Un avocat ne peut pas dissimuler une preuve matérielle démontrant la perpétration d'une infraction

R. v. Murray, 2000 CanLII 22378 (ON SC)

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Although the accused had a duty of confidentiality to B, absent solicitor-client privilege there was no legal basis permitting concealment of the tapes. Nor could it be said that concealing the critical tapes was permissible because they might have some exculpatory value. They were overwhelmingly inculpatory. While he had no obligation to assist the police in their investigation or the Crown in its prosecution, the accused could not be a party to concealing this evidence. Having removed the tapes from their hiding place, he could not hide them again; nor could he implement any instructions from B that would result in their continued concealment. Once he had discovered the overwhelming significance of the critical tapes, the accused was left with three legally justifiable options: immediately turn over the tapes to the prosecution, either directly or anonymously; deposit them with the trial judge; or disclose their existence to the prosecution and prepare to do battle to retain them. The accused's concealment of the critical tapes was an act that had a tendency to pervert or obstruct the course of justice and, therefore, the actus reus of the offence is made out.

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The accused testified that he believed his conduct was lawful. Section 139(2) of the Code casts a broad net, and does not specifically isolate as criminal the conduct engaged in by the accused. The only official guide given to lawyers in Ontario by the Law Society, in the L.S.U.C. Professional Conduct Handbook, was not helpful. While the accused made only a token effort to find out what his obligations were, had he done careful research he might have remained confused. The weight of legal opinion in Ontario is to the effect that lawyers may not conceal material physical evidence of crime, but how this rule applies to particular facts has been the subject of extensive discussion. The accused may well have believed that he had no legal duty to disclose the tapes until resolution discussions or trial. In the context of the whole of the evidence, his testimony raised a reasonable doubt as to his intention to obstruct justice. The accused is, therefore, found not guilty.

[149] While Murray made only a token effort to find out what his obligations were, had he done careful research he might have remained confused. The weight of legal opinion in Ontario is to the effect that lawyers may not conceal material physical evidence of crime, but how this rule applies to particular facts has been the subject of extensive discussion. Lawyers in the United States have been afflicted with the same dilemma. In the materials supplied to me by counsel, there is reference to at least 15 law journal discussions on the issue.