Friday 11 September 2009

Is the former attorney general of Ontario really guilty of the death of the bicyclist?

The trial of Michael Bryant will truly be one of the most interesting trials to be heard in Canada or elsewhere for that matter. What will be at issue is; how far can someone go to protect himself and anyone with him if he fears for their lives?

Background of the event

On August 31, 2009 at around 9:45 pm, witnesses on Bloor Street, in Toronto, witnessed a heated confrontation between Michael Bryant, the driver of a black Saab convertible and a cyclist that began near Bloor and Bay streets in downtown Toronto. So far, I haven’t read anything in the newspapers explaining what caused the confrontation but it could have been a minor collision between the car and bicycle at or near the intersection of Bay and Bloor streets.

According to witnesses, the cyclist, Darcy Sheppard, 33, was seen hanging onto the driver’s side of the car when the car suddenly squealed its tires and then drove further west on Bloor Street at a high rate of speed. From that observation, I have presumed that the car was initially stopped while the two men spoke to one another just beyond the intersection. I have no idea what was said between the two.

Witnesses said the cyclist still appeared to be hanging on to the driver's door, steering wheel and/or Bryant’s neck while the motorist swerved towards the opposite side of Bloor Street and then mounting the curb trying to knock Sheppard off. He finally was knocked off when he struck a mailbox. According to witnesses, he fell under the left rear wheel of the car. They later said that they saw blood running out of Sheppard’s nose. He was rushed to the hospital but died shortly after he arrived.

Meanwhile Bryant had driven his car to the next intersection and then turned right on Avenue Road and a less than a block later; he pulled into the parking lot of a hotel. Then he and his wife each called the police. I presumed it was from their cell phones.

The charges laid against Bryant

Bryant was questioned by the police and arrested. He was charged with ‘criminal negligence causing death’ and also with ‘dangerous operation of a motor vehicle causing death’. He was held overnight in police cells and then released on his own recognizance.

He wasn’t charged with ‘fail to remain’, an offence that is contrary to section 252(1) of the Canadian Criminal Code because for the crown (prosecutor) to prove that he failed to remain at the scene of the accident, he has to have evidence that Bryant left the scene in order to escape civil or criminal liability and that wasn’t the reason why he didn’t hang around the scene where Sheppard fell to the ground. The fact is that within a minute or so, both he and his wife both called the police as soon as it was possible to do so. He knew that it is against the law to make such a call while he was driving his car on the street. That’s why he drove his car into the parking lot of the nearby hotel to make the calls.

Subsection 2 implies that if a driver of a vehicle doesn’t stop to offer assistance to anyone that is injured, it is evidence that he is attempting to escape civil or criminal liability. That wouldn’t apply in Bryant’s case since he phoned the police and gave them his name and the particulars of his role in the accident within minutes of the event.

However, he could have been charged under Ontario’s Highway Traffic Act with the offence of not remaining at the scene of the accident, an offence that is contrary to section 200 of that Act. That section states that there is a duty placed upon the driver of a vehicle that is involved with a traffic accident to remain at the scene of the accident so that the driver can render aid to the person injured. This Bryant did not do. He might have felt that offering assistance to Sheppard wouldn’t be necessary since there were construction men in the immediate area who could offer such assistance. Unfortunately, relying on a witness to offer assistance instead of stopping to do it yourself is not really a defence to the charge.

Further, he did not remain behind so that anyone, be another motorist or any other witness can ask him for particulars re his name and insurance details etc. I should add however, I don’t think that any witness has the right to ask where the motorist lives or particulars as to his insurance. That privilege is left to the injured person and/or the police.

I can only presume that the police were aware that since Bryant phoned the police immediately after the event, it was sufficient to meet the criteria about remaining behind to give particulars of himself etc.

Why the police didn’t charge him under the Highway Traffic Act with respect to not remaining behind to offer assistance to Sheppard is beyond my understanding.

The law with respect to the charges against Bryant

Section 220 of the Criminal Code states that it is an offence to cause the death of a person by criminal negligence and that crime is punishable by life in prison, not that such punishment as severe as that is awarded for the most part.

For a conviction, the crown must prove that Bryant breached his obligation to drive his car carefully and that in not driving his car carefully, he acted in a wanton and negligent manner.

The word, ‘wanton’ is used to describe an act that is reckless, foolhardy and the accused person had a disregard for the rights and safety of others.

That can only be determined by the actions of the person accused of acting in such a manner. The question that will be decided by the trial judge is whether or not Bryan acted in a manner that is both negligent and with a disregard for the safety of Sheppard and others on the street.

The charge of operating a vehicle in a dangerous manner and causes the death of someone comes under section 249(1) of the Criminal Code.

Anyone who drives his vehicle in a manner that is dangerous to the public; be it consist of pedestrians or other road users, having regard to the circumstances, including the nature, condition and use of the place where the accident takes place, is guilty of ‘dangerous operation of a motor vehicle causing death’. The punishment for that offence is only five years at most.

Simply because someone dies in a car accident doesn’t necessarily mean that the driver was operating his car dangerously. He would be driving in that manner however if he wasn’t paying attention to his driving, such as texting or reading a map while he was driving his car. Yes. Some people really do that. A woman with her daughter in her car with her was texting while driving her car and both were killed in the accident. If she survived, she would have been charged with driving dangerously causing death.

I believe that the punishment is less severe than the one given for driving criminally negligently because driving dangerously involves being really stupid while driving and although such driving is deserving of punishment, the manner of driving is more foolishness rather than criminal.

What really happened on Bloor Street?

It is unfortunate that we haven’t heard from Bryant but that is no doubt because his lawyer has told him to say nothing. That is good advice but of course, it doesn’t stop the rumour mill from operating.

According to one story that is floating about, the cyclist tried to get the Saab to stop. Another story is that the cyclist grabbed a hold of the steering wheel which may explain why the car swerved into the eastbound lanes and eventually mounting the curb and slamming into a mailbox.

If that is what happened, then Bryant did no wrong. If there were any witnesses who saw Sheppard holding onto the steering wheel, then this will assist Bryant but I am forced to ask this rhetorical question; if Sheppard had grabbed the steering wheel and caused the car to serve across the street, then why didn’t Bryant immediately jam on his brakes?

Another rumour is that Sheppard had actually grabbed Bryant by his neck. If Bryant was trying to shake him off the car by running close to the mail box on the other side of the street in hopes that if Sheppard struck the mailbox, he would be forcibly removed from the car, it would be an effective way to do it.

If this was his motive, it would be a legitimate maneuver providing that he was in fear for his life and that of his wife. If on the other hand, he did it simply to get Sheppard away from his car and at the same time had no reason to fear for his safety and that of his wife, well, Bryant is in serious trouble because the proper thing do to would be to stop the car and ask the nearby construction workers to come to his aid.

Of course, he could never really be sure that the workers would actually come to his aid. Many people have been killed in the presence of gawkers.

Bryant would have had a legitimate reason for taking the steps he did to remove Sheppard from his car if Sheppard had threatened him. Many years ago, a driver rear-ended my car and then ran to my driver’s door trying to get it open and all the time yelling, “GET THE HELL OUT OF THE CAR. I AM GOING TO KILL YOU!” I immediately drove away and a month later, the police charged me with failing to remain. The driver admitted at court that he had threatened me and when the judge heard that admission; he dismissed the charge against me and said at the same time, “I would have driven away also if I was threatened in that manner.”

Did Bryant really have a good reason to fear Sheppard? It is quite possible that he did. Sheppard had an alcohol problem and had previous run-ins with the police. Further, shortly before he had the run-in with Bryant, he was ordered by the police to leave his girlfriend’s home since he was annoying her. The police officer that ordered him said later that he smelled alcohol on Sheppard’s breath.

A man who is smelling of alcohol and is antagonistic at the same time is a man to fear; especially if he threatens you.

One thing Bryant has definitely going for him is that under Canadian law (like other laws around the world) the prosecutor must prove mens rea (criminal intent.

Considering the intensity of the situation during that brief period of time, all Bryant has to establish in the court’s mind is that during that brief moment in his life, he was in a state of panic and if he can convince the court of that, then the court will be satisfied that he had no criminal intention of doing anything that would harm Sheppard, whether purposely or by negligence, criminal or otherwise.

Bryant is going to have that experience that millions of other persons around the world experience; the long agonizing apprehension he will have to endure while he waits for his trial. If he is fortunate, unlike many, he will get a fair trial by the judge selected by the province that will obviously be chosen from the slate of judges outside of Ontario.

As I said at the beginning of this essay, this is going to be a very interesting trial to follow.

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