An active litigator

It’s mid-May and outside Ottawa’s Elgin Street Courthouse photographers and video camera operators linger around the riser erected for live TV hits — finishing coffee; chatting; unpacking gear. As the minutes tick down to 10:00 a.m., cameras are shouldered, focused and re-focused. 

By the time suspended Senator Mike Duffy is dropped curbside, the phalanx has grown to include reporters, producers, court spectators and smokers. Cameras whirr and click as Duffy shoulders his way to the courthouse entrance.

Duffy is inarguably the star of this show, having pleaded not guilty to 31 counts of fraud, breach of trust and bribery. But the best supporting actor is about to arrive.  

The pack surges again when defence lawyer Donald Bayne rounds the corner and strides towards the courthouse, towing a trolley stacked with briefcases and bulging black legal binders. 

Bayne has a wiry build that speaks to hours of triathlon training. At 70 years old, he is considered one of the leading criminal defence lawyers in Canada and reputed to be highly competitive, tenacious and a devil for details.

Duffy says when it became clear that his “situation was going to become potentially criminal,” he sought Bayne’s counsel, speaking at length with him about what had happened.

He describes Bayne as “a prodigious worker.” 

“He has a photographic memory. We spent days and days going through every aspect of every charge. We compared that with my diaries. I would say something along the lines of, ‘I think we dealt with this already,’ and he would say, ‘yes, it was on this day, in the third paragraph of this memo.’ There are hundreds of e-mails to be introduced as evidence. It is astronomical. And he has it all in his mind, all organized.”

By the time Duffy takes his seat in Courtroom 33, Bayne has already carefully arranged several binders around him. When he isn’t presenting or cross-examining, he resembles a lanky teenager in study hall, hunched over, scribbling furiously. When something catches his ear, he abruptly stops taking notes, and peers over the glasses perched on his nose.

Duffy will tell you his lawyer came out of semi-retirement to represent him. “That’s not quite true,” Bayne gently corrects. “I tend to do cases selectively now.” He still practises criminal law, just not at the same pace.

For the past several years he has been involved in defending Hassan Diab, the Ottawa university instructor extradited to France in connection with the 1980 bombing at a Paris synagogue. He no longer bills Diab, “because he can’t afford it. He and his wife are university professors. He couldn’t work once he was charged and his bail conditions basically made it impossible for him to get any job. So they had no income, she was on maternity leave, they just couldn’t afford to pay.”

But Bayne says he could not turn his back on what he calls “a very meritorious case.”

“To me it’s a wrongful conviction in the making that regrettably Canada has had a hand in.” 

Bayne is also professionally involved with his father-in-law’s real estate business, which prompted him to get his MBA, which he completed at Queen’s in 2000  (“I was the oldest guy in the class,” he acknowledges).

He agreed to represent Duffy because, he says, “it was an interesting case where a criminal investigation had been called for by some politically motivated people and I wanted to protect the man.”

Who those politically motivated people are, he says, “will come out in the evidence.”

Jon Doody sits next to Bayne during the Duffy trial. At 29, he is a junior at Bayne, Sellar, Boxall and may well be developing bruises on his right bicep given the number of times he gets a vigorous “a-hah!” finger jab or collegial backhanded thwack from Bayne when a piece of testimony resonates or exasperates. He says the case is a great learning experience.

“Don does cross-examination in a way that I don’t think many other lawyers do. He takes three days but he gets the points he needs and doesn’t leave until he does. And just the way he prepares — to be meticulous and aware of everything; to ask the right questions and not get pushed around by the Crown or the judge; to be a staunch defender of your client’s rights. He’s always very civil, always very polite.”

Journalist Christie Blatchford is covering the trial for Postmedia newspapers.
 
“If you’re in the sort of trouble Mike Duffy is in, I think he is exactly the right lawyer,” she says. “He’s almost pedantic. He just so doggedly repeats his mantra. Almost every day he’ll say, ‘this man is on criminal trial’ and he’ll whirl around and gesture towards Duffy. Or he’ll say, ‘this man’s liberty is at stake.’ I’m sure it’s quite deliberate but it’s also really effective because it reminds you of what is at stake. He can be tedious but he is just relentless. He never lets up.”

“Criminal law is what I’m suited to do,” Bayne says. “Active litigation and the concept of legal and human rights and individuals caught up in the law interests me.”

That includes public inquiries such as the Somalia, Maher Arar and Iacobucci inquiries, murder charges, war crimes and charges against corporations. Complex cases to be sure, but Doody says when his colleague presents or cross-examines, “he will always know more than you.”

“Don is old school,” says fellow criminal lawyer Michael Edelson.  He has known Bayne going on 40 years and worked alongside him on a number of high-profile cases.

“He does a lot of thinking about his cases,” Edelson says. “A lot of thinking about how he is going to lay traps for witnesses, how he’s going to approach witnesses. His cross examinations are typically thorough and lengthy. A lot of the time witnesses are caught off guard because they’re not expecting him to think about the case in a certain way. He’s hyper-competitive, which a lot of good criminal lawyers are by definition. He’s gonna duke it out in court.”

Despite his reputation, Bayne maintains he is not “a trial machine.” He remains active in sports — a passion carried over from his days playing football for Queen’s University; he attends his grandkids’ sports events and often drives them to school; he serves on a number of boards including the University of Ottawa Heart Institute.

“I’m not one of those lawyers who lives for the law,” he says. “I’ve got four kids, seven grandchildren. We have a farm [on Wolfe Island] and we would leave the day school gets out and wouldn’t come back until Labour Day. So I never worked in the summers.”

Having said that, he used part of his down time on a recent trip to the Bahamas to plow through transcripts of the Duffy trial. Bayne’s wife is also a lawyer, which he says allows for a certain amount of professional understanding, but admits, “she’s always trying to slow me down.”

“I’m up early and there are lots of nights when you don’t sleep well, you can’t turn your mind off. You can lie in bed but you don’t sleep because you’re mentally doing a cross examination,” he says. “It’s wearing.”

In 2006 Bayne received the prestigious G. Arthur Martin Award which recognizes “an individual in Canada who has made a significant contribution to criminal justice.” Bayne considered it a tribute to the team of “hardworking criminal lawyers across the country.”

“There are many, many fine and heroic lawyers in the country who take on tough cases and do them well with little notoriety. And often they’re disparaged for the work they do. So I think I represented all of those good lawyers. I’m not unique among them.”

“Traditional criminal law principles are about protection of people who are marginalized or made unpopular, whether it’s Hassan Diab — a Muslim in Canada — or Senator Duffy who has become kind of a convenient poster boy for every alleged misdeed in the senate. It’s a belief in the rule of law in the system. That’s really what it is. Many of the cases I’ve done over the years have been highly marginalized people, so it’s about important issues and causes.”