May 22, 2015


Analysis

Advent of flea market justice?

There's a very cute but sinister game that got played by city police and the Crown in their paying cash to obtain confessions from Shawn Lamb in the killings of Carolyn Sinclair and Lorna Blacksmith.

In Canadian criminal law, a confession isn't admissible in court unless the Crown can prove it was made voluntarily. When the only evidence against an accused person is a confession that isn't admissible, there is no case. But how can a confession not be admissible into evidence? This is naturally difficult to understand because surely there's nothing more damning than when the accused actually admits to what he or she is charged with doing.

Winnipeg police Supt. Danny Smyth explains why police paid Shawn Lamb, who confessed to killing Carolyn Sinclair and Lorna Blacksmith.

Winnipeg police Supt. Danny Smyth explains why police paid Shawn Lamb, who confessed to killing Carolyn Sinclair and Lorna Blacksmith.

 

Is it now to be taken as acceptable for police to create a flea market for confessions in lieu of timely and proper investigation of crimes?

However, history has shown there are many cases where confessions have proven to be false. In fact, false confessions are now a widely recognized contributing factor to wrongful convictions. Forced or purchased confessions can be very unreliable and our courts have resoundingly recognized this fact.

Perhaps more importantly, confessions that are improperly induced, whether by physical, monetary, psychological or other means such as making deals on other charges, are also inadmissible because the criminal justice system doesn't want to be associated with police misconduct or inherently unreliable evidence.

What then should be made of the money that was paid for Shawn Lamb's confession? It was bought and paid for because, it would appear, without the confession, the police didn't have a case against Lamb.

But, and here's the rub, according to reports, the payment was made to Lamb not for the confession as such, but for him just agreeing to meet with police. In return, the police put $1,500 put into his canteen account at the prison.

Of course, it was at this prepaid meeting that Lamb offered his confession -- just a coincidence, mind you -- and we're told by police that somehow the meeting and the confession are to be taken as two distinct events for the purposes of determining whether the confession was induced with money and therefore not voluntary.

This is a distinction without a difference and it strains credulity to think people would really believe such a story.

It has also been suggested that this course of conduct was sanctioned by a Crown attorney in an attempt apparently to try and circumvent the cash-for-confession problem that would have made the evidence inadmissible. So flimsy was the attempt that in the end, the Crown agreed to Lamb pleading guilty to the lesser charge of manslaughter rather than murder.

It should be remembered that the Crown's role in the process is very different from that of the police. The Crown can only proceed with a prosecution if it believes there is a reasonable likelihood of conviction and the prosecution is in the public interest. If there was no evidence against Lamb until the confession was purchased by police, and the admissibility of the confession was at best dubious, then on what basis did the Crown proceed with the murder charges in the first place?

Many might believe that getting the confession and closing the case on Shawn Lamb is an end that justifies the means, and there is some natural sympathy for that position. We all want the criminal convicted and punished.

But there are very serious countervailing issues that should warrant attention.

What role did the Crown play, if any, in creating what appears to be the fiction that Lamb would be paid just to meet but not to confess? After all, the Crown itself didn't even believe that story when it came time to take the matter to court, and the murder charges were reduced to manslaughter as part of the plea bargain. It's lucky that Lamb agreed to plead guilty. If the Crown played along with the police, is this ethical behaviour by the Crown to try circumventing centuries-old law about confessions?

And what of the police? Is it now to be taken as acceptable for them to create a flea market for confessions in lieu of timely and proper investigation of crimes? Is money for confessions to become a model of economic efficiency for police forces? Are confessions now just a commodity rather than being treated as one of the most seriously scrutinized investigative and evidentiary aspects of the criminal justice process? There's a big difference between snitches who are paid for information and accused people who are paid to confess. Snitches form part of an investigation. Paid confessions avert the need for investigation.

To answer these questions by saying the circumstances will be evaluated on a case-by-case basis isn't adequate. Nor is it right to say everything is OK because the money led to Lamb's conviction. We are entitled to integrity in the justice system because it's what underlies our respect for it. When guilt comes down to money, it's time to ask whether the system itself has sold out.

 

David Asper is a Winnipeg lawyer and businessman

Republished from the Winnipeg Free Press print edition November 19, 2013 0

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