Defence Counsel’s Dilemma
R. v. Murray (2000) - Defense Counsel’s Dilemma
Mr. Murray was the first defence lawyer for Paul Bernardo. He withheld Bernardo’s videotaped evidences for 17 months and was later acquitted of obstruction of justice.
The rule of confidentiality from the casebook justifies Mr. Murray’s actions. In section 5.3 it says “a lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them”. Even though this section raises an ethical dilemma in terms of how gruesome the crimes of Bernardo were; once retained it is a lawyer’s duty to defend their clients regardless of any conflicting moral obligation. Hence, this rule justifies the action of Mr. Murray as he was a defence lawyer for Paul Bernardo; a serial-killer accused of multiple rapes and murders in Scarborough.
Mr. Murray’s action of not turning over the tapes to uphold the secrecy of the client violated the rule of integrity in the casebook. According to the casebook, it is a lawyer’s duty to discharge with integrity (a) every duty the lawyer owes to (i) a client, (ii) another lawyer, (iii) a court, (iv) the profession, (v) the general public; and (b) every duty the lawyer has to uphold justice and to uphold and improve the administration of justice. Mr. Murray’s action of not immediately handing over the tapes has violated his duty to serve with integrity with the court, the general public and the duty to uphold and improve the administration of justice. As Mr. Murry hid the records and let Homolka negotiate a contract with the crown which left one of the serial-killers i.e. Homolka running freely on the streets and possibly being a threat to the society. Mr. Murray has failed to uphold the administration of justice by letting it negotiate a plead deal with one of the killers despite having the evidence in hand.
SUPERIOR COURT OF JUSTICE
R. v. Murray, 2000 CanLII 22631 (ON SC)
- Ken Murray (Paul Bernardo’s counsel) went to the crime scene and removed videos not found by police on his client’s instructions
- he maintained possession for 17months and did not disclose this to the authorities
- he was charged with attempt to obstruct justice
- he eventually turned over tapes but was holding off because the tapes supported position that Karla Homolka was actually responsible for the deaths of 2 female victims
- the Crown was planning on portraying her as an abused, manipulated victim but tapes showed reverse; Murray claimed he was obliged to keep existence of tapes secret so that the Crown could not prepare Homolka for his cross-examination
- unaware of the tapes, Karla Holmolka was offered a plea because the Crown was lacking evidence that actually did exist
- what was Murray’s purpose in concealing tapes? (i.e. to obstruct justice or advance Bernardo’s defence?)
- was it unethical to handle physical evidence without confronting the police)?
- there was reasonable doubt as to whether Murray was acting with the intention of obstructing justice; he was acquitted because may well have believed under circumstances that he had no legal duty to disclose tapes until resolution discussions for trial
REASONS (per Gravely, J):
- videotapes are NOT communication between client and solicitor, and as such, don’t constitute privilege; instead, they are evidence of crime because they pre-existed the client-solicitor relationship
- thus, while Murray’s discussions with Bernardo about the tapes are covered by privilege, the physical objects, the tapes, are not, and hiding them from police on behalf of his client cannot be said to be part of client-solicitor communication
- maintaining confidentiality in the scheme of client-solicitor privilege is not permissible becyase evidence may have had some exculpatory value; still must turn over any incriminating physical evidence to the prosecutor if it improperly comes into your possession as lawyer (however, there is no positive obligation to assist the Crown)
- if you come into the possession of physical evidence as a lawyer, you must turn it over
- physical evidence is not protected by client-solicitor privilege (as per Sowers v Olwell [US 1964])
Melissa Ragogna — University of Windsor Student's Law Society