Michael Bryant and the Unfortunate but Necessary Compromises our Justice System Must Make

Today, news has come that the Crown has dropped charges against Michael Bryant, the former Attorney General for the province of Ontario, relating to the death of Darcy Allen Sheppard. The charge stems from an incident which took place nine months ago, wherein an altercation between Bryant, driving his Saab convertible, and Sheppard, a cyclist, resulted in the latter’s death. CBC News offers a summary of the decision by prosecutor Richard Peck, which partly reads as follows:

Video of the incident shows Sheppard leaned into the driver side of Bryant’s car near the steering wheel, and was holding onto the car as it moved forward, veering to the wrong side of the road.

Peck’s report said Sheppard’s left torso hit a fire hydrant located close to the south curb in area of 131 Bloor St. West. The blow dislodged him from Bryant’s car, and caused him to strike his head either on the curb or a raised portion of the roadway.

“The impact was fatal,” according to Peck’s executive summary.

The decision to drop the charges against Bryant will no doubt prove to be incredibly divisive. Right from the day the incident occurred, heated debate has spring up over questions of cyclist safety and the issue of more and better bicycle lanes. This debate continued to rage today when the charges were dropped, evidenced by reports of bike couriers gathered outside Bryant’s press conference today to express their anger at the decision. These issues haven’t gone away and still matter, and as a cyclist myself I am certainly sympathetic to those who continue to emphasize this issue as a matter for public debate and attention from legislators. The reasons for dropping the charges and the Bryant case as a whole, however, ought not to stand as pivotal to this debate nor should today’s decision be seen as a vindication of either side of the debate. The decision does not settle the debate in favour of drivers or cyclists or prove that safety measures for cyclists in Toronto are adequate  – this is far from the case – but rather reflects the unique circumstances of this isolated incident and the compromises that our justice system must make in the face of such circumstances. It certainly doesn’t sit well with many to see the well connected politico walk free when a young man has lost his life, but given the makeup of our criminal justice system and the circumstances at hand, it was the right decision. Furthermore, it is the type of decision necessary to preserve the capacity of our justice system to punish criminal intent as well as action and to make exceptions in unique cases.

First and foremost, when subject to the criteria established the the landmark Supreme Court decision R v. Creighton, the case against Bryant doesn’t hold up despite the incident’s unfortunate outcome. The decision, written by then Justice McLachlin, establishes explicit criteria for evaluating the blameworthiness of manslaughter charges primarily by stating that the accused must have deviated from the “standard care of a reasonable person” in their actions and whether or not there they could have foreseen the harm in their actions. Essentially, given the circumstances of an incident, it must be examined as to whether or not the accused behaved reasonably and knew that harm would have resulted from their actions, which in turn establishes mens rea, which entails knowing that one’s behaviour was deviant and potentially harmful under the circumstances at hand. Creighton fleshes this principle out in full, stating,

The objective test for criminal fault, which requires a “marked departure” from the standard of the reasonable person, should not be extended to incorporate a standard of care which varies with the background and predisposition of each accused.  Considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception:  incapacity to appreciate the nature of the risk which the activity in question entails.  The principle that the criminal law will not convict the morally innocent does not require consideration of personal factors short of incapacity.  The criminal law, while requiring mental fault as an element of a conviction, has steadfastly rejected the idea that a person’s personal characteristics can (short of incapacity) excuse the person from meeting the standard of conduct imposed by the law.  The fundamental premises upon which the criminal law rests mandate that personal characteristics not directly relevant to an element of the offence serve as excuses only at the point where they establish incapacity, whether the inability to appreciate the nature and quality of one’s conduct in the context of intentional crimes, or the incapacity to appreciate the risk involved in one’s conduct in the context of crimes of manslaughter or penal negligence.

Applying these principles to Bryant’s case, one must ask whether or not the accused acted with the specific intent of causing Sheppard’s death and knew that his actions would lead to such disastrous consequences. Given the surveilance video examined by the court and the official statement by Peck, this doesn’t seem to be the case. When Sheppard reached in to Bryant’s car and took hold of the steering wheel, it was perfectly reasonable for Bryant to feel that he was being threatened and that the nature of the threat was unclear. According to Peck’s assessment of the video at CBC (link provided above), “…Mr. Bryant had been attacked by a man who unfortunately was in a rage,” Peck later said outside court. “In such circumstances, he was legally justified in attempting to get away. The case could not be proved.” Not knowing the kind of danger that one is in when as such incidents unfold, it becomes difficult to act in a calm and pragmatic manner, even for a “reasonable person.” Bryant, not having any time to think, can’t really be held as 100% blameworthy despite the outcome of his actions. Also, given that Bryant did not show any malice or intent to harm at any point, establishing mens rea becomes difficult.

Indeed, how would one expect an individual like Bryant or any of us (i.e. someone suddenly caught in the midst of a confrontation with an enraged individual who is capable of all sorts of harmful action) react? Taken in context, Bryant is simply a civilian with no training to subdue such situations or individuals like Sheppard. Peter Kuitenbrouwer in the National Post reiterates that Bryant simply wound up in the wrong place at the wrong time. This is not to excuse Bryant’s actions or to discount the fact that he could have acted differently, but rather to acknowledge that his actions should not establish him as a felon or criminal. Kuitenbrouwer states,

Mr. Sheppard was drunk, and appears to have acted quite aggressively. Mr. Bryant was nervous, and appears to have hit the gas to shake his assailant. What would you have done in that situation? If Mr. Bryant were a soldier or a cop, we could expect him to have reacted with more sang-froid. But he is neither. He is a lawyer, and a former attorney-general. He does not come out of this as a hero, but neither should he come out as a felon.

This tragic outcome of this incident is still subject to the criteria established in cases like Creighton, and in light of these criteria Mr. Bryant cannot clearly be established as having wilfully committed manslaughter or acted negligently, at least according to the Crown and this article in the Star, which states that Bryant was not drinking on the evening of the incident. In the midst of confusion, he could not have properly evaluated what might have resulted from his actions as he struggled to escape attack. Given these circumstances, Bryant acted exactly how we might expect someone in his circumstances to act.

The outcome of the altercation was due mainly to chance and it is not in accordance with our criminal law system to punish based on chance. This idea is perhaps best articulated by David Lewis in what he calls “the problem of moral luck.” In Lewis’ example of Dee and Dum, both men try equally hard, out of malice, to murder an enemy via gunshot. In the final analysis, Dee is successful, whereas Dum, due to some unforeseen circumstance, fails. Dee is subsequently sentenced to death and Dum gets a short prison sentence. Lewis asserts that there is something peculiar about such a practice of sentencing given that both men are equally dangerous, have engaged in conduct which we wish to deter, and both are the type of men against whom others would wish to defend themselves. In addition, the author notes, “[m]aybe Dee’s act was worse than Dum’s act just because of Dee’s success, but it is not the act which suffers punishment, it is the agent.”

In Bryant’s case, the element of luck is plain, and in contrast with the aforementioned Dee and Dum, there is no intent on the part of the accused. The only difference between Bryant and the rest of us is a matter of bad luck which in turn yielded a tragedy. I have no illusions that had the accused not been a powerful politician but rather someone of a lower social status, the outcome might have been different. Furthermore, we do not punish luck and chance outcomes, but intent and clear instances of negligence measured against accepted standards. The  official editorial released by the Globe and Mail perhaps says it best, asserting that while the decision was the right one, similar circumstnaces often yield different and unjust outcomes. The editorial states,

Mr. Bryant, though he was an Everyman, could afford top legal representation and other experts. If only every Everyman were in the same position, there would be fewer miscarriages of justice. But the important point is that the poisoned arrow of wrongful accusation no longer points at an innocent man.

In this particular instance, our justice system prevailed and Michael Bryant will be given a second chance, but this is not always this case and this is the real flaw in the system. Furthermore, the tragedy of the situation remains. From all indications, Mr. Sheppard had a history of violence and psychological issues and lost his life in a blur of confusion and outrage at such a matter is certainly justified. It is equally tragic that no one will pay for Mr. Sheppard’s death. Nonetheless, justice is not merely a matter of pure retribution, but for correcting willful deviations from the standards set by the law. In the final analysis, it remains vital that our system accommodate exceptional and unique circumstances and be tempered by mercy to those who deserve it given such circumstances. This is precisely what was done in this case and should be done in all cases which call for it, no matter the accused’s station in life.

Lastly, the debate over the safety of cyclists is still a vital one, but ought not to be clouded by this one case. This is a complex issue concerning safety and the overall rules of the road in an urban setting and a matter of drivers and cyclists both finding a compromise to accommodate one another on the road. The Bryant case is a unique one and does not prove either side right or wrong and dwelling on it in this way will not advance this important debate. Bryant’s case was a matter of criminal law and justice, which is entirely different from cyclists and their safety.

Anyway, that’s just my opinion, what the hell do I really know?

*David Lewis’ piece which I quoted is entitled “The Punishment that Leaves Something to Chance,” originally published in Philosophy and Public Affairs 18, no.1 (1989)

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