COURT FILE NO.: CR-19-1609-00 DATE: 2021 02 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Counsel:

Hae jun Rim for the Crown

• and – PEEL REGIONAL POLICE -and-

Sharon Wilmot for the Peel Regional Police

SUJENDRA PERINPAMOORTHY

Christopher Murphy for the defendant

Heard:

December 8, 2020 by Zoom conference

Publication Ban:

PUBLICATION IS BANNED PURSUANT TO 486.4 OF THE CODE OF ANY INFORMATION WHICH COULD REVEAL THE IDENTITY OF THE COMPLAINANT. THIS RULING CONFORMS TO THIS PUBLICATION BAN

APPLICATION TO ACCESS SEALED EXHIBIT

D.E HARRIS J.

[1] A brief video was ordered sealed in a previous proceeding heard in early March of 2020: see R. v. Perinpamoorthy 2020 ONSC 1551 (Ont.S.C.J.). The Peel Regional Police and the Crown now request that they be permitted access to the sealed exhibit to investigate alleged criminal misconduct and for the Crown to potentially use the video in this prosecution.

[2] The accused is charged with sexual assault and sexual interference along with other charges. At the time, he was 19 years old and the complainant was 14 years old. He was more than five years older than her which restricts the defences he can raise: see Section 150.1(1), (2.1), (4) of the Criminal Code. The main allegation with respect to the sexual counts is that on February 4, 2017, there were two acts of sexual intercourse in a Motel 6.

[3] In this case, Mr. Murphy disclosed to the prosecution his possession of the video and he obtained advice from senior lawyers and from the Law Society. In the earlier proceeding, I ordered the video sealed and only to be unsealed by court order. All other copies in defence counsel’s possession were ordered destroyed.

[4] In the motions back in March of last year, part of the relief requested by Mr. Murphy, in light of the facial prohibition in Section 278.92(1) upon using “records” at trial particularly when sexual in nature, were directions with respect to the use of the short video. According to defence counsel the video is a “selfie” apparently taken by the accused. His hand is shown on the complainant’s breast, over her clothing. It was taken while the accused and complainant were inside the room at the Motel 6 on the day of the alleged sexual offences. As I noted in the last decision, the video is likely child pornography under Section 163.1 of the Criminal Code.

[5] Defence counsel as an officer of the court described the intended use of the video. He desired to ask the complainant in cross-examination about the accused videotaping some of their time in the motel room. This was most likely to establish that their association in the room was voluntary, countering evidence and argument that the sexual activity was non-consensual and forced. If not content with the answer, Mr. Murphy proposed to play the video to the complainant.

DECISION

[6] This decision would have been much more difficult before the judgment in R. v. Murray, (2000), 144 C.C.C. (3d) 289, 168 D.L.R. (3d) 544 (Ont. S.C.J.) and the enactment of Rule 5.1-2A (Incriminating Physical Evidence) in the Law Society of Ontario’s Rules of Professional Conduct. In my view, it is now inconvertible that the police and Crown must be given access to the sealed exhibit.

[7] When the video was originally sealed, there was no argument raised nor could there have been that the Dagenais/Mentuck test prohibited the sealing order: Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 (S.C.C.) at paras. 7-8, 26. The events depicted were prima facie evidence of a criminal offence and the recording was alleged to be child pornography. Privacy concerns prohibited the public dissemination of the video.

[8] Although there was a good deal of discussion at this hearing about the Section 278.1 regime and the admissibility and use of the video, this must not be allowed to distract from the sole question to be determined: must the video now be unsealed and the prosecution and the police be permitted access?

[9] The underlying evidence in the Murray case was very different from this case but from a legal perspective, the issue presented is indistinguishable. The facts of Murray are well-known. Ken Murray was defence counsel for Paul Bernardo. Well prior to trial, Bernardo directed Murray to retrieve and then retain video tapes from a hiding place in the ceiling of the home he shared with his wife Karla Homolka. Murray retrieved and then watched the tapes. The tapes included unspeakable abuse of the two murdered young teenagers.

[10] Murray held on to the tapes for 17 months and did not advise the Crown that he had them in his possession. After being replaced by new counsel, Murray sought advice from the Law Society. He then delivered the tapes under seal to the trial judge who directed they go to new counsel for Bernardo. Soon after, Murray also delivered copies to the police.

[11] Murray was charged with attempt to obstruct justice for concealing the tapes. The trial judge, Justice Gravely, found that concealment of the tapes constituted the actus reus of the crime. The tapes were both the product and instrumentalities of crime. By viewing the tapes, the jurors became eyewitness to most of the crimes Bernardo was charged with: see paras. 106-112.

[12] Situations similar to the act of concealment of the Bernardo tapes had been mooted in the legal profession for years before the Murray case: see Law Society of Upper Canada, Special Lectures, 1969, Defending a Criminal Case: Problems in Ethics and Advocacy; G.A. Martin, “The Role and Responsibility of the Defence Advocate”, (1970), 12 C.L.Q. 376. The “bloody shirt” case was the archetype often referred to in debates on a lawyer’s ethical responsibilities. In that instance, a client wanted for murder consulted his lawyer while wearing a bloody shirt. The lawyer surrendered his client to the police but retained the bloody shirt. After consulting the Law Society, the lawyer was told that the shirt was a piece of physical evidence and would have to be turned over. He could well have been called as a witness and have to withdraw from the case: see Austin Cooper Q.C., “The Ken Murray Case: Defence Counsel’s Dilemma” 2003 47 C.L.Q. 141.

[13] Justice Gravely held, in line with clear authority, that the tapes should not have been concealed by Murray and ought to have been turned over to the authorities. They were not communications and so were not protected by solicitor client privilege. Concealing them would render the lawyer an accessory after the fact. Either the possession of the tapes had to be disclosed and then would likely be ordered by a court to be shared with the prosecution or they had to be turned over directly to the authorities: see Murray paras. 114-124. American authority supports this position: see Sowers v. Olwell, 64 Wash. 2d 828 (U.S. Wash. 1964); People v. Meredith, 631 P.2d 46 (1981); Morrell v. State, 575 P.2d 1200 (1978). Also see R. v. Rowe-Boothe, 2014 ONSC 4833, [2014] O.J. No. 4308 (Ont. S.C.J.) at paras. 10-11.

[14] Justice Gravely acquitted Murray based on having a reasonable doubt that Murray believed that the tapes would be useful to him in his defence of Bernardo. Murray testified that he intended to use them at trial in Bernardo’s defence. While they showed Bernardo in a terrible light, Homolka was almost as bad. That would be the defence. Justice Gravely found that the tapes were overwhelmingly inculpatory but Murray’s intention to use them for the defence was reasonably feasible. Murray was acquitted because it had not been proved that he had the mental element to prove the obstruct justice offence.

[15] The dicta from the Murray case that the secreting of the tapes was improper, having long roots in the common law, has never been doubted. Physical evidence documenting a crime must be divulged and will have to be disgorged. In the fallout of the decision, it was widely recognized including by Justice Gravely in Murray itself that the Law Society ought to amend the Rules of Professional Conduct to incorporate the legal foundations of the Murray decision and provide improved guidance to counsel with respect to their ethical and legal responsibilities when dealing with physical evidence.

[16] While it took several years, in February of 2016 Rule 5.1-2A was enacted. It reads,

A lawyer shall not counsel or participate in the concealment, destruction or alteration of incriminating physical evidence or otherwise act so as to obstruct or attempt to obstruct the course of justice.

[17] Commentary 2 states that the Rule does not pertain to evidence tending to establish innocence, such as alibi evidence. If, however, the evidence is both incriminating and exculpatory, improperly dealing with it may result in a breach of the rule and expose the lawyer to criminal charges. Commentary 3 provides that if the lawyer takes possession of the physical evidence, as Mr. Murphy did here, the existence of the evidence should be disclosed or it should be delivered to the authorities.

[18] In this case, the video occupies precisely the same legal position as did the Bernardo tapes. The video documents the commission of a crime. Like in Bernardo, it is likely child pornography. The impact of the video mixes inculpatory and exculpatory elements. It is inculpatory as it puts the accused together with the complainant in what appears to be sexual circumstances. I was not advised whether there are circumstantial indications from the video itself to indicate where the two are or when the video was taken.

[19] Mr. Murphy seeks to use the video to show that the relationship between the accused and complainant was amiable, contradicting the allegation that the accused had coerced or forced the complainant. However, despite this intention, the video does not fall into the exception delineated in Commentary 2 for purely exculpatory evidence. Mr. Murphy did not argue that it did.

[20] The law is crystal clear from Murray and the Rules of Professional Conduct that the police and prosecution have to be given access to the video. Mr. Murphy of course will also have access.

[21] There were some potential issues that were discussed at the oral hearing concerning the use of the video once access is given. Although it is unusual, now that the access to the video has been ordered, another short hearing ought to be held to discuss any issues that might arise in this regard. Counsel indicated that they were amenable to a hearing for this purpose.

D.E HARRIS J. Released: February 23, 2021