The man who successfully defended Mike Duffy in criminal court says he went to the media nine months before his client was charged in an effort to control the narrative and to stop those in the Senate who he says were driving the message that there was a scandal to be uncovered.
Donald Bayne admits his attempt to change the public characterization of Mr. Duffy was less than successful.
One of the big lessons coming out of the lengthy case was that "when the media develop the story line, that's a ship, like a cruise liner, that's very hard to turn around," Mr. Bayne told fellow lawyers on Sunday morning at a meeting of the Canadian Bar Association. "And the story line of Duffy from Day One was 'corrupt, greedy, fat, easily cartooned man.'"
Mr. Bayne, a lawyer with four decades of experience, took part in a panel with Jocelyn Speyer, the lawyer for the coroner during the inquest into the 2007 death in prison of troubled teenager Ashley Smith. She was also the Crown attorney in the trial of three members of the Shafia family who were accused of killing four other family members in Kingston, Ont., in 2009. They talked for an hour about the challenges of litigating high-profile cases.
Mr. Bayne explained the media strategy he devised for Mr. Duffy – most of which consisted of ensuring that neither he nor his client would say anything outside the courtroom that would make it to television, radio, the Internet or newsprint.
But, in October, 2013, before Mr. Duffy had been charged with 31 counts of fraud, bribery and breach of trust, and as the Senate was preparing to suspend him and two other senators over allegations of improper expense claims, Mr. Bayne took the opposite tack. He held a news conference on Parliament Hill to say that the office of former prime minister Stephen Harper had intervened directly in the Senate expense affair and had orchestrated a plan in which Mr. Duffy would repay past claims, even though the senator believed they had been made appropriately.
"We were really trying to reach a select group: the Senate," said Mr. Bayne. "I thought there were, at that time, certain members of the Senate directed by the PMO, who were considering inappropriate action: suspending senators without a hearing, without any evidence, without any due process, a significant penalty – depriving of a job, depriving of an income. And we wanted to get some of the evidence out."
At that news conference, Mr. Bayne quoted from a series of e-mails that he said would help shed light on the controversy. "I would say it was, at best, marginally successful with the media, who were most fixated on the fact that they couldn't get handed over to them all of the evidence at that point," said Mr. Bayne.
As for the indirect entreaty to the Senate, he said, "I frankly never thought there was a criminal case against Mike Duffy and I hoped that we could change the narrative in the Senate [with those] who were driving this message of scandal and impropriety. And, if we could change it there, we could stop the criminal process."
But that did not work out as Mr. Bayne intended. The charges were laid and the year-long trial of Mr. Duffy began on April 7, 2015.
Navigating his client through the hoard of microphones, cameras and digital recorders was daunting, said Mr. Bayne.
"You are in the middle of what is really a chaotic herd and they are shouting your name and shouting questions at you, there is a pressure that is unique," he said. On the first day, Mr. Duffy, whom he described as a "great client," and someone who "was dignified and even courageous throughout the trial, despite what people were saying about him," suggested that they stop and give the media 10 minutes. Mr. Bayne said he angrily shut that idea down.
"I didn't want to talk on the record and I didn't want to be quoted," he said. "And Senator Duffy, with the exception of that one crazy moment, hasn't before and he hasn't after … on the record."
Ms. Speyer said Crown attorneys have an advantage because their offices are in the court house.
"So we have the ability to avoid, as we must, that kind of initial intense media scrum," she said. "We recognize that [media coverage] is necessary but it is intensely distracting and it's very nice to be able to avoid it at that stage of the proceedings."
As the trial went on, Mr. Bayne said he learned which reporters he could trust, and which he could not. In the case of the former, he would answer questions, without being quoted directly, to further their understanding of the complex legal issues and potentially to improve their portrayal of Mr. Duffy.
But it is never really possible to control the public narrative, said Mr. Bayne. Even today, he said, there are editorials being written that say Mr. Duffy was culpable of the crimes he was alleged to have committed and "it doesn't matter that he had a public trial and was found not guilty on everything."