The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50094
L E GAL E THICS BY PHILIP SLAYTON Intrepid lawyers defending odious crimes Representing unpopular defendants can be rough, but defence counsel continue to hold tough and navigate treacherous waters for the good of their clients. of justice, but can be a bad thing for the lawyers concerned. They may get en- snared in dangerous ethical dilemmas. They may come to share their clients' unpopularity. And they may get on the wrong side of politics. S Ethical dilemmas One of the most notorious trials in Ca- nadian history demonstrates the kind of ethical dilemma that can confront a defence lawyer. Paul Bernardo was con- victed in 1995 of murdering two On- tario schoolgirls. He was represented by Ken Murray, then by John Rosen. By all accounts, Rosen's behaviour was impeccable, and he emerged from the experience with his reputation intact. It was not so easy for Murray, who for 17 months withheld videotapes of Ber- nardo's sexual assaults from police. It has never been entirely clear why Murray acted this way. Presumably, he thought it would help his client. Perhaps he in- tended to try using the tapes at trial to Bernardo's advantage. Murray was charged with attempt- ing to obstruct justice, but was ac- quitted. Justice Patrick Gravely found Murray's responsibility in the circum- stances unclear, and said: "While Mur- ray made only a token effort to find out what his obligations were, had he done careful research he might have remained confused." The Law Society of Upper Canada ome lawyers willingly, even en- thusiastically, defend persons accused of odious crimes. That's a very good thing for our system began disciplinary proceedings against Murray in 1997, but in 2000, after his acquittal, withdrew the complaint and instead appointed a special committee "to devise a proposed rule of conduct to provide guidance to lawyers who may be faced with similar issues in the future." In May 2002, the committee decided that it needed legal advice (a strange decision, since the committee itself was composed of eminent law- yers). I don't believe the committee 30 JANU AR Y 2008 www. C ANADIAN Law ye rmag.com has been heard from since. Confusion about this particular ethical dilemma — ponderously labelled by the law so- ciety "a lawyer's duties with respect to physical evidence relevant to a crime" — presumably still reigns. Unpopularity Robert Shantz represented Clifford Ol- son, who pleaded guilty in 1983 to the murder of 11 children in British Co- lumbia. In an article in the March 2005 DOMINIC BUGATTO