Canadian True Crime - Collision Course: The Darcy Allan Sheppard Case (3)

Episode Date: August 22, 2024

[ Part 3 of 4 ] How the Justice System FailedThe controversial 2010 hearing where the prosecutor announced his decision to withdraw charges. While Darcy’s father expected that result, something seemed significantly wrong with how the prosecutor chose to explain how the decision was made. In this new four-part series, edited and re-mastered, you’ll hear a story of elites vs peasants, cars vs bicycles, and wealth and privilege vs poverty and crime. It’s a cautionary tale of how justice works differently in this country for some people.Listen ad-free and early: The entire series is available ad-free on our premium feeds - Amazon Music (included with Prime), Apple Podcasts, Patreon and Supercast.__________________________________________________INVITATION: 15th Annual Memorial Gathering - TorontoPlease join us Saturday, August 31 at 3 p.m. at the spot where Darcy died at 151 Bloor Street West. There’s a white Ghost Bike opposite Tiffany & Co and close to Bloor St and Avenue Road.__________________________________________________Special thanks to Allan Sheppard, Joe Hendry and Victoria (the eyewitness). Thanks also to writer Mary Fairhurst Breen for editing and creative direction on this reboot series.Please respect the privacy of those involved in this case.Full list of information sources, resources and credits:All the documents, evidence, statements, reports and news articles we’ve relied upon to write this series are available at www.canadiantruecrime.ca/episodes/darcy. Hosted on Acast. See acast.com/privacy for more information.

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Canadian True Crime is a completely independent production, funded mainly through advertising. You can listen to Canadian True Crime ad-free and early on Amazon Music included with Prime, Apple Podcasts, Patreon and Supercast. The podcast often has disturbing content and coarse language. It's not for everyone. After a number of delays, a court proceeding was scheduled for May 25th, nine months after the death of Darcy Allen Shepard. This hearing was going to be the big one. The items that had been holding things up had been resolved and this court date would determine how the case against Michael Bryant would proceed to trial.

In attendance was criminal defense lawyer, Marie Hennan, representing the interests of the accused, Michael Bryant. On the Crown prosecution side, which represents the interests of the accused, Michael Bryant. On the Crown prosecution side, which represents the interests of the community, there were two people listed on the docket. As you'll recall, Michael Bryant was the Attorney General of Ontario until two years before Darcy Allen Shepard's death, a position that saw him appoint and oversee the work of many staff Crown prosecutors. A potential conflict of interest. So Richard Peck, a high profile criminal defence lawyer, had been brought in from Vancouver,

British Columbia as Special Independent Prosecutor. Now when it came to who would represent Peck locally, the lawyer who would be on the ground managing the Crown's case, doing the investigative legwork and legal analysis, interviewing witnesses and making court appearances on behalf of the Crown, that lawyer was Mark Sandler, a name partner at Cooper Sandler Shime and Bergman LLP,

a criminal defense law firm based in Toronto. Mark Sandler was also experienced, highly regarded and well connected. He was and is a member of several associations, including the Ontario Bar Association, the Criminal Lawyers Association and the Toronto Lawyers Association. In terms of the potential for a conflict of interest, it should be noted that Mark Sandler actually knew the accused Michael Bryant. In fact, they served as benches or governors to the Law Society of Upper Canada for three years in the early 2000s, where they worked together several times. When Michael Bryant conducted that overhaul of Ontario's human rights system, Mark Sandler was serving as a part-time member

of the Human Rights Tribunal of Ontario. And in Michael Bryant's final year as Attorney General, he initiated the inquiry into paediatric forensic pathology in Ontario, which looked into the child autopsies performed by disgraced forensic pathologist Charles Smith. Three prominent lawyers were appointed commission counsel for the proceedings, and Mark Sandler was one of them. There were ties and connections between Michael Bryant and Mark Sandler before Darcy Allen Shepard's death. And again, in this role Richard Peck and Mark Sandler, two experienced criminal defense lawyers, would not be defending Michael Bryant but

prosecuting him independently. Michael Bryant would later write in his book 28 Seconds, quote, I learned something about the criminal defense bar in Toronto. They stick together and work together to help each other, even if they're not retained on the case. This doesn't apply to every lawyer, but amongst those who reciprocate, there is a small group of colleagues who advance the interests of the accused at large. He added that his lawyer Marie Hennan was able to consult with any number of senior criminal lawyers, quote, including a couple of my own supporters who happen to be strong

legal minds. Now before we go into what took place at that court proceeding, I should point out that this is another one of those situations where I'm applying context in hindsight with information that was not publicly available at the time. We have the transcript of the court proceeding, the collision reconstruction report, the autopsy report, the toxicology Report, the Coroner's Investigation Statement, we have audio of Steve and Victoria's 911 calls, their statements, as well as those of three other eyewitnesses. All information that

the media or general public did not have access to back then, including of course Darcy's loved ones. Let's examine what happened at that hearing and how it compares to the evidence we have. Special Independent Prosecutor Richard Peck did not beat around the bush, stating up front that he was going to be asking that the information before the court, the charges laid against Michael Bryant, be withdrawn.

He said that based on the information available to the police when they charged Michael Bryant, there were reasonable and probable grounds to lay charges. But since that date, a great deal more has been learned from what Peck described as the ongoing investigation. He said that this ongoing investigation only ended a few weeks earlier. And because there was such widespread interest in the case, he was going to explain his decision, starting with Darcy Allen Shepard's story and finishing with the version of events given by Michael Bryant, a version the public had not heard before. The special prosecutor Richard Peck started by thanking the defense team for providing the

Crown with very full disclosure of the case, describing it as a commendable occurrence in our adversarial system. The prosecutor wanted to emphasise that the decision he was about to present was his and his alone and officials in the Ministry of the Attorney General in Ontario had no input into the decision, an approach he said was consistent with the independence demanded of him. In presenting his decision, the prosecutor started by examining Darcy Allen Shepard's movements and his background. How Darcy showed up intoxicated to Misty's apartment, how he slept for a period of time and decided to leave, how a neighbour reported a noise

disturbance and the police showed up. The court heard that the resident who reported sounds coming from Misty's apartment, sounds of things being thrown around and screaming, mentioned something else in the call. This resident also advised that Mr. Shepherd had next been observed outside the apartment building, allegedly assaulting a homeless man, possibly with a bicycle lock. allegedly assaulting a homeless man, possibly with a bicycle lock. The special prosecutor told the court that they have the police printouts of the phone calls. Now this was the first time Darcy's loved ones and supporters had heard about this, and it should be noted that these police printouts have never been released publicly. What we do know is that when officers arrived at

the scene they heard nothing about a homeless man that had been attacked. No one else on the scene mentioned it either. Darcy then came across the Toronto police who noted he was acting belligerently and had been drinking but allowed him to proceed on his way. And it was not long after this that the altercation with Michael Bryant occurred. Michael Bryant's version of the story would be coming soon, but before that, the special independent prosecutor gave a summary of Darcy's background and criminal record. The breaking and entering in 1996, and pleading guilty to assaulting his common law partner in 1997.

The bizarre incident where Darcy was working for an organized crime boss in 2007, and threatened a taxi driver and two pedestrians with very real looking replica toy guns, which he would serve seven months in prison for. The special prosecutor presented details from the Gladue report that was prepared for Darcy's sentencing for the weapons offense.

That's the report that detailed the unique circumstances and systemic issues that come into play with indigenous offenders. Richard Peck noted the fact that Darcy and his younger brother, David, bounced through more than 30 foster homes. He said he wouldn't reiterate the details of the maltreatment they suffered, describing them only as shocking. He also mentioned that Alan Shepard had also written a letter for the court

to provide further details. Quote, what one learns from his father's correspondence with the justice system is that Darcy Shepard was intelligent, resourceful, imaginative, creative, and persuasive, but deeply scarred by his life experiences. The prosecutor spoke about Darcy's ADHD diagnosis and added that the material they had indicated that he also suffered from fetal alcohol syndrome, although he'd never been diagnosed. The court heard about Darcy's relationships and the children he'd fathered. All these facts about Darcy's past were presented fairly sympathetically, peppered with a few mentions of Darcy's friends

saying he was loyal and generous. The prosecutor told the court that the negative details were given, quote, "...not to demonise Darcy, nor as the basis for anyone suggesting that he somehow deserved his fate." The final paragraph of this part of the presentation states, Given what we know about Mr. Shepherd, it is not surprising that he would go into a rage from time to time. And you know, it is quite an amazing story. Most people are ill situated to overcome the obstacles this man faced.

In effect, the Crown was implying that while what happened to Darcy wasn't his fault, it contributed to him turning into what he inevitably was and always would be, a criminal, prone to the evils of addiction and to flying into a rage from time to time. And with that, the special independent prosecutor said, let me now give you the defence position. Throughout this part of the series, we're going to be using the phrase the court heard quite a bit. But I wanted to make a note about this.

It was a court proceeding, but it's important to keep in mind that this was not a trial. There was no jury. And while there was a judge, he was not there as a trier of fact. He was just there to oversee the proceeding. So now that the court had been primed with a collection of sad stories about Darcy Allen Shepard's life, his criminal rap sheet and more, it was time to hear Michael Bryant's side of the story, the defence position. Typically when a

Crown prosecutor decides to withdraw charges or not prosecute based on likelihood of conviction, they aren't required to go over their reasons for the decision. They may choose to mention the evidence they do or do not have and whether there would be a reasonable chance of conviction, but they generally do not go over the defense's side of the story as part of their reasoning. So this was unique. As it turned out, even though neither Michael Bryant

nor his wife would speak with police, nor did they ever give a public statement, they did permit an interview with the Crown, the special independent prosecutor. This could be considered highly unusual and is likely one of the reasons why the prosecutor thanked the defence for the very full disclosure in the case, saying it was a commendable occurrence in a system that's usually adversarial. After all, in what other situation would an accused person refuse to speak to police and refuse to give a public statement, yet permit the Crown prosecutor to interview them? But also, the criminal justice system is actually designed and intended to be adversarial, with

two opposite sides presenting their own theories of the case and a judge or jury deciding what has been proven or not proven by the Crown beyond a reasonable doubt. If the court system wasn't adversarial, that would mean that both sides were working together, which is not the intent of the criminal courts. Yet in describing this as a commendable occurrence, it appears that this is what the special independent prosecutor was saying here, that both sides were working together.

When it came to these interviews with Michael Bryant and his wife, Susan Abramovich, it wasn't actually the special independent prosecutor Richard Peck who interviewed them. It was his local representative Mark Sandler, the Toronto criminal defence lawyer who worked with and for Michael Bryant several times when he was the Attorney General of Ontario. And the court did not hear when these interviews took place. No date was given. But in Michael Bryant's later memoir, 28 Seconds, he revealed that these interviews, the first time he or his wife gave statements about what happened that night,

was nearly seven months after Darcy's death. At a minimum, this meant that their recollections were not fresh. But that's not all. They gave these interviews after the Crown had passed over the full disclosure of evidence in the case. So before they gave their statements, Michael Bryant and his wife were privy to what every eyewitness said they saw, what the forensic experts determined the collision reconstruction

report and more. Of course, an accused person has the right to view the Crown's evidence against them, just like they have the right to absolute silence. But there's no avoiding the fact that the longer a person waits to give their statement, the less credible they appear. Additionally, these interviews with the Crown were not police investigations, nor formal questionings. An investigator was present, but Bryant and his wife were not sworn in,

they weren't cross-examined, and they didn't answer any questions that were not approved by their lawyers, who were also present. And lastly, the defense stipulated that the interviews had to be conducted without prejudice, which meant that none of the answers given could be used against Michael Bryant. So, with all of this in mind let's go through the version of events offered by Michael Bryant and his wife and how it compares to the evidence we have that wasn't publicly available at the time. The special independent prosecutor told the court about Michael's dinner with his wife,

how neither had been drinking that night and how they were driving along Bloor Street in the 1995 Saab, with both the windows and the top down. Here, we learn for the first time that according to Michael Bryant, his altercation with Darcy Ellen Shepard does not start at the mid-block pedestrian crossway where Steve and Victoria made their 911 calls. He says it started at the main intersection before that, Yonge and Bloor. Hey, listeners, want to diversify your portfolio easily? The All-in-One ETFs from Fidelity Investments Canada lets you do just that. Each ETF provides exposure to stocks, bonds, and crypto so you can potentially maximize

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And filled with witty dialogue, pop culture references and subtle clues that make solving the mystery a fun challenge each week. Confession, I often miss most of them on the first watch because I'm distracted by Selena Gomez's stunning outfits. She plays Mabel, a mysterious young woman living in an apartment building called the Arcadian, and she shares the elevator with two eccentric older residents with Steve Martin and Martin Short, playing a washed-up actor named Charles and an out-of-work thespian struggling to pay his bills named Oliver. They bond over a shared obsession with crime podcasts and when a fellow resident of The Arcadian is murdered this unlikely and unqualified trio can't resist snooping around and start

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I will be watching the opening credit sequences to each episode closely because, as fans of the show know, they always include subtle clues and Easter eggs. Only Murders in the Building Season 4 premieres on August 27, exclusively on Disney Plus. I'll be trying to solve the case each week. You should join us and don't forget to tune in every Tuesday for a new episode. Thank you for listening to Canadian True Crime, brought to you in partnership with Disney Plus and Acast Creative. ACAS creative. The special independent prosecutor continued with Michael Bryant's version of how the altercation started.

He said after dinner, Michael and his wife were in their convertible on Bloor Street when the traffic started to slow down because of the construction. He looked ahead and saw that there was a misplaced traffic cone blocking a lane and noticed an individual throwing debris onto the road to impede traffic. When the traffic edged forward and the Saab was next to that misplaced traffic cone, Michael said he stopped it and moved the cone over to the side of the road to free up the lane. He then drove the Saab through the intersection,

moving towards the mid-block pedestrian crossing behind a white SUV that was travelling slowly. Quote from the special independent prosecutor, the vehicle's progress was being impeded by a cyclist who was doing figure eights in front of it. The cyclist was the same man he had seen throwing debris on the south side. Later on in the presentation, the prosecutor quotes a part of Michael Bryant's 911 call. Again, we don't have access to the audio or a transcript. But this is how Michael Bryant described what he perceived the cyclist had been doing.

Quote, he was literally picking fights with people on the corner of Yonge and Bloor and putting up obstacles in the way and trying to stop cars from going. We all avoided him, drove past him." Before this court proceeding, no one could have known that this part of the story existed, because this was the first time that it had been publicly revealed. It sounds as though Michael Bryant was just one of a number of motorists who were apparently also watching what this cyclist was doing and trying to avoid him. This wasn't a quiet intersection, it was Yonge and Bloor, one of the busiest and most

well-known intersections in the city of Toronto. And Darcy's high-profile death was widely published in the media in the following days, along with his photo, making it fairly obvious that any unusual behaviour witnessed near that same stretch of Bloor Street that same night was worth reporting. But curiously, the court heard nothing about any other motorists who came forward to report they had witnessed such bizarre behaviour on that same stretch of Bloor Street that night.

Nothing either from any bystanders or pedestrians. According to Michael Bryant, he soon lost sight of the cyclist as he continued to drive slowly on Bloor with traffic. Then he stopped at the red lights at the mid block pedestrian crossway. Quote, as Mr. Bryant was waiting for the pedestrian lights to change, the time was approximately 9 48 p.m. At this point, Michael reported he was a little concerned about the whereabouts of that cyclist and was looking over the passenger side to the curb to see if he was coming when suddenly he felt something brush past him on the driver's side. It was the cyclist passing him.

Quote, as Mr. Shepherd was cutting in front of the Bryant vehicle, Mr. Bryant was moving the vehicle forward as the traffic light had changed to green and the car in front of him had moved through the area. This is fairly consistent with what the reconstruction experts found. When Darcy passed the car, the light was red, but it changed to green just as he manoeuvred in front of the Saab and stopped. When it came to that brush that Michael Bryant said he felt, he reported that he had a sense that it was actually the cyclist taking a swing at him. The prosecutor pointed out that he did say this

to the 911 operator when he got to the Park Hyatt Hotel around the corner. Remember, we have no access to a transcript or audio of this 911 call, only a bulleted summary of the call that was on the collision reconstruction report. One bullet states that Michael Bryant said, Guy on a bike sort of attacked me. And another says Michael thought the cyclist took a swing at him and missed. The surveillance footage was mentioned, but this court proceeding wasn't a trial, so

the court did not view the video. But what's interesting to note is that the collision reconstruction experts determined that the video showed Darcy drove down the centre of the roadway past the Saab with his hands on the handlebars before driving in front of the stopped Saab. Now the prosecutor stated that the video did not confirm that Darcy took a swing at Michael Bryant in the car as he cycled past, but he added that video experts agree that the video was low quality and a low number of frames per second so it's possible that quick movements might not have been captured by the video. So the court was hearing that a cyclist with a blood alcohol level twice the limit to drive

was somehow able to take a swing at a person in a convertible as he cycled past, such a stealthy swing that it's possible the surveillance cameras only captured frames that didn't show it. And then this cyclist decides to stop directly in front of said convertible, facing forward in a very vulnerable position. The video may not have confirmed it, but according to the prosecutor, what the video does show is that Darcy came very close to the driver's side door and quote, Mr. Bryant ducked to his right while hitting his brakes and turning his wheels to the right.

The vehicle, Mr. Bryant says, then stalled. Now, while that was all included in the same sentence, I've watched the video in slow motion several times, and I can't see any evidence of Michael Bryant ducking and turning the car wheels. It does show that the vehicle starts to move as Darcy passes it. That's when the light changed to green and when Darcy stops in front of the car,

you can see the rear bumper go up a bit as it suddenly breaks. This could be considered consistent with stalling, although the collision reconstruction experts don't mention anything about it. The court was told that what the video does show was changes in the luminosity of the Saab's headlights on a number of occasions.

Quote, The expert evidence confirms that one explanation for this is that the headlights dimmed as a result of the vehicle stalling and then being restarted. The special independent prosecutor didn't provide any other possible explanations, nor did the court hear that this one was considered the most likely explanation. It was just one explanation that happened to fit with Michael Bryant's story. Next, the court heard that, quote, the police took statements from numerous eye witnesses in the area.

The witnesses described seeing and hearing aspects of what occurred. No single witness appears to have observed the events from start to finish, and there are both consistencies and inconsistencies in their evidence. The prosecutor went on to say that one of the largely consistent themes in eyewitness statements was that Darcy was acting loudly and aggressively, confronting Michael Bryant while he and his

wife remained passive. His wife apparently described Darcy as terrifying. There was no further explanation about what Darcy was actually doing that was consistent with acting loudly and aggressively, no examples were given, no eyewitness statements were mentioned. None of the other largely consistent themes were mentioned. In fact, the things that Steve and Victoria said they saw was quite contradictory to this theme that Darcy was acting loudly and aggressively. His conduct was perceived as passive aggressive from a vulnerable position as he straddled his bike at the lights in front of the Saab, facing forward the whole time. Standing in front of the car with his bike and he wasn't moving and the lights changed to green. And he said, you want me to move now?

You know, like kind of he was tormenting him. And the car driver then bumped him a couple of times. The thing that really struck me, even at that point in time, was that there was no verbal altercation between the two. Absolutely nothing. And as you'll remember, Darcy then said something to bystanders. You're all witnesses to this.

Despite three separate independent witnesses on record saying they heard Darcy say this, there was not one mention of it in the Crown's presentation that day. It should be pointed out that Darcy had been charged and convicted of assault before. He knew what constituted assault in the eyes of the law. So if he was the aggressor, the perpetrator of an attack on Michael Bryant, why would he want to make sure there were witnesses to it? According to Michael Bryant, he just wanted to get away as this was happening. He had already stalled the car and as he attempted to start it and get moving, it lurched forward, stalling, again. Now at this point, the court heard that there were two pieces of evidence about the car stalling. One was Michael

Bryant's own version of events, a version that was given almost seven months after the incident after he'd reviewed all the evidence. And his version of events had not been tested or subjected to cross-examination. The second piece of evidence the court heard about was that video experts opinion that the engine stalling could be one explanation for the change in luminosity of the headlights. But that was only for the first time Bryant said that the car stalled. The collision reconstruction report mentioned nothing about the car stalling or anything related to that, but perhaps it's because they didn't actually know to check.

The first time that Michael gave his version of the story was seven months after Darcy's death, and by that point, the collision reconstruction report was done and dusted. There was nothing to indicate that the vehicle stalled twice at the time. None of the eyewitnesses mentioned anything about the car stalling and Michael Bryant didn't even mention it in his own 911 call.

The special independent prosecutor continued with Michael Bryant's version of events. At this point, after the car had allegedly stalled a second time, Michael reported being in a state of panic. Quote, He was trying to get his car started and concentrating on that task. The Saab had a sensitive and tight clutch, as confirmed by the investigation. And then, quote, When the vehicle restarted, it accelerated into Mr. Shepherd, causing him to land on the hood of the vehicle.

This was being positioned as an accidental acceleration involving a tight or sensitive clutch while the Crown and Defense conducted their own investigation and review. It should be noted that there is nothing in the collision reconstruction report about the Saab's clutch or anything mechanical that may have explained an accidental acceleration, nor is there anything in the vehicle mechanical examination report prepared by the Toronto police. The court heard that at the point of this third Ford movement of the vehicle, quote, Mr. Bryant states that he had been looking down while engaged in his efforts to restart the car.

When he looked up, he saw Mr. Shepherd on the hood of the car and immediately hit the brakes. Experts determined that the car travelled a total distance of approximately 30 feet from the time the vehicle started its forward motion to the time the vehicle started its forward motion to the time the brakes were applied and about 2.5 seconds elapsed. During this part when the Saab accelerated, Darcy's bike was caught under the front bumper.

The court heard that quote, when the vehicle stopped, Mr. Shepherd fell off the hood and then stood up within about two seconds. He clearly was not seriously injured at that time. This statement was not attributed to any medical professional. It's just an opinion about the degree of possible injury based on Darcy's apparent speed of recovery. And this opinion appears to contradict everything the medical science community reports about the effects of adrenaline after a crash or collision. Adrenaline is the hormone that floods our bodies to help us deal with stressful situations, and it can dull pain, heighten abilities, and mask serious injuries like internal bleeding, soft tissue

injuries and traumatic brain injuries. The effects of adrenaline are only temporary, enough to help us deal with the situation at hand. So the fact that Darcy got up after two seconds tells us nothing about whether he was seriously injured or not. And the autopsy obviously couldn't discern between the possible injuries he sustained after the car accelerated into him and the fatal, unsurvivable injuries he would suffer just 30 seconds later. Additionally, even if Darcy was completely

uninjured, this does not negate the fact that as he was straddling his bike facing forward, he was hit from behind with force by a car. There is definitive evidence that Darcy was injured in some way because there were numerous blood marks found on the bumper and grille of the car and his cut-up hands left blood marks on the interior of the driver's side. And then there's this from Michael Bryant's memoir 28 Seconds. During my frenzied attempts to start the car as it stalled and stalled, the Saab lurched three times.

The first, with the wheels aligned to the right, moved the car away from Shepard. With the second, there was still no contact with him or his bicycle. The third caused Shepard to land on the hood. But it was at a low speed, brief in duration, and because he was already so close to the car, left no discernible injury. The prosecutor continued, telling the court, quote, to the south or the driver's side slightly ahead through his backpack, which struck either the hood or windshield and bounced onto Bloor Street, landing near the North Curb. Mr. Shepherd then leapt onto the vehicle as the vehicle began to move away. I need to reiterate again that while both legal teams had access to all the witness statements as well as the other documents and reports like the Collision Reconstruction Report,

it would be a few more years before they would be released publicly. So in 2010, when this hearing was taking place, there was no trial, no evidence presented, no testifying under oath, no cross-examination, and no testing of fact. The court heard that when Darcy Ellen Shepard leapt onto the car, both Michael Bryant and his wife described him as trying to get into the vehicle. And then, quote, One of the eyewitnesses described

seeing Mr. Shepard in the vehicle from the waist up. The prosecutor then referenced their own independent forensic exam. Quote, Impressions consistent with having come from Mr. Shepherd's jeans were found in the rubberised area on top of the driver's door, consistent with the witness who described Mr. Shepherd as being in the car from the waist up. Whatever is included in the Crown's independent forensic investigation is firewalled and cannot be released under freedom of information. But in the collision reconstruction report, there is nothing that mentions Darcy's jeans or any impressions found on a rubberized area on the driver's door.

And there is no reference to any eyewitness saying they saw Darcy in the vehicle from the waist up. No one said they saw him in the vehicle at all. In fact, one witness stated, the cyclist would not have had time to climb into the car. The prosecutor said quote, the accounts of the eyewitnesses coupled with the forensic examinations confirm that Mr. Shepherd was attempting to attack Mr. Bryant at that time. We couldn't find a single eyewitness report that Darcy physically attacked Michael Bryant. Again the conclusion from the collision reconstruction report, which wasn't public at the time. There was no physical evidence or independent witness

statements suggesting Mr. Shepard affected the steering of the Saab or anything to suggest he physically attacked Mr. Bryant. You might remember that early on, the special independent prosecutor explained that the proceedings would be delayed because the Crown was re-investigating further and re-interviewing witnesses. But as it turned out, none of those eyewitnesses were actually re-interviewed by the Crown. Instead, the prosecutor referred to a different collection of eyewitness statements we can't find any record of, statements that appear to contradict the 19 separate accounts included in the Collision Reconstruction Report.

In fact, there appeared to be no mention whatsoever of any of those eyewitness statements, including those given by Steve and Victoria just hours after the tragedy. Yet for some reason, the prosecutor also favoured the untested accounts of Michael Bryant and his wife, which weren't given until seven months later and under less than transparent conditions. Obviously, at trial, it's expected that defence counsel will present a narrative to defend the accused. But it's unusual for the Crown prosecutor to do this, let alone a special independent prosecutor assigned to avoid a conflict of interest. According to the Public Prosecution Service of Canada, a prosecutor's function is a matter of public duty.

They're obliged to consider all the evidence in totality, firmly and fairly, maintaining objectivity with no personal opinions or unproven facts. Quote, the Crown must lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Now obviously this wasn't a trial there was no judge or jury it was a court proceeding where the Crown announced its decision to withdraw Michael Bryant's charges. So the court has been told that Darcy tried to physically attack Michael Bryant before latching onto the car. At this point, Richard Peck, the special independent prosecutor, gave an account of Michael Bryant's

state of mind, saying that he intended to get away from Darcy throughout the event and was in a state of fear and panic. His wife described never having been so scared in her life. The prosecutor continued with Michael Bryant's version of events, quote, The Saab was heading in a westerly direction. Almost immediately it veered to its left, Quote, the Saab was heading in a westerly direction. Almost immediately it veered to its left, heading on an angle to the southwest and then

west in the eastbound lane we've seen in the picture. We don't know why that happened. There are any number of suppositions that one could draw, a struggle. In any event, it crosses over and now it is heading blind, because from the position he was in, you couldn't see what traffic was coming." End quote. So now we're up to the part where the Saab driven by Michael Bryant has veered over into the wrong side of the road with Darcy Ellen Sheppard latched on to the driver's side. The special independent prosecutor gave some examples of a number of

significant disparities in what the Crown's collection of eyewitnesses observed about how Michael Bryant was driving the Saab. Quote, three of the witnesses described the vehicle as swerving or weaving. Another three witnesses said they did not observe any swerving. Mr. Bryant said he was trying to keep control, was struggling. The vehicle was not swerving all over the place. The prosecutor described these eyewitnesses as honest people, but said their accounts are different because eyewitnesses see different things. As further examples of this, the court heard that some

eyewitnesses said they saw the Saab hit the kerb, others didn't and there is little video of this part of the incident. According to the special prosecutor, the Crown's own forensic investigation of the vehicle and the kerb determined that the Saab did not rub up against or mount the kerb at any time. Now for comparison, here is the relevant part from the conclusion of the collision reconstruction report. Quote, The Saab movements were described as deliberate swerving movements, which moved the vehicle closer to the fire hydrant

trees and posts on the south side of Bloor Street West. The court also heard about the car's speed, from the point at which Darcy Ellen Shepard latched on. As you'll recall, the eyewitness accounts in the collision reconstruction report suggested that the car was going quite fast with estimates of 50 to 100 kilometers per hour. The speed limit on Bloor Street was 50 kilometers an hour but because there was construction on the road at the time that brought it down to 20. The experts who wrote the collision reconstruction report attempted to calculate the speed of the Saab,

but concluded there weren't enough data points like video evidence of that part. And even if there were enough data points, there are many variables that make that calculation difficult, like the fact that the car wasn't going the same speed the whole time. The special independent prosecutor referred to the findings of the Crown's video expert that the average speed of the Saab was somewhere in the range of 34 km per hour.

He suggested that Michael Bryant and his wife believed the car was in first gear at this point, causing the engine to audibly rev, which might have caused the eyewitnesses to misperceive the car as going faster than what it actually was. The implication was that these eyewitness accounts should be taken with a grain of salt. Earlier, the court had heard that two witnesses observed the brake lights come on during the course of this drive. The prosecutor told the court that Michael Bryant acknowledged braking in the hope that Darcy Ellen Shepard would let go of the car. But as you'll remember, the eyewitnesses saw it differently. One said Darcy was holding on for dear life,

he couldn't have let go at that speed. Another said the car was going very fast and there would have been serious damage if Darcy let go. And three more described Michael Bryant's driving not as an attempt to get Darcy to let go but as an attempt to dislodge him or shake him off. This is also how the reconstruction experts described it in the report's conclusion. According to the special prosecutor, Michael Bryant was trying to drive as straight as he could, but it was a struggle to keep the wheel straight. Quote, Mr. Shepherd's face was very close to his, and he believes that at one point he was struck in the forehead by Mr. Shepherd. This is a good example of a point in which Michael Bryant's version of events is presented as fact without the proper

testing of the evidence. There is no other evidence to suggest that he was struck in the forehead. The court heard that the total distance from the point where Darcy jumped onto the car to the point where his torso slammed into the fire hydrant was approximately 100 metres. The entire incident took less than 30 seconds. And during this part of the sequence, where the car accelerated forward 100 metres on the wrong side of the road, with Darcy hanging off the side, Michael Bryant claimed he struggled to maintain control of his car. But someone was in control of the brake, accelerator and clutch pedals as well as the steering wheel. The road wasn't wet or icy and the pavement was completely dry that summer night. And you'll remember the collision reconstruction report included details about at least three

witnesses who were asked whether they thought the car was out of control and none of them did. One even added that in their opinion no one could say it was an accident and another witness who wasn't at a vantage point to see Darcy clinging to the car stated that the car was in full control as it went into the curb quote just enough to squeeze the guy off. So after Darcy was dislodged from the car after hitting the mailbox and fire hydrant, the court heard that Michael Bryant reported feeling in control again and

proceeded from the wrong side of the road back to the correct lane of travel. He then traveled the short distance around the corner to the Park Hyatt Hotel. The prosecutor told the court that Michael Bryant's intention was to call 911, and the reason it took three minutes for him to make that call was because he couldn't find his Blackberry cell phone. He looked for it in the driver's footwell, but he couldn't find it there, so he used his wife's cell phone to call 911. Next the court heard what Michael Bryant said in his 911 call.

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Read the funds or ETFs perspectives before investing. Funds and ETFs are not guaranteed. Their values change and past performance may not be repeated. The special independent prosecutor continued with Michael Bryant's version of the story as he parked the car and grabbed his wife's phone to call 911. He told the operator who he was and that he was at the Park Hyatt Hotel and said he'd been attacked by a man on a bicycle in Bloor Street who had been hanging out of his car. That man would of course be identified as Darcy Allen Shepard. The prosecutor quoted a part of that 911 call

where Michael described the disturbance happening before that mid-block pedestrian crossway. He alleged that the man on the bike, quote, literally picking fights with people on the corner of Yonge and Bloor and putting up obstacles in the way and trying to stop cars from going. We all avoided him, drove past him and then he came back. I'm in a convertible so he came back and he started, I mean I thought he took a swing at me but whatever he missed and then he

pulled in front of me and stopped. I slammed on the brakes and I tried to get away and then the next thing I knew he's like trying to climb into my car and I think he grabbed something from the car and pulled it out." Michael Bryant described the cyclist as being pretty violent. When the operator asked Michael where the cyclist was now, he said, somewhere on Bloor I suppose, and added that he just wanted to pull into a place where the operator then offered, where you felt a little safer? Bryant replied, yeah. He then waited for the police to arrive.

This is all the court heard about this 911 call, and again we don't have a transcript or audio because Michael Bryant never gave permission for it to be released, which is of course his right. The collision reconstruction report includes a bulleted summary of the things Michael Bryant said during the phone call and one of those bullet points states that he told the 911 operator that he believed the cyclist grabbed his blackberry specifically. But after the police had seized the Saab and searched it, they found that blackberry in the passenger footwell. Also included in the special prosecutor's presentation was mention of the doorman at the Park Hyatt,

who recognised Michael Bryant because he frequented the establishment. The doorman stated that at some point during their interactions, Michael Bryant stated that he had been assaulted and either then or at some later time also stated that he had roughed the guy up or I roughed him up good and further he's in pretty bad shape over there pointing towards Bloor Street. The prosecutor told the court quote Mr. Bryant's recollection of the words he used to describe what had happened differs from that of the doorman, but these differences are ultimately immaterial. The doorman's statement has never been released, presumably because he didn't give permission. The court heard that Michael Bryant's account of the evening and that of his wife has been evaluated in the context of other evidence available to the Crown, which apparently included the surveillance video, the account of, quote, pedestrians, nearby workers, other motorists and one individual from his fifth floor residents, multiple forensic reports, and advice from experts, the various 911 calls,

and finally, the prior history of Darcy Allen Shepard. Darcy's background and criminal record were, of course, included in this prior history, but in this case, it also included something else. Special Independent Prosecutor Richard Peck stated that in other similar cases where the accused claimed they acted in self-defense based on the level of aggression they perceived from the other person, the law recognises that reports of prior aggressive conduct from that other person is also relevant,

that other person of course being the victim Darcy Ellen Shepard. Put another way, there were reportedly more incidents of other motorists who were antagonised by a cyclist they believed was Darcy in the months and years before his encounter with the car driven by Michael Bryant. These incidents were considered relevant to show the probability that Darcy was also the aggressor in the incident that caused his death and contributed to the decision to withdraw the charges against Michael Bryant. The special independent prosecutor explained that there was precedent for this and cited

a landmark case from 1981 that cemented the emerging reputation of the late criminal defense lawyer Edward L. Greenspan QC as a powerhouse in the legal community. The case is called R.V. Scopolidi and this podcast covered it in detail in episode 139. As a very quick summary, Antonio Scopoliti shot and killed two teenagers who entered his convenience store in Arillia, Ontario. He said he was acting in self-defense, believing they were trying to rob his store and would kill him in the process. It was 1979 so no surveillance video and there were no eyewitnesses to the incident.

Scopoliti's claim of self-defense hinged on his own account of what happened, which was a little vague and inconsistent in detail. In similar cases, the court allowed bad character evidence of prior aggressive conduct by the victim to demonstrate that they were also likely to be the aggressor in the current case before court. But bad character evidence could only be admitted if the defendant was aware of the victim's prior conduct

at the time, because it couldn't have influenced his state of mind if he didn't know about it. But this evidence also had the potential to unfairly prejudice a jury and shift their focus away from the facts of the case at hand. For similar reasons, a jury typically doesn't learn about a perpetrator's criminal history until after their verdict. Now Antonio Scopoliti did testify about several negative encounters he personally had with the two teenagers before, but the judge described them as being minor in nature compared to the

details he gave about that final encounter. But Scopoliti's defense lawyer, Edward L. Greenspan, had uncovered additional evidence that showed the two teenagers acting violently and aggressively in the 10 months before Scopoliti shot them. Aurelia was a small town and the teenagers were positively identified in each of the three incidents. The problem was that Scopoliti wasn't involved or aware of them at the time. Edward Greenspan thought the jury should still know about these incidents. He argued that the conduct of the teenagers during these prior incidents was factually

similar to Scopoliti's account of their conduct and could potentially corroborate it given there were no eyewitnesses. The Crown argued back that this evidence should not be admitted because it didn't prove anything. The judge sided with Greenspan and found that these incidents of prior aggressive conduct by the teenage victims was relevant information for the jury to consider, but gave them very specific instructions. The jury was only to use it to evaluate the likelihood that the teenagers were acting the way Scopeliti described the night he shot them. What the jury couldn't do is use it to determine whether Scopoliti was genuinely terrified for his life and personal safety.

Antonio Scopoliti was found not guilty of second degree murder on both counts and the verdict was upheld by the Ontario Court of Appeal. Today, the defence can apply to admit evidence of prior conduct by the victim to demonstrate they had a propensity for assaultive behaviour, even if the defendant claiming self-defence didn't know about it at the time. So that brings us back to 2010, the hearing where special independent prosecutor Richard Peck was about to present Scopelidi evidence as part of his explanation for withdrawing the charges against Michael Bryant. It consisted of the accounts of six separate motorists who reported having an altercation with a cyclist they believed was Darcy Ellen

Shepard. Michael Bryant was of course unaware of them at the time and these motorists only came forward after Darcy's death when they recognized him from a picture published in the media. Incident number one involved a 76 year old female motorist who said she was confronted by a cyclist claiming she cut him off. He yelled at her, followed her and told her to get out of the car. Describing the cyclist as like a madman, she felt forced to speed away. Darcy's loved ones listened in surprise as this was read out at the hearing. Ellen Shepard would describe his reaction as surprised, shocked, embarrassed and guilty, both for Darcy and for himself as a parent. The conduct described by the special independent

prosecutor wasn't out of the realm of possibility when it came to Darcy's behavior, but there were a few things that struck Ellen as odd. This elderly witness couldn't remember a date, a general time frame or what year it was that she had this encounter, only that it happened several years prior. But she was able to recognize Darcy from a photo published in the media years later. Toronto is not a small town, it's a sprawling city with millions of people. And Darcy was known to frequently and quite dramatically change his look. One of the two main photos published by the media shows him clean shaven with short dark hair with

frosted tips and in the other he has bleached blonde hair spiked at the top and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved and shaved On to incident number two, which reportedly happened about two to three months before Darcy's death. The prosecutor told the court that this incident involved a man in his 30s who reported that a cyclist resembling Darcy passed too closely by him. After exchanging expletives, the cyclist angrily approached the man and they had a verbal argument where the cyclist pulled out a bicycle lock and challenged the man to a fight. But the man's employer intervened and told them to walk away. Again, this person saw a photo of Darcy in the media several months later and recognized him.

The fact that this incident involved a bicycle lock jumped out to Darcy's loved ones because earlier during the hearing, the prosecutor said that Darcy was observed allegedly assaulting a homeless man, possibly with a bicycle lock, as reported by a resident at the apartment building about an hour before his altercation with Michael

Bryant. The court heard there were police printouts that confirmed this observation but none of the responding officers or any of the other residents at the scene heard or reported anything about an assault on a homeless man, let alone with a bicycle lock. But two stories involving the same detail had the effect of lending credibility to both stories, even though neither had been tested in court. Incident number three occurred about a month before Darcy's death.

A 23-year-old woman observed a cyclist swerving in and out of downtown traffic in an aggressive way, saying that she had cut him off. She said he came at her completely enraged, calling her a whore and a stupid bitch, spitting on her vehicle before trying to pursue her as she drove off. When she saw the photo of Darcy in the paper, she said she burst into tears because she knew it was the same person and contacted the police. Incident number four happened a little over two weeks before Darcy's death. A motorist

in a BMW had veered slightly into the oncoming lane to avoid parked delivery vehicles and suddenly noticed a man was screaming and yelling at him saying, Just because you drive a fancy car, you think you can drive down the wrong side of the road. The driver reported that the individual reached into the car, tried to grab the keys, smack the driver and grab his earpiece. The driver pushed the man out of the car and the man said he'd beat the driver's head in before spitting on the car, banging his fists on it and then jumping onto the car, holding onto the window. Now what is different about this incident is that there is photographic evidence. An onlooker took

four photos and they were presented in court showing a quote shirtless and angry-looking Darcy hanging on to the car with his hands inside the driver's window and his feet on the car's running board. Darcy's loved ones had no idea about this incident but the photographs definitely appeared to be Darcy's loved ones had no idea about this incident, but the photographs definitely appeared to be Darcy. It showed him with the hairstyle he was sporting at the time of his death, an unstyled dark brown mohawk shaved at the sides. Because this photo was a clear identification of Darcy, his loved ones believed by inference that the other reports must be true as well. Incident number five happened in the days before Darcy's death.

The special independent prosecutor said a motorist reported honking his horn at a cyclist in the centre of the passing lane. The motorist drove around him but further up the road, the cyclist came up and slapped the driver's side window of the car, making angry comments, spitting and salivating. The cyclist threw something at the car, which damaged the left side view mirror. According to repair documents witnessed by the prosecutor, the motorist was positive that Darcy Ellen Shepard was the cyclist he encountered. The final, sixth incident presented by the prosecutor as evidence that Darcy had a prior history of attacking motorists happened only a

few hours before his death. A motorist observed a cyclist doing figure eights and weaving through traffic so erratically she had to slam on her brakes to keep from hitting him. She observed him reaching into the open driver's side window of another car as though he tried to grab the steering wheel, climb in or scare the driver, and he then banged on the windshields of other cars. This happened on a busy Toronto street just hours before the highly publicised incident

involving Michael Bryant and his Saab, but there was no mention of any other motorists who corroborated this story. The prosecutor told the court that the following day, this motorist saw two pictures of Darcy Allen Shepard in the media, and based on one of those pictures, she identified him as the cyclist she saw, but she said that she was not absolutely certain. But the court heard that the detail she provided was strikingly similar to Michael Bryant's

own version of events. His observation of Darcy making trouble at the intersection before their altercation began and then claiming he tried to reach in and grab the wheel, climb into the Saab and steal his blackberry. As you'll recall no other motorists corroborated his story either. And what the court didn't hear is that Bryant was silent for months afterwards until he received details about these incidents as part of the Crown's disclosure of evidence. Only after that did he provide his version of events to the Crown in that Without Prejudice interview. Special Independent Prosecutor Richard Peck stated that they received even more reports

but chose the six they considered to be the most reliable. These six incidents, quote, towards motorists in the days leading to the fatal interaction with Mr. Bryant. According to the prosecutor, these motorists were quote, independent, credible witnesses subject to careful interviews, with details that were similar to those given by Michael Bryant and his wife and consistent with the quote, reliable objective evidence already presented. But there were a few key differences between this Scopeledi evidence and the evidence submitted by Edward Greenspan as part of the original Scopeledi trial. In his 1987 memoir, Greenspan,

The Case for the Defence, published eight years after the Scopeliti case, Greenspan accurately predicted that Scopeliti evidence in future trials would be limited. We can't find a single other case where an application was successful. The main reasons they were not admitted is because the trial judge either found the timing of the prior incidents or the details provided weren't close enough to the incident at trial

to be relevant. Greenspan wrote that the reason he believed the Scopeledi evidence would be limited at future trials was because quote, ultimately, the question of guilt or innocence can only be answered by a judicial process in which all relevant evidence is played before the trials of fact according to law. And that's the thing. This hearing where the charges against Michael Bryant were withdrawn, wasn't a trial. The special independent prosecutor didn't apply to have the Scopaliti evidence admitted,

and a judge never ruled on it. The motorist witnesses weren't identified and didn't testify. The prosecutor just read out brief summaries of what they might have testified to. There was no cross-examination on those areas that needed more qualification, and no judge or jury to evaluate it and arrive at a verdict. Canada abides by the open court principle that public interest in the integrity of the court system and administration of justice is fostered by openness and full publicity." This didn't happen during that hearing in 2010.

The court had to trust the Crown's opinion that this untested Scopaliti evidence was relevant and credible to support withdrawing the charges against Michael Bryant, along with all the other evidence mentioned. Had there been a trial, the jury would have also heard testimony about the police investigation, the 19 eyewitness accounts included in the collision reconstruction report, and the experts who concluded that both Darcy Allen Shepard and Michael Bryant shared responsibility in the incident. The jury would have seen the CCTV footage and heard from the video experts who interpreted

it with the opportunity to cross-examine all of the witnesses. The result might have been exactly the same, but at least in the eyes of the public, it would have had the appearance of due course and transparency, a judicial process where, as Edward L Greenspan put it, all relevant evidence is played before the trial is a fact according to law. Thanks for listening. In part four, the final episode in this new series, you'll hear what Michael Bryant's defence lawyer Marie Hennan had to say that day, and I speak with the eyewitness Victoria about how she felt behind the scenes as the case progressed. Finally, we'll follow the twists and turns of the aftermath as Darcy Ellen Shepard's

loved ones and supporters continue to press for the truth. Thanks for listening. Transparency and openness is important to us, so we've put all the statements, reports, videos and other information we refer to in this series on our website at canadiantruecrime.ca slash Darcy. You can review and compare all of the documents and check out further analysis, including on the Darcy Ellen Shepard files blog

created by Darcy's father, Ellen, and the Bryant Watch blog maintained by cycling advocate, Joe Hendry. Special thanks to Ellen and Joe, Darcy's former partner Misty and eyewitnesses Victoria and Steve. Thanks also to author Mary Fairhurst Breen who edited the original series down to this shorter version. Initial research was by Hayley Gray with production assistance by Aviva Lasade and Eileen McFarlane.

Additional research writing media analysis interviews and sound design was by me. Eric Crosby voiced the disclaimer. Music by Epidemic Sound and Blue Dot Sessions and the theme songs were composed by We Talk of Dreams. As always thank you so much for your kind ratings, reviews, messages and support. We appreciate them.