This article was originally published in Maclean's Magazine on February 3, 1997
OPP Charge Former Bernardo Lawyers
The videotapes were shown only to the jury, but the sound track alone was enough to make even seasoned court veterans cringe. Crucial evidence in the 1995 criminal proceedings against Paul Bernardo, they depicted the cigarette smuggler and would-be rap star sexually assaulting southern Ontario teenagers Leslie Mahaffy and Kristen French - with the aid of his then-wife, Karla Homolka. Last week, the grisly videotapes re-emerged into the media spotlight. Ontario Provincial Police laid charges against two former Bernardo lawyers for withholding the tapes for 16 months before handing them over to prosecutors. The charges - for obstructing justice and possession of child pornography - sent shock waves through the legal community. And even with Bernardo, now 32, serving a life sentence with no hope of parole for the murders of Mahaffy and French, and Homolka, 26, into the fourth year of a 12-year manslaughter conviction, echoes of the gruesome recordings resounded once again.
The allegations against Ken Murray, 48, and Carolyn MacDonald, 35, arise from perhaps the most controversial aspect of the Bernardo case - and raise troubling questions about the extent and sanctity of lawyer-client privilege. In May, 1993, Murray and his assistant MacDonald, acting on instructions from Bernardo, removed six eight-millimetre tapes from his client's home in St. Catharines - evidence that a 71-day search of the pretty pink bungalow had failed to find. Then, Murray held on to the tapes until he quit as Bernardo's lawyer in September, 1994, when he gave them to his successor, John Rosen, who in turn handed them over to prosecutors. The delay not only hindered the investigation of Bernardo, but gave Homolka a chance to conclude her seemingly lenient plea bargain - even though the tapes depicted her more as a willing participant than an unwilling victim. A 1996 provincial inquiry concluded that Crown prosecutors would never have agreed to the Homolka plea bargain if they had been in possession of the videotapes.
To the families of Bernardo's victims, the charges against the two lawyers were long overdue. "I haven't got much to say," said Kristen's father, Doug French, "other than we're pleased that they've finally been charged for what they've done." Murray's counsel, Austin Cooper, declined to comment on the case, beyond saying that his client will plead not guilty. But Murray has previously charged that the police focus on him was an attempt to find a scapegoat for Homolka's questionable plea bargain - "a deal with the devil," he called it - and for a bungled police investigation. As for not handing over the videotapes, he has steadfastly maintained that he was bound by lawyer-client confidentiality. And in any event, he said that Bernardo instructed him not to view the tapes - and only gave his permission two days after Homolka's plea bargain.
The allegations against Murray, who has also been charged with creating obscene material (a charge apparently related to copying the Bernardo videotapes), tread upon an ill-defined area of Canadian jurisprudence. Alan Young, an associate professor at Osgoode Hall Law School in Toronto, says there are strict rules for protecting the confidentiality of whatever a lawyer and his client discuss. If, for example, a client tells his lawyer that he is guilty, the lawyer is obliged to keep that information to himself. On the other hand, he adds, lawyers have a responsibility to the court to make sure that any pertinent physical evidence - such as a murder weapon or, in this case, the videotapes - is handed over to investigators. Adds Young: "It's actually not an incredibly difficult question of what to do when a client hands over physical evidence."
Still, a lawyer has a duty not only to the court but also to the client. And in Murray's case, much depends on what his intent was in withholding the tapes: whether it was to hide evidence that would damage his client, or to hang on to evidence that he could use in his client's defence - in this case, to counter Homolka's testimony against Bernardo. "Murray may have breached an ethical obligation and his act did obstruct a police investigation," Young adds. "But that's still not enough to prove that this is a criminal offence."
Whatever the outcome of the case, which goes to court in February, many lawyers last week saw the charges against Murray and MacDonald as tantamount to an assault on their profession. To some, the pornography charges in particular were questionable - or, at worst, vindictive. As one lawyer said of Murray: "Somebody is out to get him." Still others worried that any conviction could injure the trust between lawyer and client. "This is what we are for," said Toronto lawyer Barry Swadron. "You're charged with an offence, you go before a lawyer and you expect him or her to defend you - not turn you in." Another veteran defence lawyer, who spoke on condition of anonymity, put it more bluntly. "If there's a conviction here," he said, "we're all in deep trouble."
Maclean's February 3, 1997