Conservative Party lawyer’s presence in robocall witness interviews may pose problems, lawyers say

Party lawyer asked robocall witness’s lawyer to step aside before interview, transcript shows by Stephen Maher and Glen McGregor, Post Media News, September 11, 2013, Ottawa Citizen
Canada’s chief electoral officer says Elections Canada needs greater investigative powers. Marc Mayrand says the investigation into fraudulent 2011 campaign calls was delayed due to people refusing to co-operate. Federal Conservative party lawyer Arthur Hamilton intervened to prevent another lawyer – former Conservative campaign manager Guy Giorno – from attending an interview with a witness in the robocalls investigation, interview transcripts show. A court document made public this week shows that Hamilton sat in on a series of interviews with key witnesses in the investigation into a fraudulent calls that sent voters to the wrong polling station in Guelph, Ont., on election day, May 2, 2011. … In an interview with one witness, Hamilton told Elections Canada investigators Allan Mathews and Ronald Lamothe that he was there after offering to take the place of Giorno. “One of the previous employments of (the witness) was at the Prime Minister’s office when Guy Giorno was chief of staff,” Hamilton said, according to the transcript. “And so Guy was planning to, pro bono, come with (the witness) to do what we’re doing today. And then after I spoke to Guy, it’s like, ‘Guy, I can’t tell you why but I’m a veteran on this so I’ll take (the witness) over if that helps.’ ”

Hamilton then addressed his comments to the witness, according to the transcript. “So you spoke to Guy,” he said. “You’ve spoken to your parents as well about this.” The witness said, “Yes.” Until the end of 2010, Giorno served as Prime Minister Stephen Harper’s chief of staff. He later co-managed the Conservatives’ 2011 election campaign. At the time of the interviews, Giorno had returned to his job practising public law with the Ottawa office of the firm Fasken Martineau. Asked last week if he had ever met with Elections Canada investigators, Giorno would say only that the party is co-operating with the investigation. The witnesses cannot be named because of a publication ban on the court document, filed by Mathews, which describes interviews he and Lamothe, conducted in March and April of 2012 – after news of the robocalls investigation became public.

An Ontario court judge agreed on Monday to vary the publication ban reporting of some details from the document, after a request from The Ottawa Citizen, aided by CBC and Global News. The sections of interview transcripts are not part of the court document filed by Mathews. Another witness told investigators he suggested to Sona that he stop telling people about what happened in Guelph. “Also, I clearly told him that after the phone calling incident he explained out, I said, ‘You should shut up and stop telling people this stuff.’

Hamilton interjected: “You can give the exact quote if you want.”

The witness said: “You should shut the f– up and stop telling people this.”

The same witness also told Mathews he was apprehensive about coming forward with what he knew about the Guelph robocalls and referred to fear for one’s job. He described a concern that if “things got out and I then I was — you know, making public accusations, you know, you let your fear run with you and then that would be embarrassing” for his employer, he told Mathews, according to the transcript. Hamilton has declined to comment on whether he was representing the witnesses during the interviews. In the court documents and the interview transcripts he is referred to as “counsel for the Conservative party.”

Defence lawyers say it is unusual for investigators to agree to have counsel for a third party sit in on witness interviews. But Elections Canada spokesman John Enright said Wednesday that witnesses can bring their own lawyers to interviews. “As is the practice with other enforcement bodies, an interviewee is not prevented from having legal counsel present during an interview if he or she desires,” he said. Hamilton declined to comment: ”As I am neither counsel for the prosecution nor the accused, it would be inappropriate for me to make any comment on the case being litigated in Guelph.” At least one of the witnesses felt that they did not have a choice as to who would represent them. In an electronic message seen by Postmedia News and The Ottawa Citizen, the witness writes: “My choice in the matter wasn’t exercised.” [Emphasis added]

Conservative Party lawyer’s presence in robocall witness interviews may pose problems, lawyers say by Stephen Mayer with files from Glen McGregor, Ottawa Citizen, September 10, 2013, Post Media News
The fact that Conservative Party lawyer Arthur Hamilton sat in on interviews with key witnesses in the robocalls investigation poses potential problems for the case against Michael Sona, defence lawyers said Tuesday. In sections of court documents made public for the first time on Monday, it was revealed that Hamilton was present for a series of interviews Elections Canada investigators conducted with the witnesses in March and April. The witnesses, who had all worked for Conservative MPs or senators, told investigators “that Michael Sona, in the period shortly after Election Day, advised several of his acquaintances of participation in the false calls made to Guelph electors,”according to a sworn statement from Elections Canada investigator Allan Mathews.

It is not clear what relationship Hamilton had to the witnesses. In the court documents he is identified as counsel for the party. He has declined to comment, as has Elections Canada. Sona, who was the director of communications for the Conservative candidate in Guelph, was charged in April with violating the Elections Act. He has publicly denied any involvement in the robocalls and says he is being used as a scapegoat by the party. If convicted, he could face five years in prison and a $5,000 fine. None of the allegations have been proven in court.

Defence lawyers say that it is unusual for the lawyer for a third party to sit in on interviews with witnesses. “I think that’s a question for the investigators, why they permitted that,” said Toronto defence lawyer Frank Addario in an interview on Tuesday. “What was the investigative imperative? Did the witnesses say they wouldn’t meet without a lawyer present. Did the lawyer say ‘We’re not making them available?’ ” Investigators don’t want a third-party lawyer in the room during such interviews, Addario said. “Why would you? There’s no duty of confidentiality at that point. You know the lawyer’s got to report back to the third-party client, which might itself be the target of the investigation.”

The Conservatives say that the fraudulent call in Guelph was the work of rogue operatives but opposition politicians suggest the party may be behind similar calls in ridings across Canada, which are the target of a separate investigation. Justice must not only be done but must be seen to be done, said Ottawa defence lawyer Lawrence Greenspon. “The presence of a Conservative Party lawyer during interviews being conducted by Elections Canada investigators takes away from the appearance of an independent investigation and therefore takes away from the appearance of justice,”he said in an interview Tuesday. “It is at the very least unwise for counsel representing a party affected by the investigation to be present during what should have been wholly independent interviews of witnesses.”

Ottawa defence lawyer Michael Spratt said investigators have good reason to not want lawyers in interviews with witnesses. “It’s highly unusual,” he said. “That’s almost never seen. Normally witnesses aren’t interviewed in the presence of their lawyer for the very reason that it potentially could contaminate the evidence.” Lawyers often avoid having multiple clients in the same case to avoid potential conflicts around sharing knowledge between them, which they may be duty-bound to do. “If Witness One says something that contradicts Witness Two, does he make Witness Two alert to the fact that there’s a conflict there?” said Spratt. “It can lead to problems with contamination of evidence possibly.”

But Toronto elections lawyer Jack Siegel, an active Liberal, says that Hamilton, a prominent lawyer with the law firm Cassels Brock, can be expected to follow high ethical standards.
“Problems with evidence would only arise if Hamilton would cross-pollinate what one witness said to another and taint or confuse their evidence or have them tailor it,” he said. “I can’t imagine anybody at the firm of the calibre of the one he’s at surviving very long if they engage in ethical lapses ever.”

Andrew Prescott, a Guelph campaign worker who handled voice broadcasting for the Conservative campaign during the election, spoke with Hamilton about his role in the campaign in December 2011, before news of the investigation became public, telling the party lawyer what he knew about the campaign’s use of robocalls. On Feb. 24, after news broke, Hamilton set up a conference call where the two men spoke to Mathews. Prescott, who says he doesn’t know anything about any wrongdoing on the campaign, says he was happy to have Hamilton’s help. “Having never had any legal issues ever, I was grateful for any guidance the party could provide,” he said. Under pressure from media scrutiny, Prescott subsequently took advice from friends and hired his own lawyer, who advised him not to do any more interviews with investigators. [Emphasis added]

[Refer also to:

2013: Alberta’s Court of Queen’s Bench Chief Justice Neil Wittmann Volunteers to Hear High Profile Fracking Case after Harper Government Promoted Justice B. L. Veldhuis

2009: Prime Minister Harper announces the appointment of Neil Wittmann as new Alberta chief justice ]

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