The Globe & Mail
Friday, January 24, 1997

Bernardo's ex-lawyers charged

Two removed damning tapes from house
the day before Homolka struck plea bargain

by Henry Hess and Michael Grange

Two of Paul Bernardo's former lawyers were charged yesterday with obstructing justice by withholding damning videotapes that show Mr. Bernardo and Karla Homolka sexually assaulting two schoolgirls.

Ken Murray and Carolyn MacDonald presented themselves yesterday at the Niagara Falls detachment of the Ontario Provincial Police. They were released pending a court appearance in St. Catharines on Feb. 25.

An OPP spokesman said arrangements for the surrender had been worked out through their lawyers several days earlier.

In addition to charges of obstructing justice and conspiring to obstruct justice, the police charged Mr. Murray and Ms. MacDonald with possessing child pornography.

Mr. Murray, who copied the tapes before eventually handing them over, faces an additional charge of making obscene material.

The charges, after a two-year investigation, address one of the enduring controversies left by the Bernardo murder trial: why a lawyer waited 16 months to disclose vital evidence that incriminated both his client and Ms. Homolka.

Although the tapes were eventually turned over to the court and became a key part of Mr. Bernardo's prosecution, by that time the Crown had already signed a plea-bargain deal in which Ms. Homolka agreed to testify against her former husband in return for a 12-year sentence for manslaughter.

Information that emerged during the trial and afterward answers the question how Mr. Murray came to possess the tapes, on which Mr. Bernardo recorded the sexual abuse inflicted on 14-year-old Leslie Mahaffy and 15-year-old Kristen French, two girls he had abducted and later killed.

Before his arrest on Feb. 17, 1993, Mr. Bernardo hid the tapes in the ceiling above the bathroom in the house in the Port Dalhousie area of St. Catharines where he and Ms. Homolka were living, and police missed them during a 71-day search of the home.

Mr. Murray, 48, of Thornhill, Ont., and Ms. MacDonald, 35, of Sunderland, Ont., acting on instructions received in a phone call from Mr. Bernardo, entered the house on May 6, 1993, and left with the six tapes in a shoe box. The next day, Ms. Homolka - who knew about the tapes but not where they were - struck her plea bargain with the Crown.

What no one has yet fully explained is why the two lawyers waited for more than a year before disclosing the tapes' existence.

In a written statement released through his lawyer, Austin Cooper, in September of 1995, Mr. Murray said that Mr. Bernardo initially instructed him not to view the tapes, a prohibition that was lifted only after he learned of Ms. Homolka's plea deal, and that he "viewed the tapes in their entirety" only well after the deal was struck.

It went on to say that during the summer of 1994, Mr. Murray became concerned about serious ethical problems that had arisen in connection with the tapes and his continued representation of Mr. Bernardo.

He turned to Mr. Cooper, who asked the Law Society of Upper Canada's professional-conduct committee for advice.

"The law society directed Mr. Murray in writing to seal the tapes in a package and turn them over to the judge presiding at Bernardo's trial," the statement said. "The law society further directed him to remove himself as Bernardo's counsel and to tell Bernardo what he had been instructed to do."

Mr. Cooper said that on Sept. 12, 1994, he attended the Bernardo trial and advised Mr. Justice Patrick LeSage of the Ontario Court's General Division, lawyer John Rosen, who replaced Mr. Murray as Mr. Bernardo's defence counsel, and the prosecutors about what the law society had directed Mr. Murray to do.

He said Mr. Rosen objected, arguing that the package should be turned over to the defence first, and Mr. Murray delivered the tapes to Mr. Rosen together with detailed summaries of what was on them.

"Apparently, Mr. Rosen kept the tapes for about two weeks and then decided to turn them over to the prosecution."

The revelation that a key piece of evidence had been kept from the police for so long created a furor. In November, 1994, at the request of the Ontario Attorney-General, the OPP launched the investigation that culminated in yesterday's charges.

In an interview yesterday, OPP Detective Superintendent Larry Edgar gave several reasons why the investigation has taken so long.

First, he said, the investigating officer had to be careful not to interfere with Mr. Bernardo's murder trial, which ended in September, 1995, with conviction on two counts of first-degree murder.

"And then there was the complexity of it. [The investigator] had to make sure he did everything correctly and cross every t and dot every i."

Det. Supt. Edgar said the issue of lawyer-client privilege is "an are a [where] you've got to be very careful. . . .

"When you read each section [of the Criminal Code] like obstruct justice or conspiracy to obstruct, you have to look at each fact and issue that has to be proved."

Also, to gather evidence properly, police have to establish whether there are grounds to believe an offence was committed, he said. "And to do that, you have to proceed by legal means.

"An example would be, if I wanted to go and see certain documents, I need a search warrant. Well, it takes time to get a search warrant."

Mr. Cooper, who in 1995 accused the authorities of seeking to make his client a scapegoat for their failure to find the tapes and for Ms. Homolka's controversial plea deal, declined yesterday to say whether he still feels that way.

"I don't think I can comment" now that charges have been laid, he said.

"I'll have lots to say. I can't comment right now, but I'll have lots to say in court."

Ms. MacDonald's lawyer, Michelle Fuerst, could not be reached for comment yesterday.

Meanwhile, the Law Society of Upper Canada is pursuing its own investigation into whether Mr. Murray and Ms. MacDonald breached rules governing professional conduct.

The disciplinary committee is currently reviewing a report by Douglas Hunt, a Toronto lawyer hired to conduct the investigation, a law society spokesman said, adding that the criminal charges "have no effect on our investigation and review."

Copyright © 1997 by The Globe & Mail. All Rights Reserved. Reprinted with permission.