means to go there), it seems clear to me that Mr. Peck and Mr. Bryant fell into the trap that Justice Holmes saw within cases “of immediate overwhelming interest.”

The case against Mr. Bryant was certainly that, due to Mr. Bryant’s public profile and the spectacular nature of the encounter that led to my son’s death. Mr. Peck and Mr. Bryant were clearly, it seems to me, victims of distorted judgement arguably due to positive feelings toward Mr. Bryant, negative feelings toward my son, or both. How else can we understand and explain why they went so far beyond what would be expected?

In the normal course we would expect one of two options: the special prosecutor would drop charges with a brief explanation or take the case forward to a preliminary hearing where a judge would decide on the merits of the prosecution’s. That is how things are invariably done, I believe, in Canada outside Quebec and everywhere else under common law. Either would have been acceptable and justifiable in this case.

But Mr. Peck and Mr. Sandler chose a third option: they dropped charges and give an extensive explanation of their decision. Their explanation was built almost completely on a framework provided by without-prejudice testimony from Mr. Bryant and, to an unknown and unknowable extent, from his wife, Susan Abramovitch. These choices seem to me inexplicable and unjustifiable. By itself, either one is virtually unheard of; together, they arguably constitute an outcome that has never happened before—and, I insist, must never happen again.

That is the crux of the case I want to make and the reason why I seek access to the Crown files (short of anything that falls appropriately within the privileged relationship between defendant and counsel) in the public interest.

When I share my objective with lawyers who are friendly to my concerns, they universally tell me that the cause is just but that my goal is quixotic: I will be swimming upstream as one of them expressed it. Mr. Peck and Mr. Sandler have so much personal prestige in their profession and the justice establishment, and their credibility and clout are so high, that I will not be taken seriously. They are, in effect, “bullet-proof.”

If that is true, then I can allow myself no choice but to go forward with my challenge—because to accept that reality is to accept the notion that there are cases where the rule of men can and should trump the rule of the law. The true test of justice is not how it respects and defers to its exemplars; it is not just how it respects and defers to an accused (as it must); it is also about how it respects and is accountable to victims, even those who by class or circumstance seem to exist far below the exemplars and a select few of the accused.

Philosopher John Rawls wrote, “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.” (Review of Rawls, John, A Theory of Justice, at epl.bibliocommons.com/item/show/1001566005_ a_theory_of_justice) I believe that insight to be true, and I believe that it applies, and must apply, to victims as much as to defendants: especially to victims who do not have a place in our justice system and, perhaps, especially to ambiguous victims who die in ambiguous circumstances, with no one to advocate for them.

X

In an exchange with Toronto Star writer Jennifer Wells, Special Prosecutor Peck’s Toronto agent, Mark Sandler, said this about charges against Michael Bryant:

There isn’t a chance in hell that a trier of fact, whether a jury or judge alone, could look at this and conclude that Mr. Bryant was the aggressor in the interplay between the two of them regardless of the precise detail of the vehicle’s touching and precisely what actions were taken at precisely what time.” (Wells, 51)

I can find no more concise and precise statement (or misstatement) of the issues at stake in this case. And I can think of no more unacceptable way to deflect legitimate questions about the case and from Mr. Sandler’s and Mr. Peck’s explanations of it.

Mr. Sandler speaks as though he can (and we should) be absolutely certain about what happened in the “interplay” between Mr. Bryant and my son; yet Mr. Peck’s and Mr.Sandler’s explanation and interpretation of that interplay come overwhelmingly from uncorroborated, unverified, and unverifiable without-prejudice interviews with Mr. Bryant and his wife, and unverifiable exculpatory-witness statements, .

In his explanation, Mr. Peck, describes a crucial part of the interplay this way:

As Mr. Sheppard latched onto the vehicle, the Saab was heading in a westerly direction. Almost immediately it veered to its left, heading on an angle to the southwest, and then west in the eastbound lane… We don’t know why that happened. There are any number of suppositions that one could drawa struggle.” [Proceedings, 39-40]

But that is not the only possible supposition or explanation. Given that the collision reconstruction report and several witness statements say my son did not grab the wheel and there was no struggle (my son was too desperately preoccupied, according to some of them, simply trying to keep from falling off the speeding car), witness Victoria Switzman gives a credible alternative explanation of what happened and why.

Ms. Switzman was closer to the incident, as it unfolded in its early stages at the crosswalk, than anyone else. In a May 2013 conversation, she told me she was standing by the front passenger-side fender of the Saab and could have reached out and touched it.

Ms. Switzman says Mr. Bryant had turned left to cross to the wrong side Bloor Street before my son approached the car, in fact while he still lay on the street beside the car, on the driver’s side. He had fallen, after being been rammed forcefully by Mr. Bryant, first onto the hood of the Saab and then onto the street beside the car. According to Ms. Switzman, Mr. Bryant did not head in a westerly direction, because he could not: my son’s bicycle had ended up beneath the front bumper after Mr. Bryant ran him down; Mr. Bryant had to back up to free his car from the obstruction, and he was then forced to turn left and cross the street, in order to avoid being hung up on the bicycle again.

Ms. Switzman says that Mr. Bryant had already started to cross the street before my son got up, and it was in her opinion only because Mr. Bryant had taken that manoeuvre that my son was able catch up to the car; had Mr. Bryant started in a westerly direction, as he would normally have done (and as Mr. Peck asserts so positively he did), my son would not have been able to catch up to him on foot. Ms. Switzman further says that Mr. Bryant accelerated violently as soon as my son put his hands on the car, giving my son no choice but to hang on for dear life.

Ms. Switzman did not give that information in her 01 September 2009 statement to homicide officers Bartz and Vo, because she was not given the opportunity: her statement was taken and conducted without knowledge of Mr. Bryant’s version of the incident, given almost eight months later.

Given that lapse of time and the fact it allowed Mr. Bryant to digest and counter all of the information against him, it might have been advisable, in a thorough and unbiased investigation, to reinterview witnesses in the light of Mr. Bryant’s testimony. But that, according to Mr. Sandler, would have been an unusual departure from procedure. Again, quoting from Jennifer Wells of the Toronto Star:

Given the inconclusivity of what Sandler calls the “most important evidence in the case,” at least as far as the first possible contact between bike and car, it might seem reasonable to interview the eyewitness closest at hand. “We normally don’t go back … and start reinterviewing all the eyewitnesses at this stage of the process,” Sandler says. “The interviews I conducted at Rick’s (Mr. Peck’s) direction were of Mr. Bryant, Mr. Bryant’s wife, and interviews and information we were given by the defence.” [Wells, 16]

It is hard to know how to respond temperately to Mr. Sandler’s comment. I will simply say this: To present as apparently routine something (interviewing a defendant and his wife before trial, and without prejudice) that is arguably never done (or hardly ever done; I do not have the means to conduct the necessary research), while at the same time casually asserting that reinterviewing witnesses is an unusual exception to normal procedure, is (to return to a word I have been forced to overuse in this brief, to avoid using more offensive terms) disingenuous—breathtakingly so.

How is it defensible—How is it just?—to take and put on record as inarguable fact (“There isn’t a chance in hell…”) information taken after a fact and argue, in circumstances where there is no forum for rejoinder or appeal, that that information trumps in every significant way information that was given and taken beforehand? (Much of that beforehand information, I feel compelled to note, is dismissed by Mr. Peck and Mr. Sandler as neither objective nor credible, even though, when considered without reference to Mr. Bryant’s without-prejudice statement, much of it seems both objective and credible.

Questions relating to Mr. Bryant’s version, that could not have been asked and answered in formal statements by witnesses immediately after the event, would certainly have been asked at trial. They should also have been asked by Mr. Peck and Mr. Sandler before producing an explanation of their decision that, considered objectively, explains little and raises many questions about the administration of justice on their watch.

Mr. Peck’s explanation of his decision is riddled with questions and ambiguities. The limited scope of this brief does not allow me to deconstruct their arguments as fully as I would like. I would be happy, however, to appear at a hearing to explain my many concerns and answer any and all questions.

I feel compelled to press my concerns for many reasons. Perhaps the most important are these:

  1. I want to redeem to an appropriate degree my son’s reputation; for my sake, for his memory’s sake, but mostly for the sake of his children, who must not be left with the distorted image of him presented by Mr. Bryant and Ms. Henein and broadcast to the public record by Mr. Peck and Mr. Sandler. That is not to say I want to whitewash my son and his history, only that there is a more balanced story that can and must be told.
  2. I want to do everything I can to ensure that nothing in the handling of this case serves as a precedent for future cases and, especially, for future special prosecutions anywhere in Canada. As a lay person, I am appalled at how casually and cavalierly Mr. Peck and Mr. Sandler proceeded and departed from normal practice. I am disturbed by many things done and said by Mr. Bryant and Ms. Henein too, but I accept that, in our now nominally adversarial system, the defence has a right to defend in any way it thinks appropriate. I do not accept that the Crown has a right or a duty to act as an advocate for the defence.

I am chilled by the thought that this case and the way Mr. Peck and Mr. Sandler handled it might serve as a precedent for future cases. I have been assured by lawyers that the circumstances of the case are so unique that such an outcome is unlikely. But I recall that Mr. Greenspan, the originator of the Scopelliti defence, thought the same about that possible precedent; yet it has been used several times since and is now taught in evidence courses at law schools across Canada. I fear the “Bryant defence” could gain similar credibility and respect, and become commonplace.

  1. Even if that unfortunate outcome does not seem likely to better legal minds, I believe that the circumstances demand that Mr. Peck and Mr. Sandler be held accountable for their arbitrary and unjust prosecution of the case—not for their decision to drop charges, but for their decision to give Mr. Bryant an unwarranted exoneration by means of an unnecessary, unprecedented explanation.

Accordingly, I respectfully request that I be given access to Crown files, excepting only those that might compromise the privileged relationship between defendant and counsel, the need for which I accept and support as fundamental.

I believe a socially just society must be judged by how it treats its weakest members. I also hold that a justice system must be judged by how it treats its weakest and (perhaps to those charged with administering it) its least attractive members.

By that standard, Mr. Peck and Mr. Sandler have failed and must be held accountable. Otherwise we are left to accept the notion that something is legal simply, and only, because the law did it.

Submitted by

(Roy) Allan Sheppard

12319 40 Avenue NW

Edmonton, AB T5J 3S2

Telephone: 780 240-5340

E-mail: allansheppard12@gmail.com

23 October 2013

Notes

  1. With the Star…and the Post…in agreement that Bryant is exonerated, the city is probably not looking at a civil war any time soon.” Toronto Life on line, 26 May 2101, “Reaction roundup: Michael Bryant is tarnished but still golden, according to Toronto’s newspapers” (http://www.torontolife.com/informer/people/2010/05/26/reaction-roundup-michael-bryant-is-tarnished-but-still-golden-according-to-torontos-newspapers/)
  2. Based on an excerpt from class notes prepared by a student or students taking a course in criminal evidence at McGill Law School in 2007. There is not source URL for this document. It can be found by a search for: R v. Scopelliti (1981), 63 CCC (2d) 481 (CBp.459).

 

Bibliography

Alvaro, Alexander, Emerging Issues in the Area of “Scopelliti” Evidence, HeinOnline — 36 Crim. L.Q. 381 1993-1994 (http://heinonline.org/HOL/LandingPage?collection=&handle=hein.journals/clwqrty36&div=28&id=&page=)

Ontario Court of Appeal, 9th November 1981, Regina v Scopellliti (attached)

Ontario Court of Justice, Court Proceedings, Toronto, May 25, 2010 (https://darcyallansheppard.files.wordpress.com/2013/05/das-court-proceedings.pdf)

Peck, Richard & Sandler, Mark, Executive Summary (distributed at the end of court proceedings, Toronto, May 25, 2010) (https://darcyallansheppard.files.wordpress.com/2013/05/das-executive-summary_bryant-decision.pdf)

Sen, Amartya, The Idea of Justice, Cambridge, Mass., the Belknap Press of Harvard University Press, 2009.

Vance, Detective Constable J. (004), Collision Reconstruction Report, Fatal Collision 23/009 (https://darcyallansheppard.files.wordpress.com/2013/05/das-tps-collision-reconstruction-report.pdf)

Wells, Jennifer, Lost Boy, the Death of Darcy Allan Sheppard, Toronto Star Dispatches Ebook, August 24, 2013 (stardispatches.com)

Police Memo Book Notes

This post contains typed transcripts of handwritten notes from the memo books of Toronto Police Services officers who attended at the scene or who monitored or supplemented the investigation at the time and after, until charges against Michael Bryant were dropped by Special Prosecutor Richard Peck on 25 May 2010.

A-List documents are from the notes of officers who played a significant role in the investigation or its supervision.

B-List documents are from the notes of officers who played a marginal investigative role.

C-List documents are from the notes of officers who attended at the scene or during the investigation but did not contribute directly to the investigation.

NOTE: The quality of handwriting in the notes varies greatly. The transcripts are the best efforts of several volunteers and do not purport to be true and complete copies of the content. Pdf copies of the A-List and B-list notebook pages will be posted before 25 May 2015. (21 February 2015)

A-LIST DOCUMENTS:

Memo Book Note 1A – ADACH, SGT ED 6315

Memo Book Note 2A – BAKER, PC JASON 8741

Memo Book Note 3A – BARTZ, PL HANNAH 8747

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