Former Ontario attorney-general Michael Bryant talks to media outside the Toronto Police Traffic Services on Sept. 1, 2009.Darren Calabrese
Michael Bryant announced Thursday that he has chosen Toronto lawyer Marie Henein to go head-to-head against Vancouver star attorney Richard Peck in his high-stakes trial on charges in the death of cyclist Darcy Allan Sheppard.
The showdown is set to be one of the most explosive in recent memory as two of the country's top lawyers grapple with how a high-profile former politician with a glittering reputation who happens to be a former Ontario attorney-general can get a fair trial.
Ms. Henein isn't new to the game. She is best known for defending former NHL agent David Frost against sexual-exploitation charges stemming from his time as a junior-league coach, and currently represents Marcia Dooley in the appeal of a nearly-decade-old conviction for the beating death of her seven-year-old son.
Mr. Peck, who has been retained by the Ministry of the Attorney-General of Ontario as a special prosecutor, successfully defended Ajaib Singh Bagri on murder charges in the high-profile Air India trial. He has served as a special prosecutor on numerous cases, some of them involving high-profile politicians.
"He's the go-to guy for these types of cases in B.C.," said Mike Tammen, a Vancouver criminal lawyer and Mr. Peck's former legal partner. "It's only a matter of which side gets to him first."
But as the Crown begins to build its case against a former top legal player in the province, maintaining the appearance of objectivity is going to be a challenge, criminal lawyers and legal experts say.
"The authorities will have to work very hard to make sure that it's completely transparent," said Christopher Sherrin, a professor of criminal law at the University of Western Ontario and former part-time assistant Crown attorney. "They don't want it to seem like there's any favouritism."
Finding an unbiased prosecutor was the first challenge in preparing to try Mr. Bryant, who, as attorney-general, was the boss of most of the people currently working as Crown prosecutors in the province, said Phil Downes, a Toronto criminal lawyer and former counsel with the Crown Law Office.
Outsourcing is standard practice in cases involving lawyers, judges, politicians or high-ranking police officers to prevent the appearance of bias, he said.
But just as the Crown has hired an out-of-province prosecutor, experts say an outsider judge may also be needed.
At this point, it is unknown whether Mr. Bryant will choose to have his case heard in the Superior Court of Justice, where judges are federally appointed, or the Ontario Court of Justice, where Mr. Bryant appointed every judge confirmed on his watch.
Lawyers agreed that there is no chance the prosecution would allow the case to be tried by a judge Mr. Bryant approved.
Most of the court's judges were appointed before or after Mr. Bryant served and would have had "virtually no contact" with him, said Osgoode Hall Law School criminal law expert Allan Young, who also taught Mr. Bryant.
Still, he said, to avoid any appearance of bias, an out-of-province judge may be chosen.
Lawyers also wonder whether other factors might be at play.
Mr. Downes said some worry that police will be more favourable to Mr. Bryant in their investigation because, as attorney-general, he passed laws that police favoured, including a crackdown on street racing.
"They will need to be ultracareful in conducting a fair investigation," he said.
But with all of the efforts to ensure the appearance of impartiality, some also wonder whether officials will unconsciously prosecute more vigorously.
"They bend over the other way, they overcompensate," said veteran Toronto defence lawyer Michael Morse, who himself faced trial several years ago.
"I do not envy Mr. Bryant," he said.