Criminal Law

Former, current PMO staff speaking outside court is bad optics

Toronto criminal lawyer Joseph Neuberger says a former director inside the Prime Minister’s Office who was being cross-examined at the Mike Duffy trial may not have acted improperly by chatting outside court with another PMO staffer, but the optics are bad and it showed poor judgement.

"You can't prevent people from talking who know each other. However, it just appears wrong,” Neuberger tells the CBC. “While you're in court, while you're testifying, don't talk, don't hang out.”

The public broadcaster reports that Chris Woodcock, a Crown witness at the trial and a former director of issues management, was spotted talking with Nick Koolsbergen, who is on leave from his PMO position and is working on the Conservative election campaign. Over the last few weeks, Koolsbergen had been attending the trial as an observer, says the article.

“Witnesses are usually instructed by judges or counsel not to discuss their testimony with anyone while they are being cross-examined. Legally, there is nothing wrong with a witness, in the middle of being cross-examined, chatting with anyone while on break, during lunch, or back at home, even if their testimony may carry over to the next day,” says the CBC.

A spokesman for the Conservative campaign tells the CBC that the appearance of Woodcock and Koolsbergen chatting "is not great" but that it was nothing more than an innocent "hi, how are you."

It is unknown what the two men talked about, says the article.

Neuberger, partner at Neuberger & Partners LLP, says even if the matters relating to the trial weren’t discussed, it appears bad when a witness under cross-examination is talking with someone outside of court.

He notes that “any suggestion to a witness still testifying as to how to frame their answers would be highly inappropriate and could constitute a criminal offence."

Neuberger says those charges include witness tampering or obstruction of justice.

Questions were also raised when Prime Minister Stephen Harper's former chief of staff Nigel Wright admitted in court during the Duffy trial that he had been in contact, through BlackBerry, with his successor Ray Novak two weeks before Wright testified.

But Neuberger says there's nothing improper about that, as long as Novak wasn't coaching Wright on what he should say.

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