After the trial and acquittal of Jian Ghomeshi much has been written and spoken regarding his lawyer Marie Henein and her work with another famous client, former Ontario Attorney General, Michael Bryant. In both cases the media attributed Henein’s success to her ability to find exculpatory evidence supporting her clients. The question that has not been addressed is why did Ghomeshi’s case go to trial but not Bryant’s? Why did Henein reveal her entire defence to the Crown in Bryant’s case, in order to avoid a trial but not in Ghomeshi’s case?
The simple answer would be that Henein felt the evidence, against Jian Ghomeshi (including the exculpatory evidence she had uncovered) was stronger than the evidence against Michael Bryant. The Crown in Ghomeshi’s case went to trial because they believed they had a reasonable prospect of conviction. The Crown in Bryant’s case, represented by special prosecutor Richard Peck and his Ontario agent Mark Sandler determined that there was no reasonable prospect of conviction.
Both defendants had the same lawyer, so let’s compare the strength of the evidence in each case.
The Ghomeshi case involved accusations of sexual assault by Ghomeshi of three women. Sexual assault cases like this one are difficult because the evidence is mainly he said/she said. There are no witnesses, forensics or video evidence to support either side.
“The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception.”
Before the trial, Henein came into possession of email messages and text messages from the complainants that she believed would undermine their testimony resulting in a not guilty verdict. The statement from Justice Horkins would appear to (rightly or wrongly) support that view. Henein could have presented this new evidence to the Crown prosecutors in the hope that the Crown would drop the charges, saving her client the embarrassment and significant costs of a trial but she chose instead to proceed to trial.
In Michael Bryant’s case he was charged with criminal negligence causing death and dangerous operation of a motor vehicle causing death in the killing of Toronto bike messenger, Darcy Allan Sheppard. Bryant’s actions were captured on surveillance video and witnessed by several people, and subject to forensic evidence.
Two witnesses saw what happened when Bryant rammed his car into the back of Sheppard’s bike two times with increasing force, ultimately propelling him and his bike at least 22 feet along the road. The two witnesses’ accounts of the events corroborate what is seen in the video. Several witnesses reported when Sheppard got up after falling from the hood of the car on to the road, he pointed at all of the bystanders and said what may have been his last words: “You are all witnesses!”
More witnesses saw Bryant reverse and accelerate quickly around Sheppard’s bike while Sheppard stood up, approached the Saab and grabbed on to it. They say Bryant drove westbound in the eastbound curb lane of Bloor Street, with Sheppard hanging on for dear life. Bryant admits to slamming on the brakes to try to knock Sheppard off.
Witnesses reported Bryant drove very close to the curb causing Sheppard to strike a fire hydrant, then a tree and a post box. Sheppard was knocked off the Saab, fell into the roadway and lay there dying while Bryant fled to the Hyatt Hotel where he waited three minutes to call 911.
Forensic evidence would reveal that even though Sheppard’s hands were bleeding his fingerprints and blood were found nowhere near the steering wheel. The Police Reconstruction Report concluded:
“There was no physical evidence, or independent witness statements suggesting Mr. SHEPPARD affected the steering of the Saab, or anything to suggest he physically attacked Mr. BRYANT.”
So why did the Peck and Sandler withdraw the charges against Bryant? In court Richard Peck said “given all of the evidence, in particular new information that has been discovered since the charges were laid, the charges must be withdrawn.”
What new evidence? Both Bryant and Henein claim that the video expert analysis was the most important new exculpatory evidence discovered by Henein and her team. In his book, “28 Seconds” Bryant wrote:
“When it came to getting charges dropped, obtaining watertight expert evidence was the linchpin. The prosecution could drop charges only if we could present irrefutable forensic evidence from the finest experts we could find, backed up by peer-reviewed expert analysis, and bolstered by additional expert evidence surrounding it.”
Bryant claimed the “the seminal expert was the video expert. He took what the police had provided, all those videos of shadows and figures and the Saab and its headlights, and made sense of it. He was able to break down the event to 1/100 of a second.”
In her essay “Split Seconds Matter” (in “Tough Crimes: True Cases by Top Canadian Criminal Lawyers”), Marie Henein, like Michael Bryant placed emphasis on the video evidence. She wrote:
“Although at first blush it was troubling, the video surveillance would become the most critical piece of evidence for the defence.”
Yet in court neither Richard Peck nor Marie Henein presented any of this conclusive video expert evidence and neither did Bryant in his very detailed book.
In his 911 call Bryant attempted to portray Sheppard as the aggressor by saying “I thought he took a swing at me, but whatever, he missed.”
In court Peck acknowledged that “the video does not confirm that Mr. Sheppard did take a swing.” In other words the expert analysis confirms no swing appears on the video.
The police reconstruction report says:
“21:48:48 Cyclist drove down center of roadway past Saab with hands on handlebars.”
The only other relevant piece of expert video analysis revealed is used in an attempt to support Bryant’s very new claim that his car stalled multiple times even though according to the police reconstruction report, police notes and three videotaped witness statements, no witnesses supported his assertion. Peck said “the video shows changes in the luminosity of the Saab’s headlights on a number of occasions. The expert evidence confirms that one explanation for this is that the headlights dimmed as a result of the vehicle stalling and then being restarted.”
Peck’s careful wording is an attempt to make a very inconclusive statement sound conclusive. In other words the expert analysis was unable to determine if the luminosity changes were due to the car stalling because it could be one of many explanations, perhaps not even the most likely explanation because Peck doesn’t say that either.
The question remains, if the video expert analysis is so important and so exculpatory then why was it not presented and why does it continue to be hidden by both the defence and the Attorney General’s office as Darcy Allan Sheppard’s father has applied to see it under a freedom of information act request.
In fact the video expert analysis is so important to Henein’s case that outside of court she has made claims that contradict what was presented in court by Peck.
In her essay “Split Seconds Matter: Henein wrote:
“The video would also show that Sheppard leaned in toward Michael’s vehicle and appeared to either swing or throw something in the direction of the driver’s head.”
“The forensic examination of the videos revealed the following…. “Despite no previous interaction with Michael, Darcy Sheppard appears to lift an arm and either swing or throw something at the driver.”
This is a complete contradiction of Peck’s presentation in court, when he said “the video does not confirm that Mr. Sheppard did take a swing.” Both Henein and Bryant claim that the video expert was able to break down everything that happened in to 1/100th of a second yet even then experts saw no swing on the video.
If the video expert evidence was at best inconclusive and at worst supported the Crown’s case and eyewitness statements then how could Peck possibly withdraw the charges against Bryant?
The only other new pieces of information were the defence’s “Scopelitti witnesses.” These were six people who were not eyewitnesses to the Bryant-Sheppard altercation. These were people who after seeing reports in the media claimed that they also had or witnessed an altercation with Sheppard. Courts are very apprehensive in allowing these types of witnesses to testify.
Peck introduced the accounts of these witnesses ”to show the probability that the deceased was the aggressor”, even though there were eyewitnesses who made statements that Bryant was the aggressor and much of the incident was captured on video.
Peck also said that his local agent, Mark Sandler, together with one of the investigating officers, interviewed all but one of these witnesses and “based on the investigation that the Crown and police have undertaken we are satisfied that reliance should be placed on the witnesses whose accounts of six separate incidents are outlined below.” Neither Sandler nor Peck bothered to interview any of the actual seventeen independent eyewitnesses who were on the scene of the incident, although they did interview both Bryant and his wife.
In his book Bryant acknowledged the danger of accepting as truth the accounts of people who saw a picture in the media from a very prominent case.
“Some people might be sharing their delusional fantasies, others their tales of woe that involved a cyclist, but not necessarily the cyclist Darcy Sheppard. Police are very familiar with this phenomenon, wherein callers offer up information that turns out to be useless to their investigation.”
The accounts of these witnesses range from three or four years prior (the witness could not remember which year) to the same night, in which the witness said she was not absolutely sure it was Sheppard. According to Bryant, Henein interviewed these witnesses herself and her photo identification technique was to show the witnesses the exact same photo they saw in the media and have them identify it.
Normally the admissibility of these witnesses would be challenged one by one by the Crown in a voir dire hearing. The likelihood of a judge allowing them to testify would be quite low, as the unreliability of witness identification is the most common cause of wrongful convictions as put forward by Marie Henein herself in R. v. Miaponoose, 1996.
The subsequent evidence Marie Henein discovered in the Jian Ghomeshi trial delivered a blow to the credibility of the most crucial evidence against the defendant. The subsequent evidence Henein discovered in the Michael Bryant case was so weak in the area of witnesses it would likely be inadmissible. The subsequent video expert evidence was either inconsequential or actually lent support to the Crown’s case. Yet inexplicably, the charges against Michael Bryant were withdrawn by Richard Peck.
After the verdict in the Ghomeshi trial, Marie Henein sat down for an interview with the CBC’s Peter Mansbridge where she said:
“Justice does not mean that you are guaranteed the result that you want; justice does not mean that you will be presumptively believed, or that your evidence will not be tested … You are guaranteed an opportunity to be heard and … a fair trial,”
While many people are rightly outraged at our justice system’s failings at least the evidence against Jian Ghomeshi was tested. Despite a stronger case, the evidence against Michael Bryant was not tested, and has never been heard. As long as the evidence continues to be hidden and embargoed it leaves many unanswered questions that harm the appearance of justice in this country, including why was the evidence not tested?
Was it just too strong even for Marie Henein?