dandyARCHIVE: Rule of Law

dandyARCHIVE:  Rule of Law

RE-printed in memory of Darcy Allan Sheppard

Essay by lawyer Rick Bernardi 

Illustrations by Elicser

Please note: This story was first published in the Spring of 2010 in our “spokes” issue. 

In 2002, when I was in my third year of law school, I had the opportunity to participate in an American Bar Association exchange program between eight U.S. law schools and eight law schools in the Balkans. My school, Lewis & Clark Law School, in Portland Oregon, was paired with the Faculty of Law in Nis, Serbia, and the Lewis & Clark professor who was coordinating the program was looking for two volunteers who would be willing to participate in the program, all expenses paid. Well, an untrammeled corner of Europe? All expenses paid?

That was one of the more convincing arguments I’d heard in law school, so I submitted my name, and when to my surprise I was selected, I accepted a slot in the exchange—although not without some trepidation. After all, we had just bombed Serbia three years earlier. It seemed virtually certain we would meet people who were still angry about the NATO bombing campaign—and in fact, we did encounter some anger. But mostly, we encountered a very gracious and friendly people who welcomed and befriended us far beyond what we imagined, or had any reason to expect.

Now, here’s the thing. The reason we were going to Serbia was to promote the rule of law—but my friend Andrew (who was also selected to participate) and I didn’t really know what that meant.

Here we were, on our way to help promote the rule of law in Serbia, and we had no idea what “the rule of law” is. At least, not in the sense that we could coherently explain it to somebody else.

As it turns out, we actually did know what “the rule of law” means—we just didn’t know it. In a nutshell, the rule of law means that a nation is governed by laws, rather than by the caprices of the powerful few. It means, among other things, that nobody, rich or poor, powerful or powerless, is above the law. It means that even the powerless can find justice under the law, and that even the powerful can be brought to justice. It’s an idea that is ingrained in Western society. It’s an idea that was ingrained in us, as American students of law.

This is what came to mind while I was pondering the case of Michael Bryant—Ontario’s former Attorney General, who stands accused following the death of Toronto bike courier Darcy Allan Sheppard. If any case is imbued with the rule of law, this must surely be the exemplar. For evidence, we can begin with the lives of the two central actors in this tragedy.

Darcy Allan Sheppard was Métis, the oldest of eight children born to a mother struggling with an alcohol addiction. At the age of six, he and his younger brother, four-years-old, were adopted by a foster family, after their mother’s problems with alcohol spiraled downward. “We just grew up with poverty, with nothing,” his younger brother observed from the confines of Stony Mountain Prison, near Winnipeg, where he is serving a sentence for drug trafficking. “We probably had one of the hardest lives growing up. A lot of foster homes. Broken-down families.” As a young man, Sheppard got into some trouble over some stolen checks. He was arrested, and after he was released on bail, he fled his hometown of Edmonton, never looking back. He settled in Toronto, where, following in his mother’s footsteps, he struggled with his own alcohol problems. He lived on Toronto’s streets for a while, but, an avid cyclist, he eventually made a new life for himself as a bike courier.

Michael Bryant, ten years Sheppard’s senior, grew up in British Columbia, a province away from Sheppard’s hardscrabble life in Alberta. In fact, it was worlds away from any life Darcy Allan Sheppard ever knew. Bryant’s father had been mayor of Esquimalt, in the Greater Victoria area, and in time, Michael Bryant too would answer the call of public service, even surpassing his father’s own achievements. But first, there was the matter of his education.

Darcy Allan Sheppard’s education came on the streets of Edmonton. Michael Bryant’s education took a somewhat different course, first at the University of British Columbia, where he earned his Bachelor’s and Master’s degrees, followed by an LL.B at Osgoode Hall Law School, and an LL.M, magna cum laude from Harvard Law School. A Fulbright Fellow, Bryant in short order clerked at the Supreme Court of Canada, then practiced law at prestigious firms, first in New York, and then London, England while also lecturing in law at King’s College at the University of London. Returning to Canada, he took a professorship at the University of Toronto, before his election to the Ontario Legislature in 1999. From there, it was a short step upward to Ontario Attorney General, and then a series of ministerships. But the position he really had his eye on was the Premiership. Everybody knew it, especially Ontario Premier Dalton McGuinty. With the seat already occupied however, Bryant decided to bide his time outside government; he resigned his ministry (by now, Economic Development) and took a position as CEO of Invest Toronto. Darcy Allan Sheppard continued to battle alcohol, fathering four children along the way: two in Alberta, and two in Ontario.

And then, suddenly, he seemed to be on the road to getting his life together. He stopped drinking. He began to make plans to see the five-year-old son he had never met. He reconciled with his fiancée. For Sheppard, this was as upward a life trajectory as Bryant’s. Maybe more so.

Back in Nis, walking the winter evening streets with my Serb friends, the occasional black European luxury car would drive by.

“That was mafia,” my Serb friend Vlada would say knowingly. “How can you tell?” we naively asked. “You can just tell.” In a country where gypsies still travel by cart, and Russian-made cars with two-stroke engines are still common, the hard men with their black leather jackets and their black Euro luxury cars must have been the tip-off. We would joke that they were “businessmen” on their way to a “business meeting,” where they would perhaps “negotiate.”

Nobody would report the staccato sounds of the “negotiations.” Later, a local “businessman” would hold court in his favorite “American” restaurant, his jacket draped over his shoulders, while we lowly students mocked his regal display under our breaths, simultaneously taking pains to avoid his attention. Not attracting a “businessman’s” attention was one way to avoid negotiations, and we were certainly in no position to negotiate. They were powerful, we were not, and we didn’t know anybody who was. That was the reality of life in Serbia. It was the antithesis of the rule of law, up close and personal.

Several years later, on a summer evening in Toronto, another powerful man was driving his black Euro luxury vehicle home from an evening of celebration with his wife. A Métis bike courier with a lifetime of problems was on the same road. Somewhere in the posh Bloor Street shopping district, their worlds collided.

Some believe the encounter began with a near collision, and when they came to a stoplight, they continued their confrontation.

According to what can be gleaned from certain eyewitness and video accounts, what we know is this: Darcy Allan Sheppard rode his bike alongside the black Saab stopped at the light, and then pulled in front of the Saab and stopped. As the light changed to green, Sheppard remained stopped. Bryant appears to have shouted,

“Get moving!” and sounded the horn, but this only provoked words from Sheppard, who remained defiantly stopped in front of Bryant’s black Saab.

And then, my review of the footage suggests: Bryant lost it.

He floored his gas pedal, plowing into the bike messenger blocking his path, out into the intersection, and down onto the street. Bryant then threw it in reverse, as Sheppard picked himself up off the street and got back on his feet. Just as quickly as he had thrown his gears into reverse, it appears that Bryant then slammed them into drive, and swerved around Sheppard to leave the scene. Sheppard gave chase.

Down the street, witnesses reported seeing a black Saab travelling at a high rate of speed, with a man holding onto the side of the car, his shoes sending up a trail of sparks as he struggled to hold on for dear life. And then, unbelievably, Bryant drove up onto the sidewalk, brushing the man up against trees, posts, fire hydrants and news boxes lining the street.

Sheppard was slammed into the side of a mail collection box, according to eyewitnesses and video surveillance, and crumpled to the ground. Bleeding heavily from his nose and mouth, Sheppard attempted to get up, but witnesses kept him still while they waited for an ambulance to arrive. As Darcy Allan Sheppard lay dying on Bloor, Michael Bryant pulled into the drive of a luxury hotel and finally stopped his car. Sheppard was taken by ambulance to hospital, where he soon succumbed to his injuries.

Much of what we know so far is based on the fact that the incident was captured by security cameras, and witnessed by numerous bystanders on the street. Both the raw and enhanced security camera video, as well as the eyewitness accounts of stunned bystanders, were later posted on YouTube.

Up until Sheppard lay dying in the wake of Bryant’s flight Saab, it was just a chance encounter between two strangers on the streets of Toronto. Everything that happened afterward touched on issues of the rule of law.

Consider, for example, my account of the violent encounter between Bryant and Sheppard. It is as factual an account as one can gather from the video and eyewitness evidence available. And yet, under the rule of law, Michael Bryant has rights, and is presumed innocent until proven guilty in a court of law. Under the law, Michael Bryant stands accused of criminal negligence causing death.

And under the law, Michael Bryant will have his day in court. We have yet to see whether he will be proven criminally responsible.

But under the law, Darcy Allan Sheppard will have his day in court too. Will one have justice? Will the other be brought to justice? Or if Michael Bryant is acquitted, will justice be his?

In the hours immediately following Sheppard’s death, Michael Bryant was taken into custody. By afternoon, he had been charged, and after calling his lawyer, was released on his own recognizance. He had shaved, and was wearing a fresh suit as he exited the Toronto police station and made a brief statement to the press. As veteran defence lawyer Edward Sapiano observed, “Anybody else would have been taken to bail court and forced to stand in the box, unshaven and disheveled.”

There’s more. When Bryant was arrested, police declined to test him for alcohol, flatly stating that he had not been drinking. But they also neglected to test Bryant for any other substances, and did not offer any explanations for that failure. They were not as neglectful when it came to Sheppard; he underwent the full battery of toxicology tests. In fact, the police were behaving as if they believed that it was Bryant who had died under Sheppard’s wheels.

A powerful man arrested for causing the death of a man who possessed only the power of his own legs and his own sense of dignity. Police declining to administer toxicology tests to the powerful man. Police conducting toxicology tests on the alleged victim of the powerful man. Following his arrest, a powerful man granted special privileges not available to less powerful men.

Which of these narratives are consistent with the rule of law, and which are not?

It was Bryant’s second call, after he called his lawyer, but before he was released, that raised eyebrows. Shortly after his release, it was revealed that he had retained the services of Navigator Ltd., a Toronto PR firm with a specialty in “CEO reputation building” and “crisis communications.” When the average Joe gets arrested, he hopes he can hire a lawyer. Bryant not only hired a lawyer, he hired one of the best. But of equal importance, he paid close attention to the story’s spin.

The next day, the story shifted from Bryant causing a man’s death, to a tidal wave of negative news stories about Sheppard: He drank. He was on the lam from a stolen checks charge. He had been homeless. He had fathered kids he never knew. He enjoyed loud parties. Soon, newspapers were openly speculating that Sheppard, that bad apple Sheppard, had so thoroughly frightened Bryant that he forgot his vaunted boxing skills and acted in self defence when he slammed Sheppard into a mailbox with his car. Well, they carefully steered away from any hint of violent imagery on Bryant’s part, but you get the idea.

In Serbia, it was all about who you know. If you want something done, you have to know somebody. Not like in our Western societies, where we have the rule of law. Not at all. Unless you’re a powerful man who’s just been accused of killing a nobody, and who you know is the best lawyer in Toronto, and the best PR firm too. And that PR firm is good to know, because they know all the right people at the news outlets, and they know how to get things done.

But the rule of law is important here, so, apart from the police investigation, no hint of impropriety can be allowed. Bryant will stand trial on charges of criminal negligence causing death, and dangerous operation of a motor vehicle causing death. Because Michael Bryant was at one time Ontario’s Attorney General, the case against him will be prosecuted by renowned Vancouver attorney Richard Peck. The case will not be handled by the powerful man’s friends and former colleagues.

Two men, one powerful, the other not, collided violently on a Toronto street. Their lives will intersect once again in a court of law, as one is brought to stand before justice and answer for the death of the other.

Will justice be served?

Nothing less than the rule of law is at stake.

This is a story from the dandyARCHIVE – it was originally published in the Spring of 2010. A lot has happened since then. And we know the answer to the last question posed in this essay: Bryant never went to trail. And now he’s written a book about the “28 Seconds” it took him to kill Al.

There will be a book launch at the Metro Toronto Reference Library on Yonge Street on Wednesday evening.

Please join us for a protest of that book launch on September 5 at 5 p.m.

 

 

 

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