The Peck Brief – Advocate for the Defence Part 1

Mess Media, May 27, 2010

Darcy Allan Sheppard and Michael Bryant

On May 25, 2010, special prosecutor Richard Peck announced that all charges against former Attorney General Michael Bryant would be dropped ruling that “there is no reasonable prospect for conviction in relation to either of the charges before the Court.”

Bryant had been charged with criminal negligence causing death and dangerous operation of a motor vehicle causing death in relation to the death of cyclist Darcy Allan (AL) Sheppard after a traffic altercation on August 31, 2009.

Most cases end with the ruling of a judge or jury but this case ended with the ruling of a single criminal defence lawyer acting as an independent prosecutor.

Peck released an eleven page brief analyzing some of the evidence and justifying his decision to drop the charges without a preliminary hearing of the evidence. His brief answered few questions but also raised many more.

We have separated Peck’s brief into the two parts. Part one focuses on the initial incident where Bryant’s vehicle rammed into Sheppard. Part two will begin where Sheppard grabbed on to the vehicle.

Summary

An analysis of Richard Peck’s brief reveals that he relied heavily on the unchallenged statements of Michael Bryant to come his decision to drop the charges. Peck cherry picked evidence to support Bryant’s claims and either suppressed or ignored alternative evidence that challenged Bryant’s version of the events.

Before looking at Peck’s analysis we must first understand the special prosecutor, his style and his motivations.

Richard Peck was chosen as special prosecutor in the case of Michael Bryant because he is a highly respected lawyer from outside Ontario with a reputation for high ethical standards and professionalism. He also happened to be in the Toronto area on the night this tragedy took place.

Although Peck is from outside of the province he and Michael Bryant share a similar history. Both are British Columbia boys, born and bred. They both come from political families and both became famous Canadian big city lawyers. Bryant is a Liberal and Peck has donated money to Liberal candidates. No doubt their paths have crossed a few times over the years.

Peck is regarded as one of Canada’s best criminal defence attorneys yet he has lost many cases.  That is because he often takes on un-winnable cases with a dedication to the accused, even those with a mountain of credible evidence against them.

Peck is “considered a lawyer’s lawyer, the person to call when lawyers themselves get into trouble.” He is a defender and promoter of the legal profession. Peck believes you “do what you can to enhance its image and enhance its professionalism and assist those you work with.”

Although he is a very successful criminal defence attorney Peck does not seem to have a history of successful prosecutions often recommending that no charges should be laid or no further inquiry necessary.

Peck ‘s dedication to the belief in the innocence of his accused clients is an admirable quality for a criminal lawyer but does it also affect his perspective in his role as a special prosecutor?

Peck has a reputation as a precise user of language. “His language is thoughtful; he considers his words fully and truly in a way that only someone with the love for the English language can.”

In a cover story for Canadian Lawyer entitled Mr. Congeniality, his co-counsel in the Air India terrorist bombing case, Michael Code, described Peck’s use of language:

“He really cares about language,” Code says of Peck. “This makes him a really unusual lawyer, he loves the English language, and he thinks about the English language, he chooses his words incredibly carefully. So he is probably the best read lawyer of any lawyer I know, because he is just so thoughtful and careful about the way he uses language, real precision and care.”

Peck’s Analysis of the evidence

While reading Peck’s brief we should remember that it is written by a dedicated criminal defence attorney who chooses his words carefully and precisely. He is “considered a lawyer’s lawyer, the person to call when lawyers themselves get into trouble.”

The primary source for much of the evidence in the brief comes from interviews conducted by the Crown with Michael Bryant and his wife Susan Abramovitch who is also a lawyer. Neither Bryant nor his wife gave statements to police at the time of the events. Peck does not inform us of the date of the interview. We must assume that Bryant’s defence team allowed them to be interviewed much later, once other evidence was gathered and well after the video tapes surfaced. It is not unreasonable to assume the married couple discussed their testimony prior to the interview. There is also a risk that their testimony was crafted to fit with the investigation. The defence team also gave the Crown access to the defence materials from its private investigation.

The brief reads like a statement of defence. If we did not know it was written by the prosecutor we would have believed that it was written by Bryant’s legal dream team. The main source for the brief is Michael Bryant. His claims tell the story. Evidence that supports Bryant’s testimony is highlighted and emphasized and much of the evidence that doesn’t support the testimony is ignored.

The major thrust of the brief is also the main tenet of Bryant’s defence. Bryant‘s lawyers and Peck argue that Sheppard’s prior propensity for aggressiveness show that it’s likely he and not Bryant was the aggressor.

Peck states that Sheppard has at least six altercations with motorists prior to the event, in other words in his entire lifetime. Peck lists all six allegations, even though some lack credibility.

In a courtroom, even an average lawyer would have no trouble dismissing some of these allegations under cross examination. The timing of the allegation from a 76 year old woman cannot be determined. Peck cannot even narrow it down to a specific year.  Peck refers to the timing “as several years prior.” The woman’s recollection is suspect. She can’t remember when the altercation happened but we are to believe she remembered Sheppard’s face several years after an altercation that lasted a few seconds. Peck found it credible enough to include.

Peck includes an allegation from earlier on August 31, 2009 even though it’s from a woman who claims she was a witness to erratic behaviour by a cyclist. The woman could not be certain that the perpetrator was Sheppard and none of the actual victims ever came forward to finger Sheppard even though the alleged act occurred  just a few hours before Sheppard and Bryant met and his picture was splattered all over the media the next day.

Peck states that “this prior history supports the events as described by Bryant and his wife” but even if the allegations are true what the prior history shows is that Sheppard was likely to yell and scream and spit at someone AFTER a confrontation or a perceived confrontation. The prior history does not demonstrate a propensity for violence. None of these people allege that they were violently attacked. They were threatened, verbally accosted and spat upon.

Moving on to the initial incident with Bryant, peck makes an error. He notes that Bryant “came to a red light.” Peck carefully avoids the phrase “stopped at a red light” because it would diminish his accusation.

Peck then states:

“Mr. Sheppard cycled past Mr. Bryant’s vehicle along the driver’s side and cut in front of the vehicle, stopping his bike directly in front of the Saab and blocking its way.”

“Blocking his way?” Peck acknowledges the light was red.  Sheppard stopped for a red light. There is no evidence that suggests his intent was to block Bryant.

We do know that Bryant stopped at the red light because we can see it on the surveillance video.  Sheppard’s behaviour was not threatening it was efficient and normal for urban cyclists. If Peck consulted a cycling expert he would have discovered that cyclists in Toronto routinely pass cars stopped at red lights and move to the front of the line. It’s one of the primary advantages of cycling downtown. There was only one lane of traffic so Sheppard’s safest lane position of about one metre from the curb or edge of the lane would put him in a position in front of Bryant’s car.

The video shows Sheppard rode by Bryant without threatening him. It appears up until that point that Bryant and Sheppard were indifferent to each other.

Bryant claims that his Saab stalled. Peck states that the video shows changes in the luminosity of the headlights on a number of occasions.

Peck carefully states the following:

“The expert evidence confirms that one explanation for this is that the headlights dimmed as result of the vehicle stalling and then being restarted.”

“One explanation.”  Peck doesn’t say “the most likely” or “the most credible, he plainly and precisely says “one.” The independent prosecutor is supposed to be responsible for the prosecution and not the defence. The independent prosecutor is supposed to champion transparency. So why would he not give details of the other explanations? Could it be because they would only cast doubt on Bryant’s claims?

Peck, the prosecutor, lists six different questionable allegations against the victim yet he cannot list all the explanations suggested by the expert evidence for changes in luminosity of headlight on a video. Also Peck notes that there were many witnesses, yet he finds none, not one single witness that can support Bryant’s claim of a stalled vehicle.

Next Peck notes the many witnesses that police interviewed. He comments that there are consistencies and inconsistencies in their evidence.

He carefully and precisely states:

“One of the largely consistent themes is that Sheppard loudly and aggressively confronted Mr. Bryant while he and his wife remained passive.”

The experienced defence lawyer acting as a prosecutor decides to keep the other themes from us. He omits evidence that doesn’t support Bryant’s well rehearsed claims.

Peck points to the vulnerability of Bryant in his convertible sports car with the top down yet Sheppard rides past the vulnerable Bryant making no threatening moves or comments. Earlier Peck claimed that Sheppard’s alleged prior behaviour was relevant to these events but Sheppard’s alleged prior behaviour contradicts Bryant’s claims. All of the previous allegations against Sheppard allege that he went after the motorist only after a confrontation or perceived confrontation. It was never alleged that he just snapped.

Bryant claims that all of sudden, Sheppard snapped and acted loudly and aggressively toward Bryant. In describing previous allegations against Sheppard, Peck was careful to explain Sheppard’s actions. He described Sheppard swearing and spitting at people but not this time. This is the most relevant and critical moment of the altercation yet Peck does not explain how Sheppard was acting loudly and aggressively. Peck doesn’t explain exactly what Sheppard did to panic Bryant.

In all of the other allegations against him, Sheppard told the other person what he perceived they did to him, but not with Bryant. In Michael Bryant’s version of the events he is perfect. Bryant doesn’t cut him off. He doesn’t honk his horn or tell him where to ride. He does nothing. Yet we are to believe that Sheppard acted out of character and went after him anyway for no reason.

Other evidence does not corroborate Bryant’s version of the events. On September 1, before the video was made public Christie Blatchford wrote a different version of the events based on eyewitness statements ignored by Peck.  Blatchford wrote:

“Earlier eyewitness accounts describe an angry clash between Mr. Bryant and Mr. Sheppard – a toot of the horn and a shout to get moving from Mr. Bryant; a refusal and perhaps an answering shout from Mr. Sheppard; Mr. Bryant edging his convertible closer, and by one account, actually hitting Mr. Sheppard’s bike”

Peck, the prosecutor/defence counsel left this evidence out of his analysis. We’re at the point where Peck’s omission of evidence is no longer surprising. He is simply transcribing Bryant’s claims.

The video, as alluded to by Christie Blatchford, shows Bryant push his car closer and closer to Sheppard in a threatening manner but Peck instead recounts Bryant’s statements as if they are unchallenged by evidence.  He purposely chooses to include Bryant’s claims instead of reported witness statements. Peck says Bryant claimed he was in a panic trying to start his car.

Peck states:

“When the vehicle restarted it accelerated into Mr. Sheppard causing him to land on the hood.”

The video shows Bryant’s car rammed into Sheppard but Peck is careful not to say that Bryant hit him knocking him down. Instead he says Sheppard simply landed on the hood and fell off.

Peck carefully relays Bryant’s vulnerability in a convertible and how Bryant claims he was panicked and terrified because Sheppard was loud and aggressive yet he makes no statement regarding Sheppard’s vulnerability on a bicycle or the fact that he was just rammed by a car. Instead Peck precisely states that Sheppard is clearly unhurt as if that makes the assault on Sheppard any less shocking.

Peck relays Bryant’s claims that the acceleration was unintentional and that Bryant was trying to start the engine. Curiously Bryant claims his car only stalled when it was convenient to his story. Bryant claims the car stalled because he slammed on his breaks (when he was stopped at a red light). After Bryant’s car crashed into Sheppard, he slammed on the brakes again but the car doesn’t stall. He just backed up and drove around him.

Peck states that the

“expert evidence demonstrates that approximately 2.5 seconds elapsed from the time the vehicle started its forward motion.” He also notes that the Bryant’s car reached a speed “somewhere between 9 kph and 13.4 kph and that the car travelled a distance of 30 feet.”

In all prior mentions of “expert evidence” Peck carefully points out that one explanation of the evidence may support Bryant’s claims. This time he does not because it is unbelievable that Bryant’s car could travel 30 feet in an accidental acceleration from a stopped position. Both the Crown and Bryant’s legal team conducted extensive tests on Bryant’s vehicle. If they had found a possible mechanical explanation for the sudden acceleration Peck would have emphasized it. Instead, acting like an experienced criminal lawyer defending his client, he makes no comment. Another independent prosecutor would likely have said something to the effect of “expert tests showed Bryant’s vehicle had no mechanical malfunction that would explain any accidental acceleration.”

Up to this point, the evidence clearly shows Michael Bryant as the aggressor. Sheppard passed him, acting indifferent.  He stopped in front of Bryant’s car at the red light. Because of construction there was no room for Bryant to pass Sheppard did not move when the light turned green. Witnesses state that Bryant honked and yelled to get moving. Sheppard may have yelled back which would explain other witness statements claiming he acted loudly. Prior allegations against Sheppard only allege that he confronted motorists after a confrontation or perceived slight.

Unhappy with Sheppard blocking his path, Bryant moved him out of the way by accelerating his car and ramming into Sheppard knocking him on the hood of the car for 30 feet before Sheppard fell to the ground. Bryant then backed up and drove around Sheppard. Sheppard stood up and grabbed on the vehicle as Bryant was driving away.

It is disturbing that a special prosecutor can dismiss charges so easily based upon the statements of the accused. The reason the special prosecutor is brought in is because of fears the accused will received special treatment by the justice system. Ontario needs justice reform. In cases where a special prosecutor is brought in, the justice system should require that a preliminary hearing by held in front of a jury so that all evidence is presented in open court.