criminal-law canada lawyer professional-ethics obstruction
Is a lawyer allowed to follow a client&#39;s instructions to hide evidence?
<p>The police arrested a suspect linked to sexual assaults. The police searched his home. It sounds like initially the search warrants were very limited in scope but they widened as things turned up. While he was in jail, his lawyer followed his instructions to hide evidence.</p>
<p>From <a href="https://en.wikipedia.org/wiki/Paul_Bernardo#cite_note-17" rel="noreferrer">Wikipedia</a></p>
<blockquote>
<p>Bernardo told his lawyer, Ken Murray, that the rape videotapes were
hidden in a ceiling light fixture in the upstairs bathroom. Murray
found the tapes and hid them from evidence. Later Murray resigned as
Bernardo’s lawyer and John Rosen stepped in. Rosen turned the tapes
over to police. [17]</p>
</blockquote>
<p>Murray got off on <a href="https://www.cbc.ca/news/canada/court-finds-bernardo-lawyer-not-guilty-1.252668" rel="noreferrer">all charges</a>. How is this possible? He knew what was on the tape, at least in a general sense. Doesn't a lawyer have a responsibility not to defend a specific fact that they know is criminal? This action had the potential to lead to the release of an extremely dangerous person to the public.</p>
<p>I find a lot of the story confusing. For example if police were still searching the house why would they let someone remove the tapes? If they were finished searching the house and didn't find them then why did he get the lawyer to remove them? Also why could he be kept in jail without charge for 71 days?</p>

<h1>Quick answer</h1>
<p>&quot;Is a lawyer allowed to follow a client's instructions to hide evidence?&quot; <strong>Probably not</strong>. I discuss this in the final section of this answer.</p>
<p>About this specific case, the Crown did not prove beyond a reasonable doubt that the lawyer (Ken Murray) had intended to conceal the tapes permenantly or that he was aware of an obligation to disclose them prior to trial. As summarized by <a href="https://criminal-lawyers.ca/2009/10/16/the-ken-murray-case-defence-counsels-dilemma/" rel="noreferrer">Austin Cooper, K.C.</a>:</p>
<blockquote>
<p>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.</p>
</blockquote>
<h1>Deeper answer</h1>
<p>I'll first attempt to explain the trial judge's reasons (<a href="https://canlii.ca/t/1w0w5" rel="noreferrer"><em>R. v. Murray</em>, 2000 CanLII 22378 (ON SC)</a>). At the end, I answer your more general questions.</p>
<h2>Facts</h2>
<ul>
<li>February, 1993: Ken Murray was retained to defend Paul Bernardo on sexual assault charges; <strong>it was this charge for which Bernardo was already in custody at the time of the search of his home</strong>.</li>
<li>April 30, 1993: The final search warrant of the Bernardo home expired.</li>
<li>May 6, 1993: Ken Murray opened a letter from Bernardo that instructed the defence team to retrieve six 8mm videotapes. They located the tapes, removed them, and they committed to not tell anyone about the tapes.</li>
<li>May 18, 1993: Bernardo was charged with two counts of first-degree murder and related offences. Murray's retainer was expanded to include defence of these charges. Bernardo authorized Murray to copy and review the videotapes and make use of them as appropriate in his defence.</li>
<li>Two of the tapes contained evidence of sexual assault and death threats. Others contained evidence about the character and actions of a co-accused which Murray thought could be useful in Bernardo's defence.</li>
<li>Early June 1993: Murray made a copy of the tapes and became fully aware of their contents.</li>
<li>July 11 and 12, 1994: Bernardo told Murray he intended to deny ever having any contact with the victims that were on the tapes. He told Murray that the tapes were not to be used to contradict this position.</li>
<li>July 24, 1994: After learning about DNA evidence and learning what the co-accused told police (all pointing to Bernardo being with the victims in the home), and <strong>after confirming that Bernardo insisted on maintaining his position that he had no contact with the victims and that the tapes were not to be used, Murray &quot;felt obliged to terminate the solicitor-client relationship&quot;</strong>.</li>
<li>August 25, 1994: After a period of discussion with John Rosen (a lawyer from another firm), Rosen agreed to take over the defence of the first-degree murder charges. Murray did not tell Rosen about the tapes. Murray would remain defence counsel on the sexual assault charges.</li>
<li>August 27, 1994: Rosen and Murray met with Bernardo to explain the change in counsel on the murder charges.</li>
<li>August 30, 1994: Bernardo directed Murray to not reveal any of his materials to &quot;other counsel retained on my behalf for other offences that are currently before the Court... unless I specifically direct the release of such materials, in writing.&quot;</li>
<li>Murray retained his own lawyer who further sought advice from the law society. The law society advised that (1) Murray remove himself as counsel for Bernardo on all matters; (2) Murray give the tapes to the judge in a sealed packet to be subect to court determination; and (3) to tell Bernardo of these steps as soon as possible.</li>
<li>Rosen (the new defence counsel on the murder charges) became aware of these plans, learned that the tapes existed, and was concerned the tapes would be turned over without any input from him.</li>
<li>September 21 and 22, 1994: After much discussion with Crown counsel, Rosen got instructions from Bernardo to turn over the tapes; the tapes were delivered to the Metropolitan Toronto Police and the Niagara Regional Police.</li>
</ul>
<h2>The charge</h2>
<p>Ken Murray was charged with wilfully obstructing or attempting to obstruct the course of justice.</p>
<h2>The law</h2>
<p>The judge applied what is known as the &quot;tendency test&quot;. He said:</p>
<blockquote>
<p>Attempting to obstruct justice is construed as the doing of an act which has a tendency to pervert or obstruct the course of justice (the actus reus). &quot;Wilfully&quot; then constitutes the mens rea -- that is the act is done for the purpose of obstructing the course of justice</p>
</blockquote>
<p>He noted:</p>
<blockquote>
<p>The system functions within the broad principles of the presumption of innocence and the right to silence. The Crown must fully disclose its case. The defence has no reciprocal obligation.</p>
</blockquote>
<h2>Application of the law</h2>
<h3><em>Actus reus</em></h3>
<p>In this case, the judge found that Murray had done the <em>actus reus</em> of the offence:</p>
<blockquote>
<p>On the face of the evidence Murray's action in secreting the critical tapes had the tendency to obstruct the course of justice at several stages of the proceedings.</p>
<p>The tapes were put beyond the reach of the police who had unsuccessfully attempted to locate them. Secreting them had the tendency to obstruct the police in their duty to investigate the crimes of Bernardo and Homolka.</p>
</blockquote>
<p>Further, there was no justification that negated the actus reus. This evidence on the tapes was not privilged; it was not communication between solicitor and client. The judge found that &quot;once [Murray] had discovered the overwhelming significance of the critical tapes, Murray... was left with but three legally justifiable options&quot;:</p>
<blockquote>
<p>(a) immediately turn over the tapes to the prosecution, either directly or anonymously;</p>
<p>(b) deposit them with the trial judge; or</p>
<p>(c) disclose their existence to the prosecution and prepare to do battle to retain them.</p>
</blockquote>
<h3><em>Mens rea</em></h3>
<p>The Crown had to prove that Murray's <em>intention</em> was to obstruct the course of justice. The judge found that the Crown did not prove this element beyond a reasonable doubt. The judge found that Murray may have not intended to permanently suppress the tapes and that Murray may have believed he had no obligation to disclose the tapes prior to the trial. He had presented several theories regarding the potential usefulness of the tapes to the defence which would have required holding back the tapes for their tactical or &quot;surprise&quot; value. Also, the judge noted that the law in this area was confusing.<sup>1</sup></p>
<blockquote>
<p>While Murray made only a token effort to find out what his obligations were, had he done careful research he might have remained confused. The weight of legal opinion in Ontario is to the effect that lawyers may not conceal material physical evidence of crime, but how this rule applies to particular facts has been the subject of extensive discussion. Lawyers in the United States have been afflicted with the same dilemma. In the materials supplied to me by counsel, there is reference to at least 15 law journal discussions on the issue.</p>
</blockquote>
<h2>Ethical responsibility</h2>
<blockquote>
<p>Doesn't a lawyer have a responsibility not to defend a specific fact that they know is criminal?</p>
</blockquote>
<p>No. But they do have an obligation to not lie to the court or to allow their client to lie to the court. This is why Murray knew he had to withdraw from the case when Bernardo was committed to the defence that he had never encountered the victims.</p>
<p>To answer your title question, &quot;Is a lawyer allowed to follow instructions from his client to hide evidence?&quot;, the answer today is &quot;probably not.&quot; <a href="https://criminal-lawyers.ca/2009/10/16/the-ken-murray-case-defence-counsels-dilemma/" rel="noreferrer">It has even been suggested</a> that if defence counsel is faced with this issue, they should instruct their client:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>The Law Society of Ontario's Rules of Professional Conduct now say (<a href="https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/chapter-5#ch5_sec1-2-incriminating-physical-evidence" rel="noreferrer">Rule 5.1-2A</a>):</p>
<blockquote>
<p>A lawyer shall not counsel or participate in the concealment, destruction or alteration of incriminating physical evidence or otherwise act so as to obstruct or attempt to obstruct the course of justice.</p>
</blockquote>
<p>Any lawyer faced with this dilemma should probably do what Mr. Murray eventually did and retain their own lawyer and/or get advice from their law society.</p>
<hr />
<p><sup>1. While the maxim &quot;ignorance of the law is no excuse&quot; generally holds true,  the <em>mens rea</em> of this offence includes an intention to obstruct justice. The judge understood this to invite an inquiry into what Murray believed the law required of him. This approach has been criticized: see Lucinda Vandervort, &quot;<a href="https://journals.lib.unb.ca/index.php/unblj/article/view/29482/1882524671" rel="noreferrer">Mistake of Law and Obstruction of Justice: A 'Bad Excuse'... Even for a Lawyer</a>&quot;, 2001.</sup></p>

<p>The details and principles of this case seem well addressed in the <a href="https://law.stackexchange.com/a/85423/17500">answer by Jen</a>. But I wish to address a particular point in the question which does not depend on the detailed facts of this particular case.</p>
<p>The OP asks in the question:</p>
<blockquote>
<p>Doesn't a lawyer have a responsibility not to defend a specific fact that they know is criminal?</p>
</blockquote>
<p>First of all, a lawyer does not defend facts, a lawyer defends accused persons.</p>
<p>A lawyer who has accepted the case of a person accused of a crime is permitted, indeed is often required, to present the best defense possible, even in the face of facts that seem to support the charges, or seem to prove the guilt of the accused. The defense lawyer may argue, and present evidence to try to show, that the evidence is not reliable, or that the evidence relied on by the prosecution can be explained by a theory other than the guilt of the accused. The defense lawyer may present evidence of diminished capacity, or insanity, or that others were responsible, or partly responsible, for the crime. There are various defenses which might apply in a specific case, and the lawyer is supposed to pick the one that seems to him or her the best choice, in consultation with the accused.</p>
<p>A defense lawyer is not permitted to destroy or alter evidence. Doing so is a crime. Actively concealing evidence is also a crime, but reserving evidence for use by the defense may not be, depending on the circumstances and the applicable law in that jurisdiction.</p>
<p>The defense lawyer is <strong>not</strong> supposed to directly lie to the court, nor to advise the accused to do so. Whether a defense lawyer may lawfully present the testimony of witnesses that s/he knows, or has good reason to believe, are lying varies in different jurisdictions.</p>
<p>Whether a defense lawyer has an obligation to disclose evidence that s/he knows of to the prosecution depends on the detailed circumstances, and is different in different jurisdictions.</p>
<p>A defense lawyer is not ethically responsible for the acquittal of an accused, provided that s/he has not violated the applicable rules of procedure.</p>
