As gripping as the Michael Bryant case has been, its circumstances are not new to Canadian courts.

Consider the following facts from an actual Canadian legal case:

A man is driving a vehicle at a very slow speed. Unexpectedly, an impaired person, who only moments before had been yelling angrily at the driver, jumps onto the side of his vehicle. The surprised driver tells the person to get off. He then hears a smash and sees that his mirror is broken. The impaired person falls off, under the vehicle’s wheels, and dies.

If you live in Toronto (or anywhere else in Canada, for that matter), you know these details bear strong resemblance to a recent case involving former Attorney General Michael Bryant and Darcy Allen Sheppard, a bike courier, that has not only gripped the city but also has been covered by media outlets internationally. It is hard to believe that the details set out above summarize an entirely different case that was recently considered by the Supreme Court of Canada. In our legal system, where courts are guided by the precedent of previous decisions, does the outcome of this case help us understand what might happen to Michael Bryant? Absolutely.

Briefly, to recap Bryant’s case, in less than five minutes on August 31, 2009, Michael Bryant went from a happy husband celebrating his wedding anniversary to the accused in a deadly confrontation on Bloor Street in Toronto. Sheppard, the bike courier, is alleged to have been impaired and to have grabbed onto Bryant’s vehicle or Bryant himself after exchanging angry words over something that had happened on the street. Within seconds, Sheppard fell from the side of Bryant’s moving vehicle and later died. As a result of this incident, Bryant was charged with two offences: criminal negligence causing death, and dangerous operation of a vehicle causing death.

To understand what these charges mean for Michael Bryant, let’s consider two aspects of the case that must be proved in court.

1. The standard of proof – beyond a reasonable doubt: Canada’s legal system is comprised of two main streams, civil and criminal. In Canadian civil courts, which deal with such things as medical malpractice, negligence and breach of contract, the standard of proof is on the “balance of probabilities.” In other words, once all the evidence is before the judge, he or she will decide what *probably* happened. However, in the criminal stream, where Bryant’s case will be heard, the standard of proof is much higher; the judge needs a lot more than “probably.” A criminal court must be entirely convinced to a moral certainty, or as we say, “beyond a reasonable doubt.” The evidence must establish guilt. Period.
2. Guilty Act and Guilty Mind: In order to prove the offence of criminal negligence, the Crown attorney must establish beyond a reasonable doubt that the accused’s driving conduct was a marked and substantial departure from that expected of a reasonable driver in the circumstances. Further, there must be proof that the driver showed a wanton or a reckless disregard for the lives or safety of other persons. In evaluating this component, the judge in a criminal negligence case looks for two elements in order to establish guilt: “actus reus” (a guilty act) and “mens rea” (a guilty mind).

Let’s focus on the guilty-mind element because the mental state of the driver is a critical aspect of these types of cases. In order to convict someone of criminal negligence, the Court must be satisfied, that the conduct amounted to a marked departure from the standard of care a reasonable person would observe if they were in the accused’s shoes. In other words, what would a reasonable person in that driver’s shoes in those particular circumstances have done? Awareness of the risk and danger is essential if the driver is to be convicted.

Let’s return to the facts that I set out at the opening of this article, which are from the case of R. v. McCaughan. It is a case that was considered by the Manitoba Court of Appeal in September 2008. The final decision to acquit the accused was then appealed to the Supreme Court of Canada, which in turn determined that it saw no reason to interfere with the decision from Manitoba’s Court of Appeal.

In R. v. McCaughan the driver of the vehicle was a professional truck driver. He was in a relationship with a woman who, for a variety of reasons, was angry with him and had followed him to where his truck was parked. Angry words were exchanged in the parking lot. The woman walked back to her truck and he climbed into his vehicle, intending to leave the parking lot of a Petro Canada stop on the highway.

As he pulled away, he looked out his right-hand window and saw the woman standing on the step outside the passenger door of his moving truck. He told her to get off, but kept moving forward onto the highway. He then looked to his left and heard a smashing noise. When he looked back to the right, the woman was no longer on the truck and his mirror had been broken off. He brought his rig to a stop and discovered that she had fallen under the wheels of the truck and had been killed. With a blood alcohol reading of .168, it was undisputed at trial that she was impaired at the time of the accident.

McCaughan was charged with criminal negligence in the operation of a motor vehicle causing death and dangerous driving causing death – the exact same charges that Mr. Bryant is now facing. The Manitoba Court of Appeal acquitted Mr. McCaughan on both charges, having concluded that, as the incident was caused not by wanton or reckless disregard but by a momentary lapse in care, the requisite guilty mind of the driver was absent. The driver had no opportunity to be aware of the risk and of the danger involved in his conduct. Therefore, there could be no conviction.

Does the outcome of this case and other cases decided by the Supreme Court of Canada help us in understanding what might happen in the case of Michael Bryant? Consider some of the evidence the Court will likely hear in Bryant’s case:

1. He was driving home with his wife from an anniversary celebration, moving slowly through an area under construction on Bloor Street.
2. While stopped, angry words were exchanged with Sheppard.
3. Sheppard appears to have been impaired and had just left a confrontation with police.
4. Sheppard struck Bryant’s vehicle with his courier bag.
5. Sheppard grabbed onto Bryant’s car, and possibly Bryant himself.
6. A struggle ensued, as the vehicle careened down the wrong side of Bloor Street.
7. Sheppard fell and was killed.

The trial judge will apply the standard of “beyond a reasonable doubt” and will look for evidence of Mr. Bryant’s state of mind during those terrifying seconds, as the car travelled west on Bloor Street. Having heard all the evidence, the trial judge will then ask an important question: What would a reasonable person in Bryant’s situation have done? Did Mr. Bryant even have a choice? Did he even have control of his vehicle? Who was responsible for these three people thrust into this terrifying position? Ultimately, the trial judge will ask himself/herself: Am I entirely convinced to a moral certainty of Mr. Bryant’s guilt in these circumstances? Based on the facts currently available, I believe the answer to that question will be no, and that Mr. Bryant will then be acquitted on both charges, just as the Court did with McCaughan.

As a final consideration, there is an extra difficulty with cases such as these. The McCaughan motor vehicle accident occurred on July 9, 2004. The Supreme Court of Canada rejected the appeal from the Manitoba Court of Appeal in September 2009, some five years after the accident occurred. Let’s hope that Mr. Bryant does not have to wait until 2014 to find out that he too is finally acquitted of these offences.