“Two-tier justice means that those who can afford a legal dream team can buy their way out of jail” – Michael Bryant
After police charged former Attorney General Michael Bryant with criminal negligence causing death and dangerous operation of a motor vehicle causing death in relation to the death of cyclist Darcy Allan Sheppard, the Ministry of the Attorney General appointed BC criminal defence lawyer, Richard Peck as Special Prosecutor.
In September 20009, many news outlets reported based on a source familiar with the situation, that, In order to avoid a perception of a conflict of interest, Bryant’s successor, Attorney General Chris Bentley and his staff would “not be involved in Bryant’s case or take questions about it.”
“Instead, public servants in the ministry will deal with the file and report to deputy attorney general Murray Segal directly. Segal “moved very quickly to put the appropriate firewalls in place,” the source said.” (Metro September 3, 2009)
The problem with this move is that Murray Segal was also the deputy attorney general during Michael Bryant’s time as Attorney General, which meant that Bryant’s own deputy was handling his file. In fact even today, Bryant has a testimonial on Segal’s website:
“Murray Segal is a strategic, innovative and inspiring leader – who also has an uncanny ability to see the big picture when others are focusing on the small details.” – Former Attorney General of Ontario, Michael Bryant
(After leaving public office Murray Segal joined Michael Bryant’s lawyer, Marie Henein at her boutique law firm.)
In September of 2009, MacLean’s Magazine published an article by Philippe Gohier entitled “How do you prosecute your former boss?” The article looked at the problems of prosecuting the former Attorney General for Ontario and presented it as a test for Ontario’s judicial system.
Gohier noted that “the case against [Bryant] promises to be one of the most highly-scrutinized in the province’s history” and that “the mere perception of conflict of interest risks tainting the trial.”
“If Bryant is to receive a fair trial, says Ed Ratushny, a law professor at the University of Ottawa and the former president of the Canadian section of International Commission of Jurists, “the preoccupation of the police and of the prosecution is to make sure that in reality and in perception, this accused is treated in the same way that any other accused would be treated.”
In reality and in perception, was Bryant treated the same way that any other accused would be? The simple answer is no. Bryant was clearly treated like no other accused. There was “unprecedented” co-operation between the Crown and the defence. Peck went in to Court and presented the defence’s case for them. Peck completely ignored the statements of the only two eyewitnesses who saw what happened from the beginning. He could cherry pick the evidence to present because there was no balance. There was no one in a position to challenge his position.
Special Prosecutor, Richard Peck was brought in to create a perception that Bryant would be treated the same as any other citizen. However Peck is not a prosecutor. He is a prominent defence attorney with a pro-accused viewpoint that often results in bias.
Many members of the criminal defence bar like to think lawyers can ignore their own bias at will. However the same criminal defence bar is quick to point to the under-representation of criminal defence attorneys on the judicial bench as a problem that will skew the balance of justice.
The criminal defence bar made that very claim in article by the Globe and Mail’s Sean Fine on December 29, 2014, “MacKay’s judicial appointments favour prosecutors over defence.“
The criminal defence bar reacted to then Justice Minister, Peter MacKay’s appointment of eight prosecutors and no defence lawyers to the federal bench, complaining that it created a “growing imbalance on the federal bench.”
According to Fine, “the criminal defence bar [was] deeply unhappy at what it sees as a government attempt to skew the balance on the bench.”
Balance is an important part of our adversarial judicial system. We have prosecutors on one side and defence attorney’s on the other and the judge in the middle.
Fine quoted Peter Wilson, a senior Vancouver defence lawyer, who said “balance is necessary in an adversarial system. And if you pick all of your judges from one side of the system, sooner or later you will skew the balance. It will take time, but it will happen.”
Dalhousie University law professor Wayne MacKay noted that “an impartial and fair bench can best be built by having a diversity of views represented within the judiciary.” He also cautioned hiring justices based on “their particular viewpoints, whether they’re likely to be pro-crime control or pro-accused, whether they’re pro-government or more willing to challenge the government.”
If balance on the judicial bench is important then balance in the courtroom should also be important. If defence lawyers have a pro-accused viewpoint they should not be acting as prosecutors, especially in cases where the accused is a colleague and former Attorney General.
The appointment of prominent criminal defence attorney, Richard Peck created a perception of an imbalance in the court room. Both sides of the court came in with a pro-accused viewpoint which resulted in unprecedented co-operation and a perception of a lack of objectivity by the special prosecutor.
It comes as no surprise that BC criminal defence lawyer, Richard Peck would later be recognized by the Ontario criminal defence, in part, for his work on Michael Bryant’s case.