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(Illustration by Peter Mitchell for The Globe and Mail)
(Illustration by Peter Mitchell for The Globe and Mail)

From Globe T.O.

How to defend Michael Bryant Add to ...

A YouTube video depicting Michael Bryant's fatal clash with a Toronto bicycle courier this summer is undeniably dramatic, yet murky and difficult to fathom - much like the criminal case against Ontario's former attorney-general.

Caught by a distant surveillance camera, Darcy Allan Sheppard pedals into view and cuts in front of Mr. Bryant's convertible at a stoplight. The two apparently exchange words, and Mr. Bryant quickly accelerates away.

Like the famous Abraham Zapruder film of President John Kennedy's 1963 assassination, the grainy video is at once ominous and teasing. It gives a hint of what happened in the seconds before Mr. Sheppard was allegedly crushed against a mailbox and Mr. Bryant commenced his forced march through the justice system that he once ran.

With the Crown and defence quietly preparing for battle, speculating about the upcoming trial - which could go ahead in late 2010 - has become a popular parlour game amongst seasoned criminal lawyers.

Will fingerprints or blood spatter found in Mr. Bryant's car crack the case wide open? Will a judge or jury subconsciously favour a charismatic politician over a grubby bike courier? Will psychiatric experts testify what was in Mr. Bryant's mind - murderous rage or sheer panic - when he tore across Bloor Street with Mr. Sheppard allegedly cleaving to the side of his Saab?

Based on the available evidence, many believe that the scales of justice tilt in Mr. Bryant's favour.

"It is going to come down to one or two key pieces of fact - probably things that nobody could see before - that will jump out and become the turning point," said criminal lawyer Robert Rotenberg.

"I suspect the key thing is going to be what the cyclist said or did in those first few seconds," said Mr. Rotenberg, also the author of the crime novel Old City Hall . "If he said or did something that could justify what happened … then I think Bryant is almost home free."

One thing is sure. With a top B.C. lawyer - Richard Peck - running the prosecution, and a young star, Marie Henein, anchoring the defence team, the legal community expects nothing less than tactical brilliance. The Crown needs to prove that Mr. Bryant displayed "disproportionate force and extreme road rage," Toronto defence counsel Steven Skurka said. "But the risk is being seen as needlessly prosecuting an innocent man."

Mr. Skurka reasoned that the defence has the upper hand, since it need only show that Mr. Bryant was in mortal fear for his life: "For the defence, the daunting pressure is to lose a monumental case that surely deserved to be won," he said.

Eyewitnesses who saw the tragedy unfold will likely play a modest role in the trial, since perceptions are often unreliable and memories are inherently faulty. Civilian witnesses are notoriously bad on things like speed, time and distance, many lawyers believe.

Forensic evidence, on the other hand, is the evidentiary gold standard. Accident reconstruction experts, for example, can use skid marks and vehicle impressions left on the mailbox and tree to show the speed and path of Mr. Bryant's car. Their findings may shed valuable light on whether or not Mr. Bryant was in control of the vehicle.

Most important, fingerprint experts will try to pinpoint every place Mr. Sheppard touched on the car. Should it turn out that he gripped the steering wheel - whether in panic or in fury - the defence stands a strong chance of persuading a jury that Mr. Sheppard inadvertently steered himself to his own death.

"The closer you get prints on the inside of the car, the more the pendulum of self-defence swings in Michael Bryant's favour," Mr. Skurka said.

Before a trial can take place at all, however, Mr. Peck must first assess whether there is a "reasonable prospect" of convicting Mr. Bryant based on the evidence. Since Mr. Bryant can testify without fear of contradiction from Mr. Sheppard, Mr. Peck may well see little chance of a conviction.

Should the case pass that hurdle, Mr. Bryant will have the choice of being tried by a judge or jury. Defence counsel are traditionally wary of juries in cases where the victims may evoke particular sympathy. On the other hand, Mr. Bryant might have an emotive edge, with his account of being set upon while driving home from a quiet dinner with his wife to celebrate their anniversary.

Scott Hutchison, a former prosecutor-turned-defence-lawyer, said that the Crown will try to show that Mr. Bryant had control over his car.

He will also try to show that Mr. Bryant did not genuinely fear for his life, and that his actions amounted to a "marked departure" from those of a reasonable, prudent driver.

There will be few signposts to direct them.

"The Highway Traffic Act doesn't say what you are expected to do when you have a belligerent, possibly impaired person confronting you on the road, trying to get into your convertible," Mr. Hutchison said.

The Crown could obtain a conviction either by proving that Mr. Bryant was out to punish Mr. Sheppard, or that, while he was genuinely afraid, he ought to have sought help or tried to calm his assailant.

"Even an angry person is allowed to escape another angry person," Mr. Hutchison said.

"What really matters is whether or not the things that you did are inconsistent with what a reasonable and prudent driver would do."

As the trial progresses, Ms. Henein will grasp at every opportunity to induce sympathy for Mr. Bryant. She is sure to make much of the fact that Mr. Bryant was driving an open-topped car, leaving he and his wife particularly vulnerable to a man who was allegedly in a state of intoxication.

The defence will also try to make the case that, as a celebrity, he had particular cause to be wary. "Public figures legitimately have concerns about their personal safety," Mr. Hutchison observed. "You have a guy in a rage, hanging onto your car and possibly your steering wheel," he said.

"You have approximately zero seconds to figure out what you are going to do. If you are in a car and somebody hangs onto you, the only way to run away is to push the pedal - which you do automatically because it's as natural as breathing. It's tragic, but it is not a crime."

Both Crown and defence will probe the pasts of the two chief protagonists, using Mr. Bryant's sterling record and Mr. Sheppard's occasional run-ins with police to paint a portrait of how each would logically have acted.

"It's not character-assassination time," Mr. Hutchison said. "It will not be about whether the victim paid his child support or uses bad language, or what his opinion about racial minorities might be.

"This isn't about blaming the victim. It is about making sure that you don't blame the person who turned out alive, just because they happen to be alive."

Should the trial go badly for Mr. Bryant, however, his greatest loss is likely to be to reputation and career - not his liberty.

Mr. Skurka said that since Mr. Bryant had not been drinking alcohol that night, "it is a contest of whether he would get a conditional sentence" - usually house arrest or some other conditions that involve no actual time in custody - "or reformatory time," which is typically under two years, and is served in a provincial jail.

Mr. Hutchison is doubtful that Mr. Bryant can avoid jail: "In cases of criminal negligence and dangerous driving causing death, it is pretty consistently said that you have to have a significant sentence," he said. "It is not the sort of thing that turns into some kind of conditional sentence."

Mr. Rotenberg was ambivalent about what sentence Mr. Bryant might get, but he emphasized that the former attorney-general is someone who would learn nothing from a stint in jail.

"Even in the worst interpretation, he overreacted in a situation with his wife in the car," Mr. Rotenberg said.

"There was nothing deliberate; no criminal intent.

"And he is never going to commit another crime in his life. Why would you have to put a guy like that in jail?"

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