Osgoode Hall Review of Law and Policy (OHRLP)

This article focuses on how the investigation and prosecution of Paul Bernardo not only exposed one of Ontario’s most notorious killers but led to significant discussion about the legal and ethical obligations faced by criminal defence lawyers. Using the example of the prosecution of Kenneth Murray, Bernardo’s lawyer, for obstruction of justice, this paper examines the tension that is created between the conflicting duties owed by defence lawyers to candor and confidentiality. The limits of confidentiality are explored, as is the importance of the solicitor-client relationship to the legal system and whether (or when) there is a duty to disclose the possession of physical evidence. This paper will ultimately demonstrate that the ethical obligations faced by criminal defence counsel are often highly contextual and can only be decided on a case-by-case basis. As such, it is important that lawyers are provided with adequate guidance on difficult ethical and legal situations. However, despite Murray’s prosecution (and acquittal), defence lawyers could still benefit from greater guidance in these difficult and legally-significant situations.

Christopher D. Clemmer, "Obstructing the Bernardo Investigation: Kenneth Murray and the Defence Counsel's Conflicting Obligations to Clients and the Court" (2008) 1 Osgoode Hall Rev.L.Pol'y. 137.