A former director of issues management at the Prime Minister's Office who was being cross-examined at the Mike Duffy trial may not have been acting improperly by chatting at the Ottawa courthouse with the current holder of the job, but it showed poor judgment, criminal lawyers say.
Chris Woodcock, a Crown witness at the trial, was spotted talking with Nick Koolsbergen, who is on leave from his PMO position and is working on the party's election campaign. Koolsbergen had been monitoring the trial for the past few weeks. Christopher McFarlane, another Tory staffer, had also been a constant presence at the trial.
"You'd think that there would be a level of common sense that the appearance of chatting up a witness during cross-examination would probably be frowned upon and taken with some suspicion," said Jason Gilbert, an Ottawa-based criminal lawyer.
"Why would they put themselves in that position to even be questioned. It's poor judgment."
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.
"Doesn't mean they have to take an oath of silence like a monk and they can't talk to anybody, but they certainly can't be talking about the case," Gilbert said.
And it certainly raises eyebrows if discussions are taking place between a witness and someone, like Koolsbergen, who would have a vested interest in the outcome of the case.
Speaking to reporters on Wednesday, Conservative campaign spokesman Kory Teneycke said the appearance of Woodcock and Koolsbergen chatting "is not great" but said the conversation was nothing more than an innocent "hi, how are you."
It's unknown what Woodcock and Koolsbergen discussed during the court breaks. Had they made small talk or even talked about the tone of the cross-examination — for example, how testy at times it got between Duffy's lawyer Donald Bayne and Woodcock — all that is fair game.
But Gilbert said if it could be established that they spoke about Woodcock's testimony, then that would be highly improper.
"It would compromise the balance of his testimony," he said. "It would then suggest he is attempting to maybe rehabilitate himself insofar as an answer he had given previously."
And if it was suggested to Woodcock that he answer a certain a way in response to a question, that could raise serious issues of coaching.
"Any suggestion to a witness still testifying as to how to frame their answers would be highly inappropriate and could constitute a criminal offence," said Joseph Neuberger, a Toronto-based criminal lawyer, adding that those charges include witness tampering or obstruction of justice.
Optics are bad
Neuberger agreed that the optics are bad when a witness under cross-examination is talking with someone outside of court.
"You can't prevent people from talking who know each other. However, it just appears wrong. While you're in court, while you're testifying, don't talk, don't hang out."
Many witnesses are accompanied by their own legal counsel when they come to court to testify, as was Prime Minister Stephen Harper's former chief of staff Nigel Wright when he appeared in the witness box.
Gilbert said those rules relating to discussing the content of testimony also apply to lawyers.
"It would be improper for the lawyer to be discussing the case or making any recommendations or counselling that witness at all during cross-examination."
Questions were raised when Wright admitted in court that he had been in contact, through BlackBerry, with his successor Ray Novak just two weeks before Wright testified.
But Neuberger said there's nothing improper about that, as long as Novak wasn't coaching Wright on what he should say.