The flare that snagged Donald Bayne

Day 20 at #duffytrial saw the court revisit an old Wikipedia page

Suspended Senator Mike Duffy leaves the Ontario Court of Justice, in Ottawa

The question of what Donald Bayne is up to ceased this aft to be just a subject of diversion—of curiosity and puzzlement—and became a central, pressing consideration for the court.

Over these 20 days, while Bayne’s client, suspended Sen. Mike Duffy, sat passively in the wings of a process that will decide his fate, Bayne has been the senator’s avatar: loud, flamboyant, of alternative country-club charm and hostile, interrogation-room antagonism, but above all else, theatrical, a character seeking a curtain.

That flare appears just now to have snagged him.

    Court closed today on the question of a pretty insignificant bunch of papers, brought into court by a non-entity of a witness, but seized in the moment by Bayne as a fabulous way to make a point that he’s already made dozens of ways, usually more successfully.

    It’s hard to know why Bayne permits himself this failing. The proceedings in Courtroom 33, here in Ottawa’s Elgin Street courthouse where Duffy faces 31 charges of bribery, breach of trust and fraud, will be decided not by a jury, but by presiding Justice Charles Vaillancourt, whose career as a judge began 30 years ago in Sault Ste. Marie, Ont.’s small-claims court—and who has therefore seen it all (even smart, consummate performers like Bayne).

    It seems wrong to think Bayne’s been doing the vaudeville act for Vaillancourt’s benefit; it seems equally off to think he’s done it for us, the media.

    As we saw during Monday and Tuesday’s voir dire, Bayne has no problem subjecting court to endless tedium, but he also tends to pack flourishes in with the dreck: harsh grilling of witnesses, colourful photographs of his client with Prime Minister Stephen Harper, faux displays of absentmindedness, lining up a row of lecterns together into phalanx formation before the witness box.

    On April 17, though, during the strange appearance of the freelance journalist Mark Bourrie, Bayne may have gone a step too far.

    Crown prosecutors called Bourrie because he did some work for Duffy scrubbing the Internet of embarrassments the apparently thin-skinned senator for Prince Edward Island was too delicate to see remain on the web. Bourrie accepted a cheque for $500 for this work, signed by Gerald Donohue, who is Duffy’s pal, and who signed all kinds of money over to all kinds of people Duffy either owed, or felt like treating. Those cheques in turn were connected to accounts associated with two Donohue family businesses—Maple Ridge Media Inc. and Ottawa ICF—that prosecutors allege Duffy used to funnel money and bypass Senate oversight.

    Bourrie, one beneficiary of that Duffy largesse, was supposed to appear in Courtroom 33 simply to nod his head and avow to his having cashed a Donohue payment. But he wanted to do so much more. Rumpled in a low-grade Peter Falk-of-Ottawa sort of way, Bourrie bounded in and in a way dissimilar to just about anyone else seen here so far, seemed to relish his turn in the witness box, wanted to move into it for a while, and was very much reluctant to go. For some, there’s just nothing like a captive audience.

    “Has anyone dropped the F bomb in here yet,” he asked the court.


    After Bourrie did, he looked awful pleased with himself.

    Crown prosecutor Jason Neubauer, a mild-mannered guy congenitally averse to all forms of vanity, looked flummoxed by Bourrie and his eagerness to contribute his vast store of knowledge to these proceedings. Later, Neubauer seemed very much put off when Bourrie retrieved from somewhere upon his person a stack of papers, saying they contained the horrible contents of an old Wikipedia entry on Duffy. Why not look? Neubauer, probably wisely, turned his nose up, and focused instead on the matter at hand: that Donohue cheque.

    Poor Bayne, on the other hand, just could not help himself.

    As Neubauer reminded us today, during a revisiting of the issues that Bourrie’s appearance has since presented to this court, Bayne stood for cross-examination and immediately requested the material Bourrie proffered. Bayne made a great show of tearing through the many pages, and seemed to hew to a line of questioning based on their contents.

    Bayne’s bit of theatre, his willingness to flatter Bourrie and make something of the Wikipedia entry, allowed him to advance a narrative around Duffy’s role as a parliamentary figure, in the public eye and therefore a target, sneaking it in under the judge’s nose.

    When Vaillancourt asked at the time whether Bayne would enter Bourrie’s material as an exhibit, Bayne demurred. No one, he told the judge, deserves anything this awful on the public record.

    Then he returned the papers to Bourrie. He now says he never actually read them.

    When Crown prosecutors later collected the sheaf of stuff and studied it, they say they found nothing scandalous, vile or scurrilous, as the testimony suggested they would. Vaillancourt looked into the matter, and was forced to agree. It was pretty dry, he told the court. He appeared pretty disappointed.

    Today, seeking to enter the Bourrie papers into evidence, Neubauer quoted at length from a court transcript of the April 17 proceedings to argue how doing so would merely set the record straight. But, really, the whole affair seems part of a broader feud that’s developing between the Crown and the defence over how this case will be handled.

    The ammunition is procedural—long, over-stretched voir dires, the Bourie matter, body language. And it could get ugly.

    Bayne stood to answer Neubauer’s claims, but there were only 10 minutes left in the day, and Vaillancourt pushed the matter off until tomorrow morning. There was a sense in court that Bayne will be doing nothing less than defending his honour.

    It had been a strange few hours in court, all in all, a day that included an oddly ho-hum appearance, via telephone, by Ezra Levant, the testimony of Tory whip John Duncan, and the evidence of a breeder of Kerry Blue terriers, reached by telephone in a car in New Brunswick located next to an active set of railway tracks. The breeder did not appear useful to the Crown’s attempts to demonstrate how Duffy bought a puppy on the public dime.

    No matter how weird the day, though, it is Bayne’s habit of performing, and how it could get him into trouble, that everyone will remember.

    Court reporter Nicholas Köhler on the Duffy trial

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