How Michael Bryant, the Executive Director of the Canadian Civil Liberties Association killed Darcy Allan Sheppard and how the justice system was manipulated to set him free


This article is based on a Twitter thread. As the 10th anniversary of Michael Bryant’s killing of Darcy Alan Sheppard approaches, we will be posting more detailed articles dealing with the evidence presented in the Twitter thread

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On August 31,2009 former Ontario Attorney General Michael Bryant killed Metis bike messenger Darcy Allan Sheppard in a road rage attack. Bryant was charged with criminal negligence causing death & dangerous operation of a motor vehicle causing death. Michael Bryant’s actions were captured on surveillance video and witnessed by several people, and subject to forensic evidence.

The Attorney General for Ontario brought in criminal defence attorney Richard Peck as “special prosecutor” because Michael Bryant as Attorney General of Ontario had been most prosecutors’ boss. Richard Peck was unlicensed to practice law in Ontario so he turned to Toronto criminal defence lawyer Mark Sandler as his agent. Like Michael Bryant, Richard Peck was from the Victoria BC, area. Both were from political families. Both were boxers. Both were lawyers

One month before he killed Darcy Allan Sheppard in a road rage attack, Michael Bryant told the Toronto Star “road rage is back in my life”.

In his memoir “28 Seconds” Michael Bryant admitted that the months leading up to the death of Darcy Allan Sheppard were a difficult time for him.

“I was usually in the dog house that summer. Somehow I wasn’t engaged with the same human race of which my wife was a member. I was a distracted presence in my own marriage, my mind usually somewhere else…I was going through the pressure of a career change, a significant reorientation, maybe even something of a small mid-life crisis.”

Prosecutor Richard Peck characterized the Bryants’ “celebration” of their 12th wedding anniversary as a special evening for the couple. “The mood was warm, it was nostalgic, it was reminiscing like many couples do over their years together.”  Although it was their anniversary Michael Bryant admitted that the night of August 31 was filled with tension, noting that he and his wife argued. “We talked about our marriage – part debate, part monologue, part argument. Our marriage is in trouble.”

Bryant was also unhappy with the anniversary gift he got for his wife. His wife seemed unimpressed. In a last-ditch attempt to salvage the night Bryant raced to Bay and Bloor to buy his wife the anniversary present that she really wanted. Bryant made good time until his path to redemption was stopped dead by a traffic jam for which Michael Bryant blamed Darcy Allan Sheppard. Bryant said Sheppard was doing figure 8’s on his bike, blocking the lane with pylons and spitting on a windshield. No one else saw any of this. No witnesses no surveillance camera caught any of the acts Michael Bryant claimed. But later video shows Sheppard riding past Bryant and stopping his bike in front of Bryant’s convertible Saab & putting himself in harm’s way.

Here is the law at the time regarding self-defense. The prosecution would only have to disprove one of these to convict Michael Bryant

There are four essential elements which must be met in order to come within the ambit of s. 34(1) and thereby be justified in using force to repel force:

(i)the accused was unlawfully assaulted;

(ii) the accused did not provoke the assault;

(iii) the force used by the accused was not intended to cause death or grievous bodily harm; and

(iv) the force used by the accused was no more than necessary to enable him to defend himself.

You can’t be the aggressor and then claim self-defense. When Michael Bryant attacked Sheppard and hit him twice with his car he had not been assaulted nor threatened.

Michael Bryant claimed that he THOUGHT Sheppard took a swing at him as Sheppard passed his car. Richard Peck acknowledged: “The video does not confirm that Mr. Sheppard did take a swing.” In other words Richard Peck said there is no swing on the video. The Police reconstruction report of the incident noted:

“Cyclist drove down centre of roadway past Saab with hands on handlebars”

Michael Bryant claimed that Sheppard stopped his bike facing toward Bryant “His front wheel was within a couple of feet of the Saab front bumper.” Independent eyewitnesses stated Sheppard’s bike was facing away from Bryant’s car. Video and forensics prove Bryant’s car hit the back of Sheppard’s bike.

Only two independent witnesses saw what happened before Sheppard was hit and knocked on to the hood of Michael Bryant’s car. Both made 911 calls. Both witnesses were questioned by the police on video within hours of Darcy Allan Sheppard’s death.

The statements by these two witnesses match the surveillance video of the events that night. Both of these eyewitness describe events that clearly portray Michael Bryant as the aggressor who intentionally attacked Sheppard with his car. The Police reconstruction report  agreed with these witnesses.

“Mr. BRYANT struck Mr. SHEPPARD not once, but twice from a stopped position on Bloor Street West east of the pedestrian signalized intersection.”

Richard Peck never mentioned these two eyewitnesses in court. Nor did he mention the findings of police reconstruction report. Nor did he show any video. The only witnesses Peck mentioned were those who only saw what happened AFTER Sheppard got up off the ground

Michael Bryant made no claim of his car stalling in his 911 call. He said “I slammed on the brakes and I tried to get away,” but 7 or 8 months later Bryant would claim his car stalled and restarting it caused his car hit Sheppard – twice. Michael Bryant’s lawyer Marie Henein hired video expert, Grant Fredericks to analyze the surveillance videos. Richard Peck relied on Fredericks’ analysis to make Bryant’s case.

In his statement to the court, Richard 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.” Note that Peck does not say the “best explanation,” merely one possibility. Peck also does not make any mention of the likelihood of this possibility.

Grant Fredericks has been accused of bias and whitewashing video evidence with his analysis. US Justice Department basically said Fredericks has a long record of bias in favor of embattled police officers, police departments & that he regularly shapes his expert testimony accordingly. Fredericks analyzed video in Tasering death of Robert Dziekanski in favour of the police at the Braidwood Inquiry. Two other experts dismissed Fredericks’ flawed methodology and analysis. Justice Braidwood ruled he could not rely on Fredericks’ analysis because his verification methodology was flawed.

In the case of Ryan Holyk, in Spokane, Grant Fredericks’ analysis of video concluded that “the police vehicle passes to the north of [Holyk’s] bicycle by just over two feet,” missing Ryan. Holyk’s family hired their own experts who found Holyk’s DNA and an imprint from his hat on the bumper of the police vehicle proving that the vehicle hit Ryan and Fredericks’ analysis unreliable. As a result, the Spokane County Sherriff’s Office paid Holyk’s family $1 million to settle a wrongful death civil suit.

In his presentation, Richard Peck said “the video does show that Mr. Sheppard slowed his speed and came very close to the driver’s side door” However if you watch the video you will see that Sheppard cuts in after he passes Bryant’s door.

In Fredericks’ report, he shows two freeze-frame pictures to illustrate Peck’s point. In the first picture, he says ”shadow on road is to the left of the vehicle, roughly indicating the cyclist’s distance is at least a few feet.”

 

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In the second picture, he says ”cyclist’s shadow is on road in front of Saab, indicating the bicycle is close to Saab. But in the frame Fredericks chose to make his point, Sheppard is already passed Bryant’s door which supports what we see in the video and not the statement Richard Peck made in court

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According to Richard Peck: Michael Bryant went from 0 to 13 km/hr and traveled 30 feet when he rammed into Sheppard and knocked him on the hood. Bryant left a 22-foot scrape in the road from Sheppard’s bike. In court, Peck dismissed these moments as “a flash.” Richard Peck’s Toronto defence agent Mark Sandler referred to Michael Bryant’s attack up to this point as “moderately slight contact.”

Several witnesses reported when Sheppard got up after falling from the hood of the car on to the road, he said: “You are all witnesses!” These were very likely Darcy Allan Sheppard’s last words after Michael Bryant attacked and killed him.

Eyewitness to motorist killing of cyclist in Toronto. Victims last words were, “you are all witnesses to this” from Mess Media on Vimeo.

After Michael Bryant claimed his car stalled, Richard Peck and Mark Sandler never asked eyewitnesses if they saw Bryant’s car stall. The only follow-up interviews Peck and Sandler conducted were with defence witnesses.

The Police reconstruction report concluded that Michael Bryant’s “final actions in the third collision sequence led to the death of Mr. SHEPPARD.”

Michael Bryant’s “failure to stop his Saab when Mr. SHEPPARD deliberately hung on to the side of the Saab, and driving his vehicle on the opposite side of the road in an attempt to dislodge Mr. SHEPPARD from his vehicle gave the appearance of a deliberate act according to witnesses.”

Construction workers witnessed Bryant knock Sheppard off the car by hitting a fire hydrant, then a tree and a mailbox. One construction worker told a TV reporter,

“Oh yeah! He [Bryant] meant to knock him off.”

Another construction worker told the TV reporter “all I saw was the car speeding up the wrong side with the injured man on the driver’s side of the car holding on as tight as he could. And then the driver [Michael Bryant] of the car pushing up against the curb trying to knock him off on the poles as he went down the opposite side of the road.” The construction worker also said, “He [Michael Bryant] was yelling pretty loud and he [Michael Bryant] sounded very very angry, kind of road rage but honestly someone that was kind of, I don’t think all there.” “He [Sheppard] was definitely holding on for dear life”

Eyewitnesses to a killing by a motorist in Toronto from Mess Media on Vimeo.

After Michael Bryant drove to the Hyatt Hotel, in what he described as a state of fear, he did not call 911 right away. Bryant waited at the Hyatt Hotel for three minutes before he called 911! In court, Richard Peck said “Mr. Bryant used his wife’s cell phone to call 911. This occurred approximately 3 minutes after he arrived.” Bryant also had a cell phone with him. Bryant implied that Sheppard may have stolen it but Bryant’s cell phone was found in his car, in the footwell of the front passengers’ seat. Michael Bryant’s wife Susan Abramovitch had her cell phone with her. She never called 911 at any time during the incident. In his book, Bryant claimed that Abramovitch was so traumatized that she couldn’t offer any testimony. However after Bryant killed Sheppard, she set up a twitter account and her avatar was her sitting in the driver’s seat of a (different) black convertible.

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After Michael Bryant was arrested he hired the public relations firm Navigator to spin the story for him. Navigator’s slogan is “When you can’t afford to lose.” They have a 24/7 crisis line to call. Shortly after Navigator was hired stories appeared that Sheppard may have grabbed the steering wheel of the car and caused his own death. The police reconstruction report confirmed that Darcy Allan Sheppard did not touch nor affect the steering wheel of Bryant’s Saab.

“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.”

Sheppard was bleeding from his hands. Police found his blood in some places in the car where he touched but nowhere near the steering wheel.

“Blood was not located on the steering wheel, passenger side or on the tires of the vehicle.”

Michael Bryant claims he did not have control of the car when he drove on the wrong side of the road but his lawyer, Marie Henein implied in Court that Bryant intentionally drove on the wrong side of the road.

“at this point there were only two options, stop the vehicle and be attacked by Darcy Sheppard, or risk driving into oncoming traffic, driving into oncoming traffic, exposing himself and his wife to a head-on collision.”

Also the fact that forensic evidence showed that his car never went over the curb supports the narrative that he was in control of the car.

In his address to the court, Richard Peck discounted the eyewitnesses who saw Michael Bryant attack Sheppard, “Eyewitnesses see different things.” “There were quite disparate accounts of what happened from eyewitnesses or alleged eyewitnesses.” Mark Sandler told the Toronto Star “as is often the case when you’ve got a reconstruction of a traffic-related matter, the eyewitness accounts are wildly at variance with each other.”

Peck and Sandler carefully avoided revealing the most common problem from eyewitness statements – eyewitness misidentification. According to the Innocence Project eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide.

 

Innocence Project: “Research illustrates that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound” 

“In eyewitness identifications, witness memory is impacted by a variety of factors that occur from the time of the crime onwards, and their memories can be easily contaminated”

Due to the heavy publicity of the case, many people called Marie Henein to say they had or witnessed an altercation with a cyclist. Peck said he introduced the accounts of these witnesses ”to show the probability that the deceased was the aggressor”

For good reason, courts are very apprehensive about allowing these types of witnesses to testify. Michael 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”

Accounts of these witnesses range from 3 or 4 years prior (the witness could not remember which year) to the same night. The witness from the same night said she was not even absolutely sure it was Sheppard yet Peck presented her claims. How did these witnesses identify Darcy Allan Sheppard? His photo appeared in the media. According to Michael Bryant, Henein interviewed these witnesses herself. And her photo identification technique was to show the witnesses the exact same single photo they saw in the media and have them identify it but in reality, Sheppard looked different in many pictures.

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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. Marie Henein put forward this argument herself in R. v. Miaponoose, 1996.

“Eyewitness testimony is in effect opinion evidence, the basis of which is very difficult to assess. The witness’s opinion when she says “that is the man” is partly based on a host of psychological and physiological factors, many of which are not well understood by jurists. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Permitting a witness to see a single photograph of a suspected person or of a prisoner, after arrest and before scrutiny can have no other effect, in my opinion, than one of prejudice to such a person.”

Richard Peck, the prosecutor accepted the identification of Sheppard by these witnesses without challenge. None of these witnesses saw anything that transpired between Michael Bryant and Darcy Allan Sheppard. Only one called police after their interaction with a cyclist. Darcy Allan Sheppard was never arrested, questioned or wanted for questioning in any of these cases.

Richard Peck contaminated the justice system by accepting their flawed identifications instead of actual video of Michael Bryant’s attack and eyewitnesses on the scene who made video statements explicitly stating that Michael Bryant was definitely the aggressor. In fact, as the special prosecutor, it would have been Peck’s job in court to challenge these witness statements as unreliable and prejudicial. Instead, he used them to attack and vilify Sheppard.

Perhaps there is an explanation for Richard Peck and Mark Sandler’s embracing and supporting their fellow attorney Michael Bryant. The “independent” lawyers, Richard Peck and Mark Sandler brought in to act as Special Prosecutors were not prosecutors. Peck and Sandler were Criminal Defence Attorneys with deep ties to the various groups supporting the profession, members of the criminal defence bar. In his memoir, “28 Seconds” Michael Bryant praised the criminal defence bar.

“But I learned something about the criminal defence bar in Toronto. They stick together and work together to help each other, even if they’re not retained on the case. This doesn’t apply to every lawyer, but amongst those who reciprocate, there is a small group of colleagues who advance the interests of the accused, at large.”

In her essay “Split Seconds Matter”, Marie Henein wrote:

“I couldn’t get away from the legal community’s oft-expressed sentiment. The truth is that Michael Bryant was well-loved by the legal community. Many identified with him, many knew him personally, and many were utterly grief-stricken over his situation. The pressure to get the right result was, to be honest, overwhelming at times. Nothing in law school gets one ready for this amount of scrutiny. One’s failure will be as notorious as one’s success, and the legal community, just like the public, loves both stories equally voraciously.”

On May 25, 2010, Richard Peck withdrew the charges against Michael Bryant claiming there was no reasonable prospect of conviction. After dropping charges against Michael Bryant. Richard Peck and Mark Sandler were each awarded the G. Arthur Martin Criminal Justice Medal. The G Arthur Martin Award is given out by the Ontario Criminal Lawyers Association (CLA) almost always to defence attorneys in Ontario as the Ontario Criminal Lawyers Association (CLA) is “the voice of the criminal defence bar”

Michael Bryant was never concerned with facing the legal system or facing justice. He was always concerned with facing the public.

“I was always sure that I’d be acquitted, but just as confident that a trial would be an excruciating and damaging exercise.” – Michael Bryant

Michael Bryant began planning for his resurrection immediately after he was charged. That is why he hired Navigator. That is what he has always done. Michael Bryant and Marie Henein came up with their defence strategy within a few days of his arrest. The strategy was to have the charges dropped because a trial would damage Bryant publicly.

When Michael Bryant was part of the McGuinty government he said

“My strategy would be to seek forgiveness, not permission, for any of my stunts. And that was the way I carried on.”

Almost every year there is a new story about his epiphany, his do-over, his resurrection, how he has changed and is seeking redemption but he hasn’t changed. He has never taken any responsibility or acknowledged anything he did that was wrong. Michael Bryant is a recovering alcoholic and he knows all too well about redemption and recovery. In “28 Seconds” he wrote:

“This is an important part of substance abuse recovery—accepting one’s role in harm, making amends, and then moving on. The guilt and shame carried around by some makes crime and substance abuse an even more toxic combination for the abuser. The only way out is recovery, and recovery typically requires a measure of redemption—action taken to right a wrong as best possible.”

Michael Bryant’s book was his first attempt at redemption yet he sought every opportunity to portray Darcy Allan Sheppard as “big, drunk and raging, growling, glaring, and cackling,” contradicting eyewitness statements. Bryant attempted to dehumanize Sheppard by referring to him as “a Tasmanian Devil”, “the beast” with “super-human strength.” He has never tried to make this right.

Both Bryan and Sheppard were recovering alcoholics yet Bryant and Peck used Indigenous stereotypes to attack Sheppard’s character & portray him as a raging drunk. They knew how the plea-bargain system leads people like Sheppard to plead guilty and they used it against him. Bryant acknowledged the justice system forces the poor and indigent to plead guilty to charges they may not have committed, yet Bryant and Peck used Sheppard’s plea bargain to vilify him and avoid responsibility for killing Sheppard. Sheppard had spent over five months in custody awaiting trial before he accepted a plea bargain and pled guilty to charges Peck brought up in court.

Bryant’s story of redemption was promoted heavily in Precedent Magazine:

“It becomes clear that Bryant has developed one core critique of the court system: innocent people are pleading guilty. I ask Bryant how he can be so sure. Because, he replies, as duty counsel he often has to convince his clients not to plead guilty, even when he thinks they have a good shot at fighting the charges. “Out of the people who are denied bail, I’d say about two-thirds want to plead guilty,” he estimates.

“You can imagine that, by day 10, he says, ‘Okay, where do I sign? Get me outta here.’ That’s when you get the guilty pleas.”

Bryant and Peck manipulated the justice system to use it as a public relations tool for Bryant. He has never voiced any regret for anything he has done.

When Michael Bryant was asked what he would do different with the benefit of hindsight, he said: “I never would have left the house.” That’s it. He would change nothing else. He has not learned any lessons.

Today Michael Bryant is the Executive Director of the Canadian Civil Liberties Association. He pretends to speak for the Darcy Allan Sheppard’s of Canada. Killers like Michael Bryant should never speak for their victims

 

For more on this case read Jennifer Wells’ e-book “Lost Boy: The death of Darcy Allan Sheppard”

 

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