Crown faces challenge in giving former A-G a fair trial

Former Ontario attorney-general Michael Bryant talks to media outside the Toronto Police Traffic Services on Sept. 1, 2009. THE CANADIAN PRESS


Bryant hires lawyer; Ontario may bring in out-of-province judge to avoid bias

Jill Colvin

From Friday's Globe and Mail

Michael Bryant announced Thursday that he has chosen Toronto lawyer Marie Henein to go head-to-head against Vancouver star attorney Richard Peck in his high-stakes trial on charges in the death of cyclist Darcy Allan Sheppard.

The showdown is set to be one of the most explosive in recent memory as two of the country's top lawyers grapple with how a high-profile former politician with a glittering reputation who happens to be a former Ontario attorney-general can get a fair trial.

Ms. Henein isn't new to the game. She is best known for defending former NHL agent David Frost against sexual-exploitation charges stemming from his time as a junior-league coach, and currently represents Marcia Dooley in the appeal of a nearly-decade-old conviction for the beating death of her seven-year-old son.

Mr. Peck, who has been retained by the Ministry of the Attorney-General of Ontario as a special prosecutor, successfully defended Ajaib Singh Bagri on murder charges in the high-profile Air India trial. He has served as a special prosecutor on numerous cases, some of them involving high-profile politicians.

“He's the go-to guy for these types of cases in B.C.,” said Mike Tammen, a Vancouver criminal lawyer and Mr. Peck's former legal partner. “It's only a matter of which side gets to him first.”

But as the Crown begins to build its case against a former top legal player in the province, maintaining the appearance of objectivity is going to be a challenge, criminal lawyers and legal experts say.

“The authorities will have to work very hard to make sure that it's completely transparent,” said Christopher Sherrin, a professor of criminal law at the University of Western Ontario and former part-time assistant Crown attorney. “They don't want it to seem like there's any favouritism.”

Finding an unbiased prosecutor was the first challenge in preparing to try Mr. Bryant, who, as attorney-general, was the boss of most of the people currently working as Crown prosecutors in the province, said Phil Downes, a Toronto criminal lawyer and former counsel with the Crown Law Office.

Outsourcing is standard practice in cases involving lawyers, judges, politicians or high-ranking police officers to prevent the appearance of bias, he said.

But just as the Crown has hired an out-of-province prosecutor, experts say an outsider judge may also be needed.

At this point, it is unknown whether Mr. Bryant will choose to have his case heard in the Superior Court of Justice, where judges are federally appointed, or the Ontario Court of Justice, where Mr. Bryant appointed every judge confirmed on his watch.

Lawyers agreed that there is no chance the prosecution would allow the case to be tried by a judge Mr. Bryant approved.

Most of the court's judges were appointed before or after Mr. Bryant served and would have had “virtually no contact” with him, said Osgoode Hall Law School criminal law expert Allan Young, who also taught Mr. Bryant.

Still, he said, to avoid any appearance of bias, an out-of-province judge may be chosen.

Lawyers also wonder whether other factors might be at play.

Mr. Downes said some worry that police will be more favourable to Mr. Bryant in their investigation because, as attorney-general, he passed laws that police favoured, including a crackdown on street racing.

“They will need to be ultracareful in conducting a fair investigation,” he said.

But with all of the efforts to ensure the appearance of impartiality, some also wonder whether officials will unconsciously prosecute more vigorously.

“They bend over the other way, they overcompensate,” said veteran Toronto defence lawyer Michael Morse, who himself faced trial several years ago.

“I do not envy Mr. Bryant,” he said.





Readers should take careful note of the "thumbs up and thumbs down", the stats are very obviously being manipulated, parallel with an alarming number of posts that have all the signatures of professional posters with incredible writing skills, all to divert readers into reasoning favourable to Bryant.

It's no coincidence that Bryant has retained the same organization " to assist" as used by Brian Mulroney.


9/4/2009 9:32:26 AM


keating gun

So far the state seems to be going the extra mile on "fairness" for Mr. Bryant by waiving a bail hearing, but the real test will only come if Mr. Bryant is convicted and must face the Law Society of Upper Canada tribunals, as he would then be a lawyer with a criminal history, something the profession frowns on. Under Mr. Bryant's watch the tribunals were permitted to hide all LSUC tribunal decisions wherein the regulator lost, thus preventing all lawyers facing discipline from learning about caselaw that might help them. Even now, Ontario's current AG still turns a blind eye to hidden procedural motion decisions and the "in-your-face" conflict-of-interest for allowing the very same lawyer-bencher-corporate directors who voted to hide decisions to sit on tribunals as "impartial" adjudicators. Also with full AG capitulation, Ontario's court seat still co-habitates with the Law Society at Osgoode Hall, the only province in Canada to let its courts share space with the very tribunals they are supposed to supervise through court interventions. This rarely occurs here. In the past the AG has corralled law society cases at Osgoode but few brave the hostile Osgoode environment, hidden caselaw and obstructive staffs to appeal. With the Suprerior Court of Justice also handing off its deicisons to for publication, via the law society, many key law society decisons, civil and professional, that went against the society have also not been published. They are virtually secret. Not that so many exist mind you. If convicted, Mr. Bryant truly deserves to experience the corrupt lawyer discipline system he helped maintain. It would be natural justice in the best sense. Also, as a former AG, he might hold more sway in the Osgoode Hall courts and the possibility exists that some of the corruption would finally be ended by Mr.Bryant's sudden personal interest in fairness. On this issue, the public interest can't lose with Mr. Bryant as defendant.


keating gun - Wow, Thank you for your highly informative post. Bryant is part of the legal cartel and has very conveniently allowed the very worst in society to hide behind hidden decisions.

Under Bryant, Ontario Superior Court Judges have also increasingly failed to report decisions that would not reflect well for them. Virtually all the dirtiest most corrupt decisions in Ontario are hidden from public view by failing to report decisions.

It means, that Ontario is going down the slippery slope of secret court hearings that in many cases, result in the "ending of litigation" that is, by using corrupt means to prevent litigation, generally in favour of a a lawyer who is up against a self represented litigant.

Bryant's management has eroded legal rights and declared open season on anyone who the Cartel decide to flagrantly abuse their power, judicial or otherwise.