Physical Evidence Relevant to a Crime

• Author: David Layton; Michel Proulx
• Pages: 483-538

483

CHAPTER 10

PHYSICAL EVIDENCE

RELEVANT TO A CRIME

A. SETTING UP THE PROBLEM:

R v COFFIN

AND

R v MURR AY

A classic ethics problem posed to law students and practitioners alike

is the dilemma of the “smoking gun” or “bloody shirt.”1 What is the

proper response when a client brings a gun to his lawyer, confesses to

using the weapon to commit a murder, and asks for help in handling

this piece of damning physical evidence? This problem sets up a poten-

tial clash between some of counsel’s most sacrosanct responsibilities.

On the one hand, counsel owes duties of loyalty and conf‌identiality to

the client that militate against taking any action that might harm the

client. Yet, at the same time, counsel bears an obligation to the admin-

istration of justice that prohibits actively interfering with the availabil-

ity of physical evidence relevant to a crime and forbids any action that

would serve to compromise its evidentiary value.

We can gain a greater appreciation of the interests at stake by look-

ing at the concrete example of RvCoff‌in,2 a case from Quebec that

garnered much attention in the 1950s and 1960s. While not typically

known as a “smoking gun” case, Coff‌in illustrates a lawyer’s unfortu-

nate involvement in concealing physical evidence of a crime. In 1954

1 For the story of the “bloody sh irt,” see Austin M Cooper, “Shirtle ss in Toronto”

(2010) 29:3 Adv J 23.

2 (1956), 114 CCC 1 (SCC) [Coff‌in].

ETHICS AND CRIMINAL LAW484

Coff‌in was convicted of murdering one of three American tourists who

were shot to death while visiting the Gaspé for a hunting trip. Two

years later, he became the last person to be hanged in the province of

Quebec. Movies, television programs, and popular writings made the

case a cause célèbre, and many people doubted Coff‌in’s guilt.3 Because

of these doubts, a royal commission was established in 1963 to exam-

ine the investigation and prosecution of the case.

New evidence heard by the Coff‌in commission cleared up a mys-

tery that had previously surrounded the disappearance of the suspect-

ed murder weapon and in so doing revealed actions by defence counsel

that by today’s standa rds were almost certainly unethical a nd illegal. At

trial, the Crown contended that a man named Eagle had loaned a rif‌le

to Coff‌in before the crime, and led evidence that this rif‌le could well

have been used to kill one of the victims. The Crown also led evidence

suggesting that Coff‌in had made arrangements to dispose of the rif‌le

before the police search of his camp.4 A police off‌icer testif‌ied at trial

that acting on “precise information,” the nature of which he did not

disclose and was not asked to reveal, he had searched unsuccessfully

for the rif‌le in the vicinity of Coff‌in’s camp.

The fate of the rif‌le was undoubtedly relevant to the issue of guilt.

Yet the failure of the trial record to provide a satisfactory answer to

this factual question, as well as the police off‌icer’s strange reference to

“precise information” connecting Coff‌in to the rif‌le, helped to fuel argu-

ments in favour of Coff‌in’s possible innocence. The Coff‌in commission

heard new evidence concerning the rif‌le. This evidence revealed that

after his arrest Coff‌in had instructed a lawyer to get rid of the weapon.

The lawyer, in the company of others, had located and disposed of the

rif‌le according to his client’s direction.5 Needless to say, this startling

new evidence, coming years after the trial and execution, shed light on

Coff‌in’s involvement and his counsel’s conduct. Clearing up the mystery

of the rif‌le helped alleviate concerns Coff‌in may have been innocent.

The new evidence also explained why in cross-examining the police

off‌icer at trial defence counsel had neither pressed for disclosure of the

source of the “precise informat ion” nor attacked the off‌icer’s credibility

on the point: counsel had known that the information provided to the

3 See, for example, Jacque s Hébert, I Accuse the Assassin s of Coff‌in (Montreal: Les

Éditions du Jour, 1964); John Edward Bell iveau, The Coff‌in Murder Case (To -

ronto: Kingswood Hous e, 1956).

4 Coff‌in, above note 2 at 29–30.

5 See Quebec, Rappor t de la Commission d’enquête Brossard sur l’affaire Coff‌in, vol 2

(Montreal: La Com mission, 1964) at 300–8 [Rappor t sur l’affaire Coff‌in].

Physical Evidence R elevant to a Crime485

off‌icer was true.6 However, the commission made no comment as to the

propriety of counsel’s actions in helping to move the rif‌le.

More recently, the sorts of ethical issues raised by Coff‌in were pub-

licly aired in the notorious Ontario case of RvMurray.7 The accused,

Ken Murray, was a defence lawyer who in February 1993 was retained

to defend Paul Bernardo against many serious sexual assault counts,

as well as a charge of assault against Bernardo’s estranged wife, Karla

Homolka. Bernardo was also the prime police suspect in the murder

of two teenage girls. The police conducted a seventy-one-day search of

the home Bernardo had shared with Homolka. The search concluded

on 4 April, after which Bernardo, who was in custody, directed Murray

in writing to remove some items from the house that “alone may f‌irst

appear to be irrelevant and thus overlooked but together can be very

important” to the defence.8 On 6 May Murray retr ieved the items — six

videotapes — from their h iding spot above a ceiling pot light. Bernardo

instructed Murray not to view them for the time being. Murray com-

plied and locked the tapes in his off‌ice safe without screening their

contents.

On 14 May Homolka f‌inalized an agreement with the Crown to

plead guilty to two counts of manslaughter in the deaths of the teen-

age girls. There was to be a joint submission for a twelve-year sentence,

and Homolka agreed to assist the Crown in prosecuting Bernardo for

the homicides — her testimony would be crucial to obtaining convic-

tions. On 18 May Bernardo wa s charged with two counts of f‌irst-degree

murder in the girls’ death s. Murray was reta ined to conduct the defence

and obtained Bernardo’s instructions to view the videotapes. On do-

ing so, Murray learned that the tapes depicted Bernardo and Homolka

engaged in the gross sexual abuse of four female victims, including t he

two murdered girls. There can be no doubt that the Crown would not

have made the plea agreement with Homolka had the tapes then been

available as evidence.9

Murray retained the tapes for another sixteen months without dis-

closing their exi stence to the Crown. His ostensible purpose was to use

the tapes to help negotiate a plea agreement or, alternatively, to spring

them on Homolka, who claimed to be a forced participant as opposed

to a willing abuser of the girls during cross-examination at trial.

6 Ibid at 362. The limits on cross- examining a wit ness who is known to be tr uth-

ful are dis cussed in Chapter 1, Section K(1).

7 (2000), 144 CCC (3d) 289 (Ont SCJ) [Murray].

8 Ibid at para 7.

9 See Report to the Att orney General of Ontario o n Certain Matters relating to Karla

Homolka, by Hon Patr ick T Galligan (Toronto: Attorney General of Onta rio,

1996) at 216–17.