New LSUC rules clarify handling of physical evidence

The Law Society of Upper Canada has approved new professional conduct rules that finally provide clarity on how criminal lawyers handle incriminating physical evidence.

The new rules and commentary added to the LSUC’s Rules of Professional Conduct prohibit the concealment, destruction, or alteration of incriminating physical evidence.

“I have long been an advocate of amending the rules to provide specific guidance to lawyers who become embroiled in dilemmas in this area,” says Bencher Gavin MacKenzie.

More than a decade ago, MacKenzie chaired a special committee for Convocation that unsuccessfully tried to create new policy on how criminal lawyers handle incriminating physical evidence.

“The new rule is a vast improvement on the rule that the judge in Ken Murray’s trial considered inadequate,” says MacKenzie.

The rules are also in line with recent regulations accepted by the Federation of Law Societies of Canada.

Commentary added to the LSUC regulations and code of conduct provides detailed guidance on the scope and application of the rules. Malcolm Mercer, chairman of the LSUC’s Professional Regulation Committee, says the new rules were drafted broadly to ensure any conduct relating to the obstruction or attempted obstruction of the course of justice would also be captured.

The commentary states: “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.”

MacKenzie explains issues around incriminating physical evidence came to light in the late 1990s after Paul Bernardo’s original lawyer, Ken Murray, retrieved videotapes from a false ceiling that recorded some of Bernardo’s crimes, on his client’s instructions.

The tapes were not disclosed to the authorities for about 18 months and were eventually played during Bernardo’s trial.

MacKenzie says that by the time the tapes had been played in court, Bernardo’s wife and accomplice Karla Homolka had entered into a plea bargain that MacKenzie says left many observers thinking the Crown would not have entered into if it had been aware of the tapes.

After Bernardo was convicted of murder, Murray was charged with obstruction of justice and was eventually acquitted.

In his 2000 ruling acquitting Murray, Superior Court of Justice Judge Patrick Gravely stated that the Law Society’s Rules of Professional Conduct provided little assistance to lawyers in similar situations.

MacKenzie says that shortly after the decision, the LSUC attempted to craft clearer regulations. He chaired the special committee struck to create new rules, but he explains that Convocation was “deeply divided” on the issue and recommendations were not put to a vote.

“The Canadian Bar Association’s criminal justice section concluded that because of the heightened awareness among criminal defence lawyers as a result of the Murray case of the unacceptability of their taking possession of physical evidence, and the infrequency of such issues arising in practice, there was no need to amend the CBA Model Code of Professional Conduct at the time,” he says. 

Under the new rules, “physical evidence does not depend on the admissibility before a tribunal or upon the existence of criminal charges. It includes documents, electronic information, objects or substances relevant to a crime, criminal investigation or a criminal prosecution.

“It does not include documents or communications that are solicitor-client privileged or that the lawyer reasonably believes are otherwise available to the authorities,” the rules continue.

The rules clarify that a lawyer is never required to take or keep possession of incriminating physical evidence or to disclose its existence, but they state that: “A lawyer in possession of incriminating physical evidence should carefully consider his or her options, which may include consulting with a senior legal practitioner.” A lawyer who becomes aware of the existence of evidence or declines to take possession of it must not counsel or participate in its concealment, destruction, or alteration.

“A lawyer should balance the duty of loyalty and confidentiality owed to the client with the duties owed to the administration of justice,” the rules continue. “When a lawyer discloses or delivers incriminating physical evidence to law enforcement authorities or to the prosecution, the lawyer has a duty to protect client confidentiality, including the client’s identity, and to preserve solicitor-client privilege.”

Mercer told Convocation during its last meeting Feb. 25 that it was an area of policy that had been “controversial” within the legal ranks in the past, and previous attempts to create policy failed.

“It seems we’re at a point now where all concerned are comfortable that this is a rule that reflects the law and properly guides lawyers to options,” he said.

Mercer also explained that, under the rules, a lawyer has no obligation to assist the authorities in gathering physical evidence of crime, but he or she cannot act or advise anyone to hinder an investigation or prosecution.

Mercer says his committee will consider requests to explore similar regulations in civil matters, although there are some regulations already in place that state lawyers shall not destroy evidence before or during litigation.

MacKenzie says lawyers still need further guidance when it comes to quasi-criminal and civil matters, such as when a lawyer who receives a document that may implicate a client in an offence under the Securities Act or the Environmental Protection Act. He would like the rules to clarify if a civil lawyer has a duty to advise a client not to destroy inculpatory documents where no civil proceedings are pending, but it is conceivable that proceedings may commence at some point in the future.

 “It would be helpful to have more guidance in these areas,” MacKenzie says.