Law Times

Law Times • march 7, 2016 Page 3 www.lawtimesnews.com New LSUC rules clarify handling of physical evidence No obligation for lawyers to help authorities with gathering evidence of crimes BY NEIL ETIENNE Law Times T he Law Society of Upper Canada has approved new professional con- duct rules that finally provide clarity on how criminal lawyers handle incriminating physical evidence. The new rules and commen- tary added to the LSUC's Rules of Professional Conduct prohibit the concealment, destruction, or alteration of incriminating phys- ical 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 law- yers handle incriminating physi- cal evidence. "The new rule is a vast im- provement on the rule that the judge in Ken Murray's trial con- sidered inadequate," says MacK- enzie. 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 ap- plication of the rules. Malcolm Mercer, chairman of the LSUC's Professional Regulation Com- mittee, says the new rules were drafted broadly to ensure any conduct relating to the obstruc- tion or attempted obstruction of the course of justice would also be captured. The commentary states: "A lawyer shall not counsel or par- ticipate in the concealment, destruction, or alteration of in- criminating physical evidence or otherwise act so as to obstruct or attempt to obstruct the course of justice." MacKenzie explains issues around incriminating physi- cal evidence came to light in the late 1990s after Paul Bernardo's original lawyer, Ken Murray, re- trieved 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 Jus- tice Judge Patrick Gravely stated that the Law Society's Rules of Professional Conduct provided little assistance to lawyers in sim- ilar situations. MacKenzie says that shortly after the decision, the LSUC at- tempted to craft clearer regu- lations. He chaired the special committee struck to create new rules, but he explains that Con- vocation was "deeply divided" on the issue and recommendations were not put to a vote. "The Canadian Bar Asso- ciation's criminal justice section concluded that because of the heightened awareness among criminal defence lawyers as a re- sult of the Murray case of the un- acceptability of their taking pos- session 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 crimi- nal prosecution. "It does not include docu- ments or communications that are solicitor-client privileged or that the lawyer reasonably be- lieves are otherwise available to the authorities," the rules con- tinue. The rules clarify that a law- yer is never required to take or keep possession of incriminat- ing physical evidence or to dis- close 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 be- comes aware of the existence of evidence or declines to take pos- session of it must not counsel or participate in its concealment, destruction, or alteration. "A lawyer should balance the duty of loyalty and confidenti- ality owed to the client with the duties owed to the administra- tion of justice," the rules con- tinue. "When a lawyer discloses or delivers incriminating physi- cal 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 pre- serve 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 pol- icy failed. "It seems we're at a point now where all concerned are comfort- able that this is a rule that ref lects the law and properly guides law- yers 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 inves- tigation or prosecution. Mercer says his committee will consider requests to explore similar regulations in civil mat- ters, although there are some reg- ulations 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 pend- ing, but it is conceivable that pro- ceedings may commence at some point in the future. "It would be helpful to have more guidance in these areas," MacKenzie says. LT NEWS Celebrating 15 Years Célébrer 15 ans Untitled-3 1 2016-03-02 10:14 AM 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. Malcolm Mercer Gavin MacKenzie says he agrees with new professional conduct rules that provide clarity on how criminal lawyers handle incriminating physical evidence.

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