Why police pay criminals
When convicted mass killer Clifford Olson settled into British Columbia’s Oakalla correction centre last week, the tremors caused by his gruesome string of 11 murders reverberated across the country. At the same time, people inside and outside the judicial system debated and criticized the deal under which Oslon’s family was secretly paid $90,000 in return for Olson revealing the bodies of his victims to the police. “Presumptively repugnant,” said Alan Borovoy of the Ca-
nadian Civil Liberties Association. “The biggest judicial scandal in years,” according to Montreal criminal lawyer Frank Shoofey.
Even Prime Minister Pierre Trudeau was snared into the debate, defending the police actions and terming the call for a public inquiry into the debate a “crazy notion.” Relatives of four of the dead children angrily met at the Hotel Vancouver to discuss suing the federal justice system for what they believe was a bungled investigation. Nor did the crash of the cell door end the shocks, as police in Edmonton
and Sydney, N.S., uncovered local incidents linking Olson and young children—and West Coast Mounties talked ominously about unearthing even more victims of Olson’s savagery.
Above and beyond the events and outcries, a blur of outrage and urgency over larger issues raised by the Olson payoff spun in the January air like a weather vane gone wild. It involved the questions of how often police pay for information, how liberally they do so—and whether they should do it at all. The questions probed the regions of twilight justice, where cash, immunity from
prosecution and all manner of stationhouse deals are made.
To the public, the very idea of the RCMP secretly paying money to a criminal of Olson’s infamy was shocking. The Canadian image of law enforcement has been largely rooted in more romantic notions of good guys and bad, where commerce between police and child killers is unthinkable. But that was only last week’s news. In the rush to defend the Mounties’ actions, lawyers and policemen blandly argued that the Olson payoff was merely an extravagant example of the kind of business that goes on among police, lawyers and the accused every day. Says Toronto criminal lawyer Edward Greenspan: “It is utterly hypocritical of anyone from the defence bar to be against this bargain, when all we do every day of our lives is make deals that are not that dissimilar to the Olson arrangement.” Meanwhile, insiders cited instances of famous cases involving back-room bargaining, such as Toronto’s Kirby case or the conviction, using a paid informer, of Vancouver’s Palmer brothers (page 26).
There is no such thing as justice in the abstract; it is merely a compact between mew. —Epicurus, 3rd century BC
Although Canadian lawyers, policemen and politicians shrink from closer examination, the clandestine bargaining that occasionally results in payoffs to criminals keeps the ermine-lined wheels of Canadian justice turning. Examples of twilight justice include: payment in money or reduced charges to criminals for information; official or unofficial immunity from prosecution in exchange for testimony, possibly with a relaxation of sentencing and the provision of a whole new identity; plea bargaining.
The deals thrive on the kind of secrecy that the RCMP sought for the Olson payoffs—until word of the payoff suddenly leaked out last September. More details of the scheme continued to surface last week. Federal Solicitor General Robert Kaplan, suffering from apparent lapses in chronology, confirmed that he was not told of the RCMP scheme until Sept. 11 during a briefing at which RCMP Commissioner Robert Simmonds also learned of the payment. That was almost three weeks after it had been authorized by B.C. Attorney General Allan Williams and $100,000 deposited in a trust account (to date only $90,000 has been paid to Olson’s family). Kaplan told Maclean's he first heard about the deal from a reporter on Sept. 9. “It seemed unusual to me—I was disturbed by it.” Kaplan, confused about the details of the Olson arrangement, had earlier said he was told before money was paid out. He confirms now that the money had already been
transferred to the trustee before he was made aware of the bargain.
In another development, despite Kaplan’s dramatic insistence that the word of the RCMP is its bond and that there would be no attempt to recover the Olson payoff, federal justice department lawyers wrestled throughout the week with the problem of getting back the money (44 per cent federal, 56 per cent provincial) by civil suit. The idea was eventually dropped. Williams, who first denied, then admitted, authorizing the payment, remained silent.
Kaplan, however, in an interview with Maclean’s, indicated that British Columbia was talking with the RCMP about launching a suit. Meanwhile, the storm still raged about who was finally responsible. Kaplan insisted he had no power to stop the arrangement. When asked directly by Maclean's if he could have stopped it, he replied, “My answer is no.” He reasoned that he could not interfere with an attorney general’s
constitutional right to administer justice. Nonetheless, the B.C. policing contract with Ottawa clearly states that “application of professional police procedures” remains under Kaplan’s control. The debate remains unresolved, and the people who are protesting the Olson deal will probably remain uncertain where to direct their anger.
The object of some anger, Joan Olson, hunkered down in her parents’ Vancouver home, remained mute about her plans for the $90,000 “blood money,” complaining at one point to reporters: “I don’t exactly enjoy this.”
Even as controversy swirled around the Olson trust fund, newsmen began examining what University of Toronto law professor Bernard Dickens calls the “secret economy” of the Canadian judicial system—the marketplace for lowered charges, money and immunity. “The Olson case,” says Dickens, “serves to bring to light the subterranean bargaining that goes on.”
In the midst of more mundane police procedures, an officer might agree to drop a minor charge against a criminal if the man were to bring an unauthorized weapon—a sort of unofficial gun control. And a prostitute will be promised money and relocation to another city in return for testimony against her pimp. Concedes Kaplan: “A tremendous amount of police work is done through
buying evidence and dealing with sources and informers.”
Clearly, payoffs are not something police are eager to talk about. Supt. Harry Kinsman of the Halifax police department is a typical case. He told Maclean's: “If we do it, I’m not going to advertise it; if we don’t do it, I don’t even want to talk about it. It’s too touchy.” But payoffs, whether in money or the alterations of charges, are used, and used heavily. Some police forces make at least two reliable paid informants a condition of promotion. Sherlock Holmes is a fine fictional character, but his methods have little to do with day-to-day crime processing. Says one senior RCMP officer: “If you’re going to get good credible information about criminal activities, the likelihood is that you’re going to get it from criminals.”
An information tip is far more useful to a policeman than a smudged fingerprint. Says Vancouver criminal lawyer Harry Rankin: “I’m amazed the attorney general is saying [the Olson payoff] is something new. It’s just a bit more dramatic, but it happens every day.”
Information about payments is classified. Police and Crown attorneys worry about loss of confidence with the public. That is not their only concern. “If we made these payments openly,” says Toronto Police Supt. Bob Bamlett, “we’d lose our credibility with the underworld.” Although lawyer Greenspan speculates that the level of payoffs, if known, would be “staggering, just staggering,” police forces tend to minimize them. Toronto police spend less than $10,000 a year on such operations, with all funds authorized by a deputy chief. Says Bamlett: “A large payout would be $200, but they rarely cross my desk—maybe two a month.”
The Ontario Provincial Police, according to a senior official, spreads around less than $100,000 a year, feeding some 100 informants. The source of the money is a slush fund supplied by sales of seized and confiscated property. “But the greatest practitioner [of payoffs] in the country is the RCMP,” cautions the OPP official. “There’s no question they’ve been in the business longer than anyone else,” he declares.
They are also the most secret. The level of RCMP payoffs remains unknown, although some indication of the scale can be determined from the fact that the $100,000 to be paid Olson’s family was below the amount that required ministerial approval. Payoff guidelines remain secret too. Money is kept in one of the RCMP’s operating expense accounts and is theoretically scrutinized by parliamentary committees in camera. In fact, no committee has seen the figures in at least 10 years.
Although criminal investigations are
Above and beyond the events and outcries, a blur of outrage spun in the air like a weather vane gone wild
the most well-known use of RCMP paid informers, the system is also essential to so-called national security operations. Both the Keable and McDonald commission reports were studded with examples. The most dramatic was last spring’s revelation of Operation Poupette, in which a woman named Carole De Vault earned more than $30,000 for informing on the FLQ for the RCMP in the early 1970s.
Police forces resort less frequently to complete immunity and relocation in return for critical information from criminals and other informants. Authorities are reluctant to enter into such deals because of negative public reaction if details filter out, a point illustrated by the recent furore in Toronto over the terms of enforcer Cecil Kirby’s immunity.
On a less slippery moral level—but a far more pervasive one—is plea bargaining. It is the process by which a defence lawyer will bargain for a lesser charge from a Crown prosecutor rather than plunge the case into an expensive trial by having his client plead not guilty to the original charge. It is a potent and compelling bargain because the court system needs guilty pleas to operate. “If all the cases before the courts went to trial, the system would collapse in three days,” says Toronto criminal lawyer Walter Fox. They are corridor deals; neither the judge nor the jury need know they occurred. And they are effective: 90 per cent of cases in Canadian courts are disposed of by
guilty pleas. Plea bargaining, although deplored by the Canadian Law Reform Commission (1974-’75) and the Ontario Law Reform Commission (1973), is so commonplace that no one has compiled statistics on how often it is used.
All variations of corridor justice are played because they are legal and, more important to the pragmatic Canadian court system, because they work. Legal precedents such as Regina vs. Wray
(1970) and Regina vs. Palmer (1976) firmly established that payments for hard evidence were legal. These decisions also make it possible for police to promise a suspect anything whatsoever—or to threaten to do anything to him whatsoever. Brutality is outlawed, and confessions obtained under duress are not admissible in court—but any hard evidence thus extracted, no matter how deviously, can become part of the Crown’s case.
Those concepts are sometimes hard to digest for a public raised on a diet of American jurisprudence slopped over the border on cable television. The American model is one of rights de-
fined, rights protected, rights explained (“You have the right to remain silent ...”). The reality in Canada is much closer to the British model of wide and discretionary powers, especially for the prosecution and the police. Says Toronto Chief Crown Attorney Peter Rickaby, “There is a feeling in the Canadian courts that if it works, use it, so long as it doesn’t bring the justice system into disrepute.” The result is that Canadian courts and police stations sometimes resemble a bazaar in Izmir. “We tend to think of police work as something different from what it is,” says University of Toronto criminologist Anthony Doob.“We think the work of a detective is a lot fancier, rather than a very human process dealing with other humans.”
As for plea bargaining, lawyers insist the procedure is necessary and, when conducted by two professionals, benign. Says veteran Toronto criminal lawyer Julian Porter: “The bargains between Crowns and [defence] lawyers are based on predictions of what the trial systems would produce anyway.” In the vast majority of cases they are right, but the numbers of critics of corridor justice, perhaps emboldened by the public reaction to the Olson decision, are growing. Critics worry that the game, conducted in clubby secrecy, is in danger of getting out of hand.
Others worry about the secrecy of the dealers, not just from the public but from each other. In Making Crime: A Study of Detective Work, U of T crimi-
We think the work of a detective is a lot fanciery rather than a human process dealing with other humans'
nologist Richard Ericson argues: “In the jurisdiction we studied, the production of court outcomes took place backstage in discussions among detectives, lawyers and Crown attorneys .... In this process the judge serves more as an agent of ratification than adjudication. In the vast majority of cases, the accused pleads guilty and, since the common law accepts a guilty plea without proof, there is no inquiry in court concerning the construction of the case.” The same applies to the system of station-house promises of immunity. Says Ottawa lawyer Leonard Shore: “When you give immunity outside the courtroom, you’re taking the administration of justice away from the courts. The potential for abuse is phenomenal.” Perhaps the critics’ most telling charge against criminal informers is that their information may be useless or even damaging to a case. Says Regina lawyer Roy Wellman: “There is real danger in the use of informants that the information will be tainted, that the judge and jury will believe it, and people will get convicted on the basis of it.” Wellman is personally concerned because last week his client, Melvin Earl Miller, was sentenced to life imprisonment for murder after an accomplice to the murder had been granted immunity
in exchange for testimony against Miller.
Still, police and lawyers grown accustomed to the system are unlikely to alter it. Says Porter: “Look, once you allow people the right to deal, you are almost certainly going to have bad deals.” But the legal marketplace works day by day in most cases. “The crucial point,” says Peter Rickaby, “is can [the deal] meet the common light of day in a subsequent inquiry?”
Outrage over the Olson arrangement
tends to grow louder the greater the distance from the justice system. As a result, change will not come quickly. Even a politician such as Robert Kaplan, who could avoid politically damaging surprises with a more open payoff procedure, says he has no intention of reviewing the RCMP guidelines policy on informers and will leave unchanged procedural guidelines to cover cases like Olson’s in the future. Alberta Attorney General Neil Crawford, on the other hand, prompted by the Olson affair, has instructed his ministry to develop a provincial policy on police payments.
Legal observers are divided about the effect on the gathering of evidence of the proposed new charter of rights. In it, evidence would be inadmissible if it violated the charter and thus brought “the administration of justice into disrepute.” U of T law professor Bernard Dickens suspects that the gathering of evidence will be largely unchanged, “given the conservative disposition of the courts, which will finally have to interpret it.”
Others are less reverential about the concept and its meaning. “What will a judge have to do, vomit?” shrugs Toronto lawyer Walter Fox. Others hope it will prevent overzealous police work such as the recent case in which two
Quebec officers extracted a confession from a suspect by dressing up as a psychiatrist and a priest.
Legal professionals caution, however, that too much constraint on discretion ¡ in the judicial process could result in an excess of legalism that will only enrich | lawyers and clog the courtrooms. Late last week, as officials considered plans to recover the Olson payoff, the by-now defensive RCMP held a press conference to deny charges that an incompetent inl vestigation delayed Olson’s capture, and to repeat that the Olson payoff was necessary as the only way to put him in jail. Certainly, in the utilitarian world of Canadian justice, it was a successful bargain. It worked, and it was legal. (It would not have been in the United States.)
But even if the law was uncompromised, the tolerance of the public was severely strained. Said a beleaguered j Kaplan, plainly unhappy with the fallj out from the Olson case: “Many aspects of policing have a sinister dimension, and Canadians don’t really like to think j about the powers of the police and the I traditional methods used to win the convictions of offenders. That means that those of us responsible for the legality and propriety of things that happen sometimes feel very lonely.”
The events of the past few weeks may have gained Kaplan some concerned companions. By dealing in the discreet marketplace of Canadian justice with such skill, Clifford Olson may have laid the ground work for an inquiry into how it works.
With Mary Janigan in Ottawa, Malcolm Gray in Vancouver and files from Anne Beirne, Carol Bruman, Michael Clugston, Dale Eisler, David Folster, Peter Gorrie, Robert Lewis, William Lowther, Diane Luckow, Val Ross and Greg Weston.