The Ken Murray Case: Defence Counsel’s Dilemma

Article Published by Canada Law Book in the Criminal Law Quarterly, Vol. 47, pg. 41
Author: Austin Cooper, Q.C[1]

About 45 years ago a man came into a lawyer’s office and retained him to defend him on a charge of capital murder.  It was the middle of the night.  The lawyer (who later became a judge) determined that there was indeed a warrant out for his client’s arrest for murder, and advised him that he must surrender to the police.  However, the lawyer noticed that the front of the client’s shirt was covered with blood.  He suggested that the man remove his shirt; the lawyer put it in his file.

When the accused surrendered himself to the homicide squad, of course the first thing they noticed was that his shirt was missing.  (It was February and very cold outside.)

The lawyer became concerned as to whether he had acted properly in putting the bloody shirt in his office file, and he called the late Arthur Maloney, then a prominent criminal lawyer, and sought his legal advice in confidence.  Mr. Maloney, who in turn became concerned, phoned Arthur Martin, the then Dean of the Criminal Bar, and retained him to assist in the opinion.  Ultimately John Robinette, Charles Dubin and Joseph Sedgwick were consulted about the ethical problem.  Those notable counsel, all of whom were Benchers of the Law Society, then met in an office at the top of the Canada Life tower in Toronto on a Saturday morning to consider the joint advice they should give.  From atop the tower the advice came down to the lawyer that he should deposit an envelope with the shirt in it on the Senior Crown Attorney’s desk on the following Monday morning, without disclosing where the shirt came from.  Then he should withdraw from the case as he might be a witness, and he should promptly advise his client as to what he was instructed to do.

At that time, there was no jurisprudence in Canada that provided direction, and the Rules of Professional Conduct in Ontario were largely silent on the issue.  In the circumstances the lawyer felt he had no option but to follow the advice and on the Monday morning he instructed another lawyer to put the envelope on the Crown Attorney’s desk without revealing who had retained him; he then withdrew from the defence.

After that, opinions of prominent counsel were expressed at panels conducted by the Law Society or the Advocates Society during which it was discussed what should be done with a “bloody shirt” or “smoking gun” that might be tendered to counsel in a hypothetical murder case.  Some of those counsel were involved in providing the opinion in the original “bloody shirt” case.  There were also commentaries on the issue in articles published in legal journals.

For example, in 1969 the Law Society sponsored a program entitled Defending a Criminal Case.  As part of the program a panel of leading lawyers dealt with some ethical issues confronting counsel, including one in which a hypothetical client puts a gun on his lawyer’s desk after retaining him on a charge of murder and says. “This is the gun I shot him with.”  The panelists were asked what the lawyer should do with the weapon.  One of them, the noted counsel Joseph Sedgwick, Q.C., is recorded as saying:[2]

Certainly it is not an easy question to answer.   Counsel is, of course, an officer of the  court and as such he owes a duty to the court and certainly he owes a duty not to conceal or destroy very important evidence and also if he aids in concealing or destroying evidence he may very well put himself in jeopardy as an accessory after the fact under Section 23 of the Code which applies to persons, and lawyers, I suppose, are persons; what the visitor may tell counsel, that the statement “This is the gun I shot him with”, is a privileged communication, but the gun, the physical object, is a piece of evidence and as to it different  considerations may well apply.  For myself I’d be strongly inclined to hand it back without any advice as to what he should do with it.  But if he wouldn’t take it or if he ran away before the lawyer could collect his senses and that might well happen, then I think the lawyer should consider handling the gun with great care so as not to either leave any fingerprints on it or obliterate any that might be there and then deliver it to the policy or preferably, I think, to the Drown attorney saying merely that a person whose name is cannot divulge left the gun in his office.  And then if the man is later arrested and charged with murder, in view of the difficult position of the first lawyer, he should of course decline the defence if it is offered to him.  And then if he is subpoenaed as a witness it will be for the trial judge to decide the extent of his privilege as counsel, particularly with relation to the delivery of the gun.  That’s the best I can do for you except to add that a not unsimilar case did arise within the last five or six years.  I and some other lawyers were consulted and that’s about the advice that we gave to the lawyer.

The esteemed g. Arthur Martin (later a Justice of the Ontario Court of Appeal), in an address to the Advocates Society in 1970 entitled “the Role and Responsibility of the Defence Advocate” discussed a similar problem in this way:[3]

A man enters a lawyer’s office and says that he has just killed a man and expects to be arrested shortly for murder.  He requests the lawyer to represent him and the lawyer agrees to do so.  The client pulls a pistol out of his pocket and drops it on the desk in front of the lawyer and says: “this is the gun I shot him with.”  What should the lawyer do?  If he says: “take the gun and come back after you have disposed of it”, he has committed a criminal offence unless, of course, he can persuade a jury at his own trial that his intention was merely to instruct the client that he should leave the pistol at his residence so that it would be available to the police under a search warrant.  If he takes possession of the pistol and puts it in his desk or vault a serious problem is created.  Obviously, if he buried the pistol in his backyard he would be an accessory after the fact.  If he puts it in his desk or vault, may it not be argued that he has just as effectively concealed it?

The matter might, I suggest, be quite different if the defence was accident and counsel required the pistol in order to have it examined by a gunsmith with a view to establishing that it had a defective mechanism causing it to be likely to discharge accidentally.  Even under these circumstances he should, in my view, notify the prosecution well before the trial of his possession of the pistol.

It is obvious that there are many areas in connection with the defence of criminal cases where little guidance can be found in the rulings of the governing bodies of the legal profession, the case law, or in other authoritative material.

In my view the time has come for the governing bodies of the legal profession to establish a specific code of professional conduct with respect to the defence function.

The recent decision in the case of Ken Murray was keenly awaited by some members of the criminal bar because they hoped it would settle judicially the rules as to how lawyers should deal with evidence in their possession that incriminates their clients.

In the Murray case[4] it was proved that on May 6, 1993, after he was retained by defend Bernardo for domestic assault and a number of rapes in Scarborough, and while a police investigation was ongoing for two murders, on Bernardo’s written instructions, Mr. Murray retrieved six videotapes from the bathroom ceiling on the second floor of the house that Bernardo occupied with his wife, Karla Homolka.  He was with his junior and a law clerk, and they made a pact not to reveal to anyone what they had found.  Murray said he felt he had found a “bonanza” for the defence.  The tapes were locked in a safe in his office.  Twelve days later, on Bernardo’s written instructions, Mr. Murray viewed the tapes and made a copy that he kept in a secure place.  Two of the tapes (the “critical tapes”) were horrific depictions of gross sexual assaults on Leslie Mahaffy and Kristen French, two young women who had disappeared from their family homes and whose bodies had been found in circumstances that suggested homicide.  The tapes demonstrated that Bernardo was the prime culprit in the assaults while Karla assisted in them and in their videotaping.  The tapes were circumstantial evidence that Bernardo killed the two girls and hard evidence that he sexually assaulted two others, Tammy Homolka and Jane Doe.

Also portrayed on the two critical tapes was Karla administering a noxious inhalant to her sister Tammy Homolka and to a woman identified as Jane Doe.  While Tammy and Jane were unconscious, Bernardo could be seen sexually assaulting them.  The inhalant ultimately led to Tammy’s death.  On the tapes Karla could be seen subsequently luxuriating in the death of her sister while she and Bernardo made love in her sister’s bed.

Four of the tapes (the “non-critical tapes”) showed Karla performing sexually provocative acts, once with a prostitute, and once while play-acting for the camera, during which she made sexually explicit comments.  It was later submitted that the critical tapes demonstrated that Karla was guilty of the murder of her sister and all the tapes put the lie to Karla’s statements to the authorities that she was an abused wife who was under the  control of her husband.

In May 1993, Karla Homolka negotiated with the prosecuting authorities and ultimately a deal was struck whereby she would plead guilty to manslaughter in respect to the deaths of Leslie Mahaffy and Kristen French.  The facts regarding the death of her sister Tammy would be read in during her sentencing hearing, and the crown and defence would jointly submit that imprisonment for 12 years would be an appropriate sentence for her.  She agreed to be interviewed by the police and to give evidence for the prosecution at Bernardo’s trial for murder.  Ultimately, the deal was implemented, and Karla was sentenced to 12 years.

Mr. Murray held the tapes for some 17 months; it was his evidence that he intended to sue them after Bernardo’s preliminary hearing to attempt to negotiate a plea for him, or, at trial, to demonstrate that it was not Bernardo who killed Leslie Mahaffy and Kristen French, but Homolka.  That was Bernardo’s defence from the outset.  He intended to use the non-critical tapes to show that Karla was not a battered wife who was coerced into participating in Bernardo’s sexual crimes’ she was a willing participant in gross sexual conduct.  Murray felt that he could hold the tapes in his file to show at trial that Karla was the actual killer of the two girls.

However, in August 1994, Bernardo’s instructions changed.  He maintained that he had no contact with the two victims and he instructed Murray to suppress the videotapes (which clearly demonstrated Bernardo’s involvement with the victims).  Mr. Murray arranged for John Rosen to take over the defence of Bernardo, and applied to the trial judge to be removed from the record as counsel for that accused.  He sought the advice of the Law Society as to what he should do with the videotapes, and was advised in writing to turn them over to the judge presiding at the Bernardo trial.  He attempted to do that, but ultimately the tapes were turned over on consent to Bernardo’s new counsel, John Rosehn, with the approval of the court.  Mr. Rosen, about 12 days afger viewing them, turned them over to the police.

At Bernardo’s trial, the videotapes were introduced into evidence by the prosecution.  Karla Homolka was vigorously and effectively cross-examined by defence counsel to demonstrate that she was not an abused coerced wife who unwilling indulged in sexual activity with the victims, but a person who enjoyed sexually assaulting them and could be their killer.  However, Bernardo was convicted by the jury of murdering the two girls.

Subsequently, Mr. Murray was charged with attempt to obstruct justice for concealing the critical tapes for 17 months.  Apparently, the prosecution had no quarrel with M. Murray’s handling of the non-critical tapes.  However, it alleged that his retention of the critical tapes for 17 months constituted an attempt to obstruct justice because they constituted incriminating evidence of Bernardo’s murders, and the defence had no legal right to conceal their existence for the months preceding the Bernardo trial . Mr. Murray took the position that he was legally entitled to retain all the tapes to use at trial in his client’s defence.  Thus the legal issue arose as to his right to retain the critical tapes for the defence.

After a trial that continued for seven weeks, Justice Patrick Gravely delivered written reasons for acquitting Mr. Murray,.  However, his decision did not address all the parameters of the problem involving counsel’s obligations as to incriminating evidence.  His reasons did refer to the dearth of legal authority in Canada on the issue and the articles and comments by lawyers on panels that sough to address it, and reflected that if Mr. Murray had consulted them he might have been “confused”.  Justice Gravely characterized the videotapes as being “products and instrumentalities of crime” which were ‘far more potent hard evidence than the oft-mentioned “smoking gun” and “bloody shirt”.[5]  They were dramatic evidence of Bernardo’s crimes.  They were not covered by the solicitor-client privilege.  He cited the Canadian writes and panelists that dealt with what lawyers should do with “bloody shirts” and “smoking guns” and concluded that although Mr. Murray perhaps had the right to retain the tapes for a reasonable time to view them or test them (although testing them was not contemplated), he had no right to conceal the tapes until Bernardo’s trial.  Because returning the tapes to Bernardo or to the place where he obtained them was not possible, he had three options:  to turn them over to the authorities, or to turn them over to the court, or to notify the authorities of their existence, and then litigate the issue whether he could retain them in the face of a search warrant.

Justice Gravely held that the concealing of the tapes for 17 months until Bernardo’s trial had a tendency to obstruct the course of justice, and therefore the actus reus of the offence was proved.  On the issue of whether Mr. Murray willfully intended to obstruct justice, because it was feasible that Mr. Murray could have used the tapes for the defence and may well have believed that he had no obligation to disclose the tapes until the trial, he found the necessary mens rea was not proved.  Accordingly, he found him not guilty.

For those of us who practice in the criminal law, there are still ethical and practical problems associated with the possession of physical evidence that might be considered inculpatory of our clients.

For example, suppose a client charged with fraud or tax evasion delivers 50 cartons of documents to your office and tells you they assist in her defence.  They include correspondence, books of account, personal diaries, investment strategies, etc.  Should you take them or should you suggest that the client keep them in case there may be inculpatory documents among them?  If, as I expect many responsible lawyers under the present practice would, you decide to take them and to spend dozens of hours reviewing them, what is your responsibility if you should find among the many papers three letters that are evidence that inculpates the client?  Suppose that they may have some minimal value for the defence in the context of the other documents in the cartons.  What is your legal (and ethical) obligation in respect to those letters?  Suppose, on the other hand, they are “smoking guns” in the sense that they are instruments by which the client might have committed tax evasion, and therefore powerful evidence of guilt.

Can you retain them, even though you realize you probably will never use them at the trial?  Should you return them to your client with instructions to keep them safe and not to destroy them even though they hurt her case severely?  Are you obliged to turn them over to the prosecution anonymously, or at least to notify the prosecution of their existence?  Are you required to withdraw from the defence because you may be a witness?  If the principles in the Murray decision have applicability to documents, perhaps you have the obligation to turn them over, or at least to notify the authorities.  The intention to conceal them permanently may be alleged to be not only unethical, but criminal.  Is there a difference in the obligations of counsel with respect to documents as opposed to guns, knives and other hard evidence of criminality?  That is a distinction that has been made by some commentators.

A line of American authorities, which was referred to by Justice Gravely, holds that instruments of crime such as guns or knives and other inculpatory evidence of crimes given to attorneys by their clients are not covered by solicitor-client privilege.  Or, even if they are privileged, they must be turned over to the prosecution while the confidentiality of the source of the evidence is maintained.  In other words, although the attorney is required to produce the evidence to the court, the prosecution may not lead evidence to prove that the gun or knife came from the defendant’s possession.  But, as we shall see, there may be exceptions even to that rule.

The seminal U.S. case is State v. Olwell,[6] decided by the Supreme Court of Washington in 1964.  The Olwellcase involved a coroner’s subpoena issued to an attorney, which demanded that he produce all knives in his possession relating to three persons, one of whom was his client.  The knife had come into the possession of the attorney after he was consulted by his client’ it was a possible murder weapon.  The attorney refused to comply with the subpoena, claiming solicitor-client privilege, and he was cited for contempt by the coroner.  He appealed to the supreme Court of Washington, which held that the knife itself was not protected by solicitor-client privilege.  The court said:[7]

We are in agreement that the attorney-client privilege is applicable to the knife held by the appellant, but do not agree that the privilege warrants the attorney, as an officer of the court, from withholding it after being properly requested to produce the same.  The attorney should not be a depository for criminal evidence (such as a knife, other weapons, stolen property, etc.), which in itself has little, if any, material value for the purposes of aiding counsel in the preparation of the defence of his client’s case.  Such evidence given the attorney during legal consultation for information purposes and used by the attorney in preparing the defence of his client’s case, whether or not the case ever goes to trial, could clearly be withheld for a reasonable period, should, as an officer of the court, on his own motion turn the same over to the prosecution.

We think the attorney-client privilege should and can be preserved even though the attorney surrenders the evidence he has in his possession.  The prosecution, upon receipt of such evidence from an attorney, whether a charge against the attorney’s client is contemplated (presently or in the future), should be well aware of the existence of the attorney-client privilege.  Therefore, the state, when attempting to introduce such evidence at the trial, should take extreme precautions to make certain that the source of the evidence is not disclosed in the presence fo the jury and prejudicial error is not committed.  By thus allowing the prosecution to recover such evidence, the public interest is served, and by refusing the prosecution an opportunity to disclose the source of the evidence, the client’s privilege is preserved and a balance is reached between these conflicting interests.

The court said further:  “The evidence in the present case would be protected for a reasonable period of time if it is of value to counsel in the preparation of the defence of the client’s case.”[8]

However, in the circumstances, the court found the subpoena to be defective and therefore dismissed the contempt charge against Mr. Olwell.

On the other hand, in a subsequent case in California,[9] a lawyer who was told by his client in a murder and robbery case that he had taken the victim’s wallet, removed the money and put the wallet in a trash can behind the client’s house sent an investigator who then found the wallet and brought it to counsel.  The lawyer then examined the wallet and turned it over to the police.  A subpoena was issued to the investigator to testify for the prosecution as to where he found the wallet.  Defence counsel at trial argued that although the wallet itself was not privileged, its location was, and that the prosecution should be denied the opportunity of proving the wallet was in the trash can because the source of that information came from defendant in a privileged communication.  He cited the decision in Olwell.  The court agree that the communication was privileged, but refused to apply the Olwell ruling to exclude the evidence even though the defendant was the source of the information as to where the wallet could be found.  The court held that having been instrumental in altering or removing the physical evidence of the wallet, and thereby preventing the police from finding it later in the garbage can, the defendant could not invoke the claim of privilege to prevent disclosure of where the wallet was found; in effect, by removing the wallet, the defence had “destroyed” critical information.  Accordingly, the prosecution was entitled to prove that the wallet was found in the trash can behind the client’s house.

In a later case in 1978 in Alaska,[10] the defendant was charged with kidnapping and multiple rapes.  A third person gave the defence attorney a written plan for the kidnapping drawn by the accused.  Counsel returned the plan to the man who had given it to him, who immediately turned it over to the police.  The attorney then resigned from the defence.  He was called as a witness against his former client to prove his receipt of the plan from the third party and its connection to the accused.  The defendant was convicted at trial and argued on appeal that his right to adequate representation was violated by his lawyer advising the state of the existence of the plan.  The court held that the attorney had not provided ineffective representation to the defendant; it extended the Olwell reasoning to documents and decided that the attorney was not entitled to retain possession of the plan.  Failure to produce the plan would have been a criminal offence under an Alaskan statute that prohibited concealment of evidence.

All of the American cases I have referred to involve incriminating evidence that apparently had no value for the defence.  There have been a number of articles in legal publications in the United States discuss the Olwell line of cases.  Some of them are critical of the cases because of the burden they put on defence attorneys and the resulting  impairment of their ability to provide their clients with proper defences.

In 1993 a blue ribbon panel of circuit chief justices and judges, prosecutors and defence counsel among whom was the noted legal ethicist and counsel Sam Dash, who was counsel to the Senate Watergate Committee and ethics advisor to Kenneth Starr, the Special Counsel appointed to investigate President Clinton) recommended to the American Bar Association standards of ethical conduct for defence attorneys.  Among them were standards governing the the possession and use of incriminating evidence.  The association adopted those standards, and they are published.  Of course they are not binding in Canada; nor are they binding on courts in the United States.  But they purport to advise on proper conduct for the membership of that prestigious and influential association.

I have reproduced Standard 4-4.6.[11]

Standard 4-4.6  Physical Evidence 

  1. Defence counsel who receives a physical item under circumstances implicating a client in criminal conduct should disclose the location of or should deliver that item to law enforcement authorities only:  (1) if required by law or court order, or (2) as provided in paragraph (d).
  2. Unless required to disclose, defence counsel should return the item to the source form whom defence counsel received it, except as provided in paragraphs (c) and (d).  In returning the item to the source, defence counsel should advise the source of the legal c onsequences pertaining to possession or destruction of the item.  Defence counsel should also prepare a written record of these events for his or her file, but should not give the source a copy of such record.
  3. Defence counsel may receive the item for a reasonable period of time during which defence counsel: (1)intends to return it to the owner; (2) reasonably fears that return of the item to the source will result in destruction of the item; (3) reasonably fears that return of the item to the source will result in physical harm to anyone; (4) intends to test, examine, inspect, or use the item in any way as part of defence counsel’s representation of the client; or (5) cannot return it to the source.  If defence counsel tests or examines the item, he or she should thereafter return it to the source unless there is reason to believe that the evidence might be altered or destroyed or used to harm another or return is otherwise impossible.  If defence counsel retains the items, he or she should retain it in his or her law office in a manner that does not impede the lawful ability of  law enforcement authorities to obtain the item.
  4. If the item received is contraband, i.e., an item possession of which is in and of itself a crime such as narcotics, defence counsel may suggest that the client destroy it where there is no pending case or investigation relating to this evidence and where such destruction is clearly not in violation of any criminal statute.  If such destruction is not permitted by law or if in defence counsel’s judgment he or she cannot retain the item, whether or not it is contraband, in a way that does not pose an unreasonable risk of physical harm to anyone, defence counsel should disclose the location of or should deliver the item to law enforcement authorities.
  5. If defence counsel discloses the location of or delivers the item to law enforcement authorities under paragraphs (a) or (d), or to a third party under paragraph (c)(1), he or she should do so in the way best designed to protect the client’s interests.

As one of can see, Stands 404.6(c) recommen2ds generally that defence counsel should return the item to the source from which they received it.  Of course, as Justice Gravely commented, in Mr. Murray’s situation, he was unable to return the videos to the house because he no longer had access to it.  He could not return them to Bernardo because Bernardo was in jail.  The American standard also accords with some of the comments of the eminent Canadian counsel on the panels to which I have referred, where the issues arising from possession of the proverbial “bloody shirts” and “smoking guns” were discussed.

Accordingly, I suggest that it might not be inappropriate to advise clients in those circumstances:  “It is evidence that might convict you; if you give it to me, I may have to turn it over to the prosecution.  Take it away and keep it in your residence; if you destroy it, you may be guilty of a crime.”

However, that sort of advice may create its own problems for the lawyer.  Some clients will not be concerned about a potential prosecution for attempt to obstruct justice, and will hide or destroy the gun or the shirt.  In addition, after giving such advice, a lawyer risks being accused of counseling the destruction of the item despite his or her protestations to the contrary.  That can happen to a lawyer in a case that is notorious, where there is great public and police pressure to find and punish the party who committed an egregious crime and where it is easy to blame the defence attorney for perceived failures in the resolution of the case.

An example of how public pressure and outrage about the legitimate actions of a lawyer in a notorious case can lead to the prosecution of the lawyer may be seen in the New York State  case of People v. Belge.[12]  In that case an attorney who was defending a person charged with murder was told by his client of three other killings he had committed, and was taken by the client to the scene where the body of one of the victims lay.  The lawyer took pictures of the area, and kept the information to himself.  He intended to use it at the client’s trial to demonstrate that the client was mentally ill.  During the trial, when the attorney’s knowledge of the other killings surfaced, there was a public outcry that the bodies had been allowed to remain at the scene of the killings while the attorney prepared and presented his client’s defence on the original murder charge.  The families of the victims were, perhaps understandably, angry and demanded that the lawyer be brought to account for the delinquent manner in which he hid from them and from authorities what had happened to their loved ones.

As a result of the uproar, the attorney was charged under rather obscure New York statutes with failure to provide a decent burial for the dead, and failure to report deaths.  At trial, the attorney’s defence was that the information given to him about the other killings and the location of he body was covered by solicitor-client privilege, and the attorney was bound not to disclose it.  After suffering much anxiety and pain and expense, the attorney was acquitted at his trial on the ground that he had acted professionally in suppressing the information.  The acquittal was upheld by two appellate courts in New York State.  The trial judge said:[13]

When the facts of the other homicides became public, as a result of the defendant’s testimony to substantiate his claim of insanity, “Members of the public were shocked at the apparent callousness of these lawyers, whose conduct was seen as typifying the unhealthy lack of concern of most lawyers with the public interest and with simple decency.”

A hue and cry went up from the press and other news media suggesting that the attorneys should be found guilty of such crimes as obstructions of justice or becoming an accomplice after the fact.  From a layman’s standpoint, this certainly was a logical conclusion.

I cite the case to demonstrate the consequences for defence counsel even when it is demonstrated that he or she acted professionally in a case which was notorious and where there was public pressure on the authorities to do something.  The attorney may become a scapegoat to public indignation (as I allege happened to ken Murray).

To return to the American Bar Association Standard, it may have relevance to some of the other issues I have raised.  As I pointed out earlier, Justice Gravely, in his judgment, recognized the right of counsel in some circumstances to retain items of physical evidence for a reasonable time in order to test them, and he did refer to the American Bar Association Standard in that regard.  G. Arthur Martin’s comments as quoted above support this view.  However if counsel’s actions are questioned, it may be a an issue of fact in each case whether it was reasonable for her to retain an item of physical evidence for the purpose of testing it and, if so, whether the period of time for which the item was retained was reasonable.  And, I suggest, most defence counsel would not want to have the reasonableness of their behaviour tested later in a criminal court after they have been charged with attempt to obstruct justice.

As to the right of counsel to use the item of evidence for the defence, as Standard 4-4.6(c) implies, in high profile cases such as that of Ken Murray, the issue may arise as to the reasonableness and honesty of counsel’s belief that it could be used for the defence, with the result that he or she may face the same danger of criminal prosecution.  Since the Murray decision, counsel may have difficulty maintaining that they believe they have no obligation to disclose incriminating evidence.  And it should be noted that Justice Gravely, in his judgment, did not refer to the portion of Standard 4-4.6 relating to use of the evidence for the defence.  I reiterate, the standard is not binding on Canadian courts or on the Law society, although ne would expect it might have some persuasive authority.

Perhaps as a result of the Murray decision, some lawyers will advise their clients that documents left with them may have to be turned over to the prosecution.  One may wonder whether with that knowledge clients wil want to entrust their counsel with their confidential files and, perhaps, with the true extend of their problems with the criminal law.  And if clients become inhibited in their disclosures to their legal advisers, will not the ability of counsel to prepare and defend their clients’ cases be similarly inhibited?  This is the essence of the criticism of the Olwell line of decisions by some American commentators.

Therefore, one might ask, how should counsel guide themselves when faced with the problem of evidence that may be incriminating of their clients without placing themselves at risk of prosecution/  I suggest that if a serious issue arises in this area counsel would be wise to consult promptly with senior counsel in confidence for independent advice as to how to deal with the matter.  It would be prudent to maintain careful notes or dockets of the issue involved, counsel’s approach to the issue, and the independent advice received.  In major cases and notorious cases, counsel should consider placing the question before the Professional Conduct committee of the Law society for their direction, as Mr. Murray ultimately did.  The bona fide resort to the advice of other counsel or the Law Society may help insulate lawyers from the risks consequent from their actions.

As was suggested by G. Arthur Martin years ago, it is apparent that there is a real need for the Law Society to consider rules for counsel’s guidance in this area in this province.  [14]             



[1] This article is based on a paper delivered to the Hamilton Criminal Lawyers Association on November 2, 2000.  Mr. Cooper was counsel to Ken Murray in R. v. Murray (2000), 144 C.C.C. (3d) 289, 34 C.R. (5th)

[2] Law Society of Upper Canada, Special Lectures, 1969, Defending a Criminal Case: Problems in Ethics and Advocacy.

[3] Published (1970), 12 C.L.Q. 376.

[4] Supra, footdnote 1

[5] Ibid, at p.312.

[6] 394 P.2d 681 (1964).

[7] Ibid, at pp.674-85.

[8] Ibid, at p.686.

[9] People v. Meredith, 631 P.2d 46 (1981).

[10] Morrell v. State, 575 P.2d 1200 (1978).

[11] American Bar Association, Standards for Criminal Justice, Prosecution Function and Defence Function, 3rded. (emphasis added).

[12] 372 N.Y.S. 2d 798 (1975), affd 376 N.Y.S. 2d 771 (1975), affd 390 N.Y.S. 2d 867 (1976).

[13] Ibid, at pp.801-802.

[14] After this address was delivered, the Law Society of Upper Canada established a special committee to examine the problem.  The committee prepared a draft new rule which generated some  controversy, and which was placed before the Benchers of the Law Society at a convocation in May 2002.  The Benchers did not debate the proposed new rule but referred it back to the special committee for a legal opinion as to whether lawyers who complied with the rule could expose themselves to prosecutions for attempt to obstruct justice.  Semble, as of February 2003, the opinion had not been finalized.

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