Sometimes The Dragon Wins

Back when I used to shadow Homicide Squads for a TV show, there were two items you found pinned to every squad room bulletin board. One was a cartoon, so over photocopied it was barely legible, depicting a half swallowed frog strangling the stork that was eating him under the slogan "Don't Ever Give Up".

It was a reminder to every exasperated/frustrated detective that if they ever lost the will to fight for their victims, the job would eat them alive.

The second item was far more poignant. It was four words: "Sometimes The Dragon Wins".

As in -- sometimes there is no happy ending. Sometimes good does not conquer.

Yesterday, in Toronto, the Dragon won.

Last August, on a night as sweltering as the current heat wave enveloping this city, a terrible tragedy played out on our streets. In a traffic congested town all too familiar with animosity between cars and drivers and those riding bicycles, a collision between those two "cultures" ended in the death of a bike courier named Darcy Allan Sheppard under the wheels of a stylish sports car driven by the province's former Attorney General, Michael Bryant.

Although eye witnesses differed on details and the street surveillance cameras caught only blurred, silent portions of the action, the basic story was that a confrontation between the two (as Bryant drove his wife home from celebrating their anniversary) culminated in Sheppard hanging onto Bryant's Saab convertible as the car sped along the "Mink Mile" of Bloor Street, the city's most exclusive shopping district.

Again, depending on which bystanders you believe, Sheppard gained control of Bryant's steering wheel or Bryant attempted to shake him off. Either way, Sheppard struck a fire hydrant, lost his grip and hit his head on the curb before the rear wheels of the car went over him.

Bryant drove a further block to a local high end hotel, dialed 911 and turned himself in.

It was a shocking incident that polarized the city over questions of class and culture and how the competing agendas of drivers and cyclists had come to this. Bryant was charged. Vigils were held by cyclists. Newspapers and talk radio debated whether Bryant's social status or Sheppard's outlaw reputation would make a difference to the jury and the verdicts.

 

It never came to that. Our own version of "Bonfire of the Vanities" never got to the courtroom scenes.

Yesterday, a special prosecutor brought in from Vancouver to try the case dropped all charges against Bryant insisting that there was "no reasonable prospect of conviction".

And maybe that's true.

I'm a driver in Toronto and I don't have a lot of time for most of the people I encounter on bicycles. When I was a kid in Regina, your bike needed a license so people could report any missteps you made. You also needed to be equipped with a light, a horn or bell and rear reflectors, making you easier to see and in a better position to warn those who didn't that you were there.

None of those things are required in Toronto, partly due an aggressive cycling lobby. So, like most people who drive in the city, I've had my share of close calls with bikers and been forced to watch them fly through stop signs or zip the wrong way down a one-way street while I have to obey the traffic rules.

Bike couriers are among the worst offenders. Guys trying to do an impossible job to be sure. But also a tribe that includes a few with little use for the conventions of society. What happens on the pavement aside, you don't have to spend much time downtown without being yelled at for being in their way on the sidewalk or almost mashed as they push their bikes into an elevator on their way to a delivery.

As early stories came out that Sheppard had been drunk and police had asked him to leave his girlfriend's apartment earlier in the evening, more and more people wondered how they would have reacted had they encountered him while they were vulnerable in an open car with their wife.

It certainly would have been difficult to find a jury who hadn't heard about or formed a personal opinion about the case.

That said, as the special prosecutor detailed his reasons for dropping the charges, it was hard to feel like justice was being served, or that we're all still somehow equal in the eyes of the law.

I don't know why a "special prosecutor" had to be brought in to handle the case, although it makes sense that you can't have a local Crown prosecuting his former boss without somebody questioning the possibility of impropriety. But when this special prosecutor detailed his reasons for dropping charges, I couldn't help feeling a greater impropriety was taking place with somebody in charge who would never need to face much local scrutiny or accountability.

Instead of making sure Michael Bryant didn't get preferential treatment, what was revealed yesterday suggested that's exactly what he received.

Prosecutors and Bryant's legal team seemed to share an inordinate amount of information and a lot of time and money was spent investigating the character of the deceased while hard forensic evidence (or the fact it had never been collected) seemed of lesser importance. It was as if both sides were trying the case in private, searching for a path to make it all go away. 

They quickly found it in the personality of Darcy Allan Sheppard.

Shortly after the incident, other drivers recognizing him from photographs came forward to describe being similarly attacked. With their assailant unable to argue the charges, and since none of them ever made a formal complaint to the police prior to his death, there's no way of proving their attacker was actually Darcy Sheppard, or if he was even at the locations of the attacks at the times they occurred.

A lawyer with a firm whose offices overlook the downtown street corner where bike couriers gather snapped several pictures of Sheppard allegedly attacking a driver who was on the wrong side of the street (photo above). But like those drivers, he didn't do anything with the photos until after Sheppard was dead.

Now, doesn't that strike you as odd? Why claim what you photographed is an altercation between a courier and a motorist, even though you couldn't hear what was said, don't know what precipitated it or even if it was a guy just horsing around. How is that evidence of anything?

What's more, if you're a lawyer in that neighborhood, it's quite possible the self same miscreant courier picks up or drops off packages at your office from time to time. If you've got a record of somebody that belligerent, aren't you doing something to make sure he doesn't come around your place of business -- like finding out who he is and maybe calling his boss?

Yet according to interviews with Sheppard's employers, everybody liked him and nobody ever complained about him.

Still, this was enough for the special prosecutor to ignore standard legal practice which does not allow you to introduce evidence of past behavior as proof that the guy "was a shit and deserved what he got".  Yet he did so by quoting an obscure 30 year old case where exactly that was allowed because the actions were "highly distinctive or unique as to carry a signature".

Funny how that's never been allowed in trials of gang shootings. But anyway…

Verifiable beyond a reasonable doubt or not, the testimony of these individuals was accepted as enough for the prosecutor to conclude that Darcy Sheppard "was the aggressor in the confrontation that resulted in his death".

But that ignores the physical evidence available -- or which was never obtained.

Here's surveillance video of the accident.

The first segment shows Bryant's 1995 Saab convertible waiting at a red light as Sheppard pulls into the lane in front of him. Bryant claims that at this point his car stalled and in starting it, it jumped ahead touching Sheppard's rear tire. So far, no harm, no foul -- although Bryant has struck a cyclist.

He claims the car stalled a second time and when the car restarted it jumped ahead again -- this time for NINE METERS. That's 27 feet. About 2 and a half car lengths.

Now this strikes me as odd for two reasons. Y'see, I used to drive a 1996 Saab convertible, virtually the same car Bryant was driving. And on the rare occasions when it stalled, two things happened:

1. The Headlights flickered and dimmed.

2. You can't start a Standard transmission car without the clutch engaged or the shift in neutral, both of which prevent it from moving forward.

But in the video, Bryant's headlights don't dim and the forward motion appears to be the result of ACCELERATION.

So did Darcy Sheppard initiate the confrontation, or did something else happen?

Bryant stated that he witnessed Sheppard tossing things on the road and interfering with other traffic. Then this guy was in front of him. Any chance there was a "love tap" to teach him a lesson and maybe a second one after something was said to really make the point?

We'll never know that either, because Michael Bryant will never be cross-examined under oath.

And nobody said much yesterday about his personality beyond what a fine, upstanding member of society he is.

Nobody mentioned that he was known for his "pugnacious streak" or had been an amateur boxer. Nobody mentioned how tough and outspoken he'd always been as a politician, pushing a ban on pitbulls, championing a law to seize the cars of street racers and not only crush them but "crush the parts". Not the sort of guy you'd expect to back down from a scrap or suddenly panic.

What really made him cover those initial 27 feet shown in the second part of the video, ending up with Sheppard sprawled across and then tumbling from his hood?

Was he drunk? Don't know, despite an accident in which there had been a loss of life, the police never administered a breathalyzer test or took a blood sample. In fact, they never even took a formal statement from him.

Was he telling Darcy Sheppard, as he had made clear to many political opponents, that he wasn't a guy you fucked with?

If he did, the moment the cyclist was on his hood, he had to know he'd gone too far. I would have and I'm not a lawyer. But his next decision was clearly to leave the scene of the accident -- another criminal act. And the video shows that he made that decision before Sheppard had even risen to his feet.

Before the biker is any kind of a threat, Bryant is reversing his car and high-tailing it out of there.

Sheppard made the fatal mistake of grabbing the car. To stop the man who attacked him from escaping? To exact revenge for being rammed? To be reimbursed for his crushed bike? We'll never know.

What is clear is that Bryant then travelled the length of a football field with a man hanging onto his car. According to the forensic report, the vehicle never exceeded an AVERAGE speed of 34 Kph.

Notice that interesting attempt to sell a low speed incident there?

Average speed 34 Kph. Which since we started at zero means we had to get to 68 Kph in order to "average" 34.

0-68 IN 100 METERS. That's a man standing on the accelerator of a 1995 Saab, if his ran anything like my own in the summer of 2009.

Witnesses you can find in other Youtube clips describe Sheppard as "hanging on for dear life". Was he trying to get control of the car by this point or simply desperate for a better hand hold. Again we'll never know.

All that is inarguable is that whatever was happening with the steering wheel, the guy with his foot on the gas was speeding up, and making Sheppard's situation more precarious.

At what point did he know that it was more dangerous to let go than to keep hanging on?

But the special prosecutor dismissed what the witnesses said they saw anyway, calling them "inconsistent".

This guy is some kind of top notch criminal lawyer and he doesn't know what any cop, any lawyer or anybody who has watched more than one trial can tell you with absolute certainty -- witnesses rarely tell the exact same story.

And so, Michael Bryant is a free man with no criminal record. And maybe that's a case of "But for the grace of God…" and maybe it's a guy with friends in high places looking after him.

Sometimes there is not even a pretence of Justice.

Sometimes the Dragon wins without even trying.

Or maybe it's becoming the Dragon's time, a time when we shouldn't look for him to lose anymore.

I've just finished reading Michael Lewis' brilliant book, "The Big Short" about the subprime mortgage trashing of our economy that still hasn't seen anybody charged two years after it happened.

Tonight's news features the Canadian government spending $1 Billion for security alone at next month's G20 conference. Something the city of London accomplished for 1% of that cost a mere 2 years ago.

Included in that expense are tens of millions to make sure the food consumed by the visiting dignitaries is "safe".

Funny how there's money for that and none for the hundreds of thousands of Aboriginal Canadians who've been boiling their drinking water for my entire lifetime, nor any for the hundreds of thousands depending on food banks ever since some of those same dignitaries tanked their livelihoods.

"Connected Guy Found Not Guilty" shouldn't be a headline that surprises anybody these days, least of all me.

What's different here is that even the pretense of fairness is gone. Nobody even tries to sustain the myth that we're all equal any more.

You always knew there was an "us" and a privileged "them". But you could hope there was some balance or at least an occasional reckoning.

There isn't anymore.

It's their world now. We're just allowed to live here.

For now.

UPDATE:

Not 48 hours after the special prosecutor ruled there was "no reasonable prospect for conviction" in the Michael Bryant case, the veracity of two of the six motorist statements used to establish a negative pattern of behavior for Darcy Allan Sheppard have been called into question.

And as some have claimed (including commenters here) that such introduction of past behavior is not as rare in our courts as it might appear to us neophytes in the world of jurisprudence, nobody has offered an explanation as to why this tenet of the law never seems to come up with anything approaching regularity in the trials of gang members, drug dealers or sex offenders.

But for more on the legal aspect of the decision, by a mind far more adept at dissecting how the justice system works in Ontario than I'll ever be, I urge you to read what is posted here.

It's hard to read this content alongside the editorials rationalizing the dropping of charges in this weekend's Toronto newspapers and not come away with the tragic feeling that our courts are not the place where any of us should expect to find justice nor our press not in servitude to something other than the truth.

My apologies if accessing the material makes you feel as incredibly sad as it did me.

But maybe that's where change begins…

Once the Dragon has been revealed, he's suddenly less a mythical figure than a common reptile unable to actually breathe fire and with scales less impervious to attack.

FURTHER UPDATE:

The more you research the dropping of charges against Michael Bryant, the more you come to believe that the special prosecutor and the Ontario justice system cornered the market on white wash and didn't use it sparingly.

And on top of that -- the more you wonder why not one of Toronto's media outlets is willing to question or further investigate what went on.

Here are some things you might find interesting…

Apparently, the Canadian Press filed a "freedom of information" request regarding the special prosecutor that the Province of Ontario declined on the grounds that it was "related to the prosecution". Now that the prosecution is over, it'll be interesting to see if CP or anyone else re-files that request. 

I finally found a copy of the "Executive Summary" of the case here. One of its stunning revelations is just how tenuous the "prior actions of the deceased" which were used to dismiss the charges really are. We were told that "Mr. Sheppard had at least six altercations with other motorists" prior to his death.

While it doesn't appear that charges were filed against the deceased in any of the incidents nor any complaints made to the police, the statements were accepted as accurate and reliable. Yet, they include an incident dated only as "several years prior" involving a 76 year old female driver who did not ID Sheppard until after his death and another in which the complainant thought her attacker was Sheppard but "was not entirely certain".

In another portion of the summary, the Special prosecutor states that "forensic evidence has demonstrated that the Saab (Bryant's car) did not rub against the curb or mount the curb at any time" while discounting testimony by witnesses that the driver was trying to use street furniture to knock Sheppard off his car.

Nowhere does he explain how then, Bryant's car sustained the scrapes and dents visible on the night in question.

Curiouser and curiouser…