The lawyer who bested the combined might of the Ontario AG’s office and the RCMP in the criminal trial of Senator Mike Duffy says he was shocked by the uniformed media “maelstrom” that formed against his client — a bias which he says continues to this day.

Donald Bayne says that the entire experience has convinced him that something has to be done about elevating news coverage of the courts from vaudevillian info-tainment to accurate reporting — and that something might even be the creation of a “press judge”, as the Canadian Bar Association suggested in a 2016 article.

The stakes couldn’t be higher: the public’s right to get the facts rather than emotional rants from the media — and an accused’s right to be presumed innocent until proven guilty.

When asked by iPolitics if he had been ready for the media gauntlet both he and his client had to run for nearly three years in a case that pitted his client against public opinion and the PMO, Bayne didn’t beat around the bush.

“Absolutely not. I expected one-quarter of what the actual media experience was like. When I got involved, one of the reasons I didn’t expect the maelstrom was that I believed that anyone looking at the same emails would come to the same conclusion I had, and that Justice Vaillancourt did — that Duffy wasn’t behind this affair, the PMO was. I was shocked by the avalanche of charges and the coverage.”

Was the press sucking up to the PMO, egregiously and without facts — making a scapegoat of Duffy?

“That’s the way I see it,” Bayne said.

Bayne’s reflections on Duffygate are expressed in one sizzling chapter of a new book, being released today in Toronto. The book, More Tough Crimes: True Cases by Canadian Judges and Lawyers, is the third volume in the True Cases series.

The book’s forward was written by the Honourable Patrick Lesage, the former Chief Justice of the Superior Court of Justice in Ontario. Lesage knows a thing or two about media circuses and the courts, having presided over the infamous Paul Bernardo murder trial during his 29-year career. He would sometimes go to an empty church and pray to get through difficult moments.

The Duffy trial was emotional for Bayne too, as he duly recorded over three years in diaries:

“I absolutely, utterly worried at the outset that Mike would not live through the trial. But as the trial proceeded, he showed himself to be a real warrior and a reliable soldier. I was actually more concerned about Heather’s health [Duffy’s wife], because the negative media pressure was constant. All trials are a roller-coaster ride, but this one was punishing.”

Bayne’s chapter in the new book is entitled Mike Duffy: Trial by Media in a Post-Truth World. To this day, Bayne believes that his client had been tried and convicted already in the press, and therefore the court of public opinion, by the time he was charged nearly three years after the story of misbegotten expenses broke in late 2012. It later morphed into allegations of bribery and high political scandal.

It is hard to argue Bayne’s point. Duffy was relentlessly caricatured as a greedy, corrupt, conniving politician. He was called a “rat” and a “monstrous fraudster.” A giant 30-foot inflated balloon of the disgraced senator toured the country accompanied by a carnival-barker luring gawkers with his spiel: “Step right up ladies! Step right up gentlemen! Come see the Senator who nearly ate a government!” Bayne believes that the Duffy case is a graphic example of what happens when the mass media is “devoted to sensation, scandal and oversimplification.”

Bayne writes that prominent and respected journalists did not understand the basics of a criminal trial, such as the critical differences between examination-in-chief and cross-examination. They wanted faster action. One Maclean’s writer even had the nerve to complain that the slow and methodical unrolling of the evidence was ‘awfully dull’. Bayne writes that prominent and respected journalists did not understand the basics of a criminal trial, such as the critical differences between examination-in-chief and cross-examination. They wanted faster action. One Maclean’s writer even had the nerve to complain that the slow and methodical unrolling of the evidence was ‘awfully dull’.

In an attempt to head off a media lynching of his client, and to give the Crown something to think about before laying charges, Bayne took a calculated risk. He called a press conference on Parliament Hill. He presented some evidence to argue that there was another side to the scandal, and made it clear that he had further ammunition to back up his claim: Mike Duffy had committed no criminal offences whatsoever — he had just abided by the Senate rules (such as they were). “Nevertheless, on all accounts the press conference proved to be a complete failure,” he now writes.

That was because the media’s take-away from Bayne’s effort to re-balance the coverage, by producing some counter-evidence, didn’t alter the portrait it was painting of the senator by a single brushstroke. The storyline now was not that Duffy had acted within the rules, but that there was an even bigger fraud involving the PM and his office.

In his chapter, Bayne offers a quote from syndicated columnist Andrew Coyne, who once described Duffy as an “obnoxious character,” to make his point. “Donald Bayne may not have succeeded, in the course of Monday’s press conference, in lifting his client clear of the muck,” Coyne wrote. “But he has certainly dragged the rest of the Tory hierarchy into it.”

Through it all, said Bayne, “Duffy remained a villain” — partly because PM Stephen Harper continued to vilify him for collecting allegedly ineligible expenses. Then, in July 2014, the RCMP finally delivered the villainous senator’s head to the media. The Mounties held a glitzy press conference to announce 31 criminal charges against Duffy, including fraud, breach of trust and bribery. (Investigators had recommended nine charges, but someone in the Ontario AG’s operation apparently had a fondness for multiplication.)

From there, the Duffy trial was covered as though there was only one destination for the former broadcaster-turned-politician: jail. Bayne writes in his chapter that prominent and respected journalists did not understand the basics of a criminal trial, such as the critical differences between examination-in-chief and cross-examination. They wanted faster action. One Maclean’s writer even had the nerve to complain that the slow and methodical unrolling of the evidence was “awfully dull”.

“My job isn’t to make it exciting, it’s to defend,” Bayne told iPolitics. “The media wanted entertainment more than detailed facts and evidence. I didn’t take any of the comments like that personally. But what deeply troubled me was the extent to which the media missed the story.”

The way Bayne describes it, what the national press wanted most was the kind of entertainment offered up in Rome’s blood-spattered Coliseum. Duffy was not so much on trial as on display, with every possible flaw and wart thrown into sharp relief. As Bayne observed, his physique made his the perfect figure for caricature. The trial, which began on April 7, 2015. was described by Quito Maggi of Mainstreet Research as “some of the best political theatre in a generation.”

Despite the evidence presented by the senator’s lawyer — including meticulously assembled emails that revealed the true villains of the piece — the media remained committed to the narrative of Duffy’s guilt. That set the press up for an awkward moment. Justice Charles Vaillancourt found Duffy not guilty on all 31 charges. No crime had been committed with respect to the living expenses. All travel claims were deemed appropriate, as were the consultant payments. There was no bribe.

But even after all of that, one blue-chip columnist expressed her personal disdain for the judgement — Christie Blatchford of the National Post. Bayne quoted Blatchford’s words in his chapter:

“I cannot imagine how I could have borne the pleasure of Duffy and his lawyer Don Bayne, not to mention the self-satisfaction of Vaillancourt, had I been in the courtroom that day.”

Duffy’s astonishing acquittal on all charges was apparently not enough for some. As Bayne told iPolitics, good judges and lawyers let the dogs bark and move on. “Judges speak through their judgments. In the case of the Blatchford article, the Justice wasn’t about to dignify that and neither am I.”

Although Coyne depicted then-PMO Chief of Staff Nigel Wright as a “sympathetic” character, the facts led Judge Vaillancourt to a very different conclusion. The judge wondered why PMO staffers were engaged in all this activity to deal with the “Duffy problem” when they knew his living expenses might have been appropriate. It kept resonating with Justice Vaillancourt that Wright wanted the PM to know and be comfortable with the fact they were forcing someone to repay money “that (he) probably didn’t owe.”

Throughout the whole, tawdry affair, Duffy was kicking and screaming to have the issues dealt with in an appropriate forum, involving the appropriate people — a desire the judge himself seemed to share: “I agree that this entire ‘scenario’ was not for the benefit of Senator Duffy but rather, it was for the benefit of the government and the PMO. This was damage control at its finest.” In the judge’s opinion, it was not Duffy but the PMO, Nigel Wright and others who were “driven by deceit (and) manipulations …”

Bayne believes that the Canadian media simply had a ‘dearly held belief that Duffy was a grubby thief, with an inflated ego, making criminal demands, even when evidence to the contrary was disclosed in court.’ Bayne believes that the Canadian media simply had a ‘dearly held belief that Duffy was a grubby thief, with an inflated ego, making criminal demands, even when evidence to the contrary was disclosed in court.’

And then there was the matter of journalistic laziness. Bayne observed that the media was given an easy-to-read chronological booklet of emails when they were filed during the trial — the same emails the judge used to issue his acquittal in an appeal-proof decision. But that story was not told in the media. The media had made up their minds before they knew the facts, Bayne said, “and so the public followed suit.”

So what’s the big picture here? In his chapter, Bayne quotes investigative journalist Carl Bernstein from his New Republic article ‘The Idiot Culture’. In that article, the great Watergate reporter described the profound decline in media standards. Media coverage, Bernstein wrote, is “distorted by celebrity and the worship of celebrity; by the reduction of news to gossip, which is the lowest form of news; by sensationalism … and by a political and social discourse that we, the press, the media, the politicians and the people, are turning into a sewer … the failures of the press have contributed immensely to the emergence of a talk-show nation in which public discourse is reduced to ranting and raving and posturing.”

Although Bayne notes that there are lots of good journalists, he drew a line between Bernstein’s warning and Duffy’s experience.

“In Mike Duffy’s case, what are pre-trial depictions of an accused person, entitled to be presumed innocent and facing criminal trial, as an ‘obnoxious jerk,’ a ‘rat’ who had ‘cadged ill-gotten’ expense money, other than intemperate talk-show ranting? Is it serious, reflective journalism to give national media prominence to a demeaning, carnival stunt blow-up doll, or is it, as Bernstein argued, the descent of the media into the sewer?”

To reinforce his point, Bayne quotes from ‘The Art of the Lie’ in The Economist [September 10, 2016] about the post-truth world of the early 21st century: “Post-truth … picks out the heart of what is new: that truth is not falsified, or contested, but of secondary importance … Feelings, not facts are what matter … Presented with evidence that contradicts a belief that is dearly held, people have a tendency to ditch the facts first.”

Bayne believes that the Canadian media simply had a “dearly held belief that Duffy was a grubby thief, with an inflated ego, making criminal demands, even when evidence to the contrary was disclosed in court.” The hundreds of emails, the complex administrative rules of evidence, were … well, complex. Deciding Duffy’s guilt in advance of the facts was was so much simpler.

Television, which Bayne describes as the “master of the superficial,” has focused on sensational and scandal-driven stories that pander to audience “interests.” Bayne asks: “Does this not promise more of what happened in the Duffy case? In a post-truth world, does anyone care so long as it’s entertaining?”

And there is a darker implication for the system. Bayne fears that complex criminal cases will be “portrayed in a way that causes the public to doubt the accuracy or integrity of the criminal justice system.” The rule of law is wobbling when judges are perceived as out of touch with ‘common sense’. “This, in turn, weakens respect for the rule of law, the foundation of Western democracy.”

Bayne believes there is a communications gap between the justice system and the Canadian public, a potentially dangerous one that includes a fuzzy perception of the bedrock importance of the presumption of innocence. He suggests in his chapter that a “press judge” coiuld be appointed to act as a liaison between the courts, the media and the public to educate everyone about the fundamentals of the judicial system. But Bayne has been around too long not to see the pitfalls.

“I see the reason for it, but I also think I expressed concerns. It would take a very unique and special person of enormous, unimpeachable credibility to make it work. Otherwise that person would be seen as a mouthpiece in defence of the judicial system. It comes down to an educational issue. There is less and less respect for the rule of law these days. We simply have to instil respect for the Charter and the entire legal system.”

Recent developments in the Wright/Duffy affair help make Bayne’s point. Duffy was viewed by the RCMP as “the primary focus” of the investigation. The Mounties investigated Nigel Wright for four charges, including fraud, breach of trust and bribery of a judicial officer. Ultimately, Nigel Wright remained an “unindicted co-conspirator” in the RCMP probe who was not charged, ostensibly in order to get his testimony for the Duffy trial.

And so, the final irony: It was federal ethics commissioner Mary Dawson who gave Nigel Wright the only punishment he ever received for his lead role in forwarding the payment to Duffy, not to mention the gross manipulation of the Senate by the PMO he led. Dawson found that Wright broke the Conflict of Interest Act when he gave Duffy $90,000 to repay the Senate money he didn’t owe. In making her findings, Dawson said a remarkable thing: “Mr. Wright was improperly furthering Sen. Duffy’s private interests …”

Not so. Remember what Justice Vaillancourt said in his judgement acquitting Duffy on all charges at this trial: “I agree that this entire ‘scenario’ was not for the benefit of Senator Duffy but rather, it was for the benefit of the government and the PMO.”

When asked about Dawson’s obliviousness to a finding of fact in a criminal case in her ruling on Nigel Wright, Bayne was flummoxed.

“I can’t understand it. It is a view that continues to be portrayed almost laughingly, that Duffy is a fraud and a crook. That speaks to the damning impact of first impressions. The media and the government created those, through narratives that were like attack ads. That remains the dominant image in the public’s mind.

“You can win in court on the evidence, but it’s almost impossible to turn around the big ship of the media.”

Those who write the first rough draft of history ought to be offering something better than a dive into the sewer.

The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.