Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 13 - Evidence
OTTAWA, Wednesday, February 11, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-220, to amend the Criminal Code and the Copyright Act (profit from authorship respecting a crime), met this day at 5:19 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: I apologize to you and commend you for your patience in waiting for us. We had business in the chamber until just now. We are all a little rushed getting here.
With us today are Mr. Jeffrey House and Ms Marian Hebb, members of the Law Union of Ontario. Please proceed.
Mr. Jeffrey House, Member, Law Union of Ontario: I thank you on behalf of the Law Union of Ontario for granting us this opportunity to speak to you today about this important bill. I am a criminal lawyer and Ms Hebb is a specialist in copyright law. We hope that when we get to questions you will bear that in mind in terms of to whom you direct your questions.
The Law Union of Ontario strongly believes that the bill before you is fatally flawed both from the point of view of its constitutionality as well as from the point of view of good public policy.
Whatever the bill's intent, in our submission the effect of the bill is to infringe the right of free expression that is set out in section 2(b) of the Charter. In our submission, the bill is overbroad in several ways. First, it infringes on the guaranteed right in the Charter; and, second, it uses means to achieve its end which are far broader than necessary.
The bill seizes the copyright of not only works that are substantially based on crime, as sometimes one hears about on convictions for crime, but also where there is depiction of crimes or where crimes are recounted. In our submission, you are not talking about a book which is substantially based upon a crime if the crime is mentioned in passing. The bill mentions the creation within or outside Canada of a work that recounts or depicts the commission of an actual offence or is based substantially on it. We think the words "recount" and "depict" broaden what would be caught by the bill in a very unacceptable way.
As well, we believe that the bill is overbroad in that it refers to hybrid offences -- that is, offences that could be proceeded with by indictment or summarily. The bill takes into its ambit all of those sections of the Criminal Code.
I had the opportunity to read Mr. Wappel's testimony. He seems to think that the bill is directed at Paul Bernardo or Clifford Olson. I have prepared a brief list of other sections of the Criminal Code that are caught. They are hybrid offences. In other words, persons convicted of any of the offences in the list could have their copyright seized if they dared to mention their crime in a book or other work of art. We have shoplifting, challenging to a duel, lending a firearm to a person under 18, mutiny, bookmaking, polygamy, alarming Her Majesty, treason, and intimidating Parliament. A broad swath of offences is caught by this bill.
Clearly, the bill does not require that people be incarcerated. It may even be -- and this I leave to those of you whose French is better than my own -- that it is not restricted to people who have been convicted of crimes. The French version of the bill refers to "une personne a été déclarée coupable." As I understand it, that would include people who have been conditionally discharged. They are found guilty but conditionally discharged. I may be wrong about that, because I admit most heartily that I am no expert in French.
The Chairman: I am told that you are correct.
Mr. House: That is good to know. I hope that this is the first of a series of times when I am right.
We have no doubt that any act which purports to seize the copyright in any book, film or journalistic article does infringe the Charter, and we find that it is rather a specious idea that we are not interfering with expression but only seizing the proceeds of expression. We are not talking necessarily about someone sitting in jail. The work of writing a book over a period of time takes effort, and effort that cannot be remunerated becomes more difficult to achieve. We feel that it is a specious idea that this bill only seizes moneys rather than infringing upon freedom of expression.
By analogy, a number of countries in the world have beautiful constitutions where there is freedom of expression but where it is unlawful to possess more than a certain minimal quantity of newsprint. In these countries, you can only produce a small number of newspapers. It is an economic infringement, an indirect infringement, on the right to freedom of expression.
The Law Union previously provided a written submission, which I commend to you. The kind of works that are made more difficult to produce by this bill fall into three categories, and on each of those categories it is appropriate that there be as wide discussion as possible. The fact that these would be made much harder to produce is a fatal flaw in the bill, whether it is unconstitutional, which we believe it is; or whether it is simply a matter of being terrible public policy.
The first of the three categories -- and, I know you have heard about this so I will be brief -- is the "I am innocent" category. Unfortunately, in this country and others, innocent people do get convicted of offences. The Morin case has been mentioned, as has the Marshall case and perhaps the Steven Truscott case.
So that I can suggest to you how important this kind of thing might be, I ask you to consider the case of Alfred Dreyfus. Approximately 100 years ago, Alfred Dreyfus wrote a book about his alleged treason. That book was read by Emile Zola, who, having consulted with Mathieu Dreyfus, the brother of Alfred Dreyfus, wrote J'accuse, which was one of the most important articles in French history. If Alfred Dreyfus had been unable to produce that book or had been prevented from producing it, there would have been a real effect on French history. Therefore, because a person has been convicted of a crime does not mean he or she does not have something to say.
The second category is those who were convicted and who did the things of which they were convicted but who argue that the law itself is improper. In Canada, the Morgentaler case is one in which a person was incarcerated and, perhaps, collaborated on works. I do not know the financial details, but perhaps the moneys that were received from the publication of the books assisted in the final determination by the courts that the law itself was unconstitutional. That, again, would be a serious change in Canadian public policy.
In the United States, Martin Luther King wrote Letter from the Birmingham Jail. That book was very successful in the 1950s and had some part in funding the civil rights movement in the American south. Again, you would have a situation where all of King's rights to copyright to that book, if he could convince someone to publish it, would have been seized.
Finally, I would note that this second category controverts one of Mr. Wappel's contentions, namely, that if a person is innocent, he cannot possibly write about the crime. Someone from this committee said that that is not true of Donald Marshall, who was there and had a different point of view of the crime. This applies especially in the case of people who are convicted of crimes which are later overturned as unconstitutional. Obviously, they know all about the crime. Morgentaler knew all about what it was to assist someone to have an abortion, and it was important for him to write why he did that and what it involved.
Third, you have a category of books or other works that could be called descriptive or repentant. Perhaps members of this committee can remember the work of Caryl Chessman, who, before being put to death in the United States, wrote an important book about it. Roger Caron's Go Boy has been talked about. In the United States, The Autobiography of Malcolm X and Eldridge Cleaver's Soul On Ice were both books that depicted in passing, and more than that, in substantial chapters, crimes that they had committed. Yet those are important books historically in the United States. It would be inappropriate to have a policy that would make them more difficult to produce.
I can also think of John Dean, who was convicted of perjury. He wrote an important book about the Nixon White House and included the pressure that was put on him to commit perjury. There are many more examples of that.
In conclusion, we feel that this bill cuts a swath out of Canadian public discussion for no good reason. It may be possible that a narrow kind of prohibition would make sense referring only to individuals, but section 163(8) of the Criminal Code makes it unlawful to publish anything where there is undue exploitation of sex and any one of the following subjects, namely, crime, horror, cruelty and violence. It is an offence to publish any of those things.
There probably is good law on the books for what really is the aspect that should be addressed. In our submission, the rest is political posturing.
Ms Marian Hebb, Member, Lawyer, Law Union of Ontario: I will speak about the second branch of Bill C-220, which amends the Copyright Act by adding a section whereby certain copyrights vest in the Crown with the effect of restricting freedom of expression and putting Canada in breach of international obligations.
The copyright branch of Bill C-220 has an explanatory note which claims that the bill does not forbid publication and is only intended to facilitate the seizure of profits. This is incorrect. The bill provides for automatic forfeiture of copyright, which would otherwise vest in the defender. Since copyright arises on the creation of a written work and not just on publication, the author loses his or her rights before he or she is able to deal with them. Only the copyright owner can authorize publication. On forfeiture of copyright, the author loses his or her right to publish, not just the right to royalties or other proceeds.
Despite the apparent intention of the proponents of this legislation, the author loses the right to express his or her ideas through publication. Hence, only Her Majesty, as the copyright owner, can authorize publication. The government can suppress the work or, if it does choose to publish the work in question, it can censor parts of it. For this reason, the bill also violates freedom of expression as guaranteed by section 2(b) of the Charter.
Can it be justified as a reasonable limit on such freedom as provided in section 1 of the Charter? If the bill were sufficiently narrow and focused so that it prevented only the Bernardos of this world from creating and profiting from sensational works about their crimes, it might be defensible. In fact, the bill is far broader. It catches many works that would be wrong to discourage. My colleague has given you some examples.
No one can know what breadth the courts will ascribe to a work which is substantially based on a particular offence or the circumstances of its commission. This particular language is much more significant in the copyright branch of Bill C-32 than it is in the branch which amends the Criminal Code.
What does "substantially based on" mean? Surely, a person has a right to know whether or not a work he or she might produce would fall within the strictures of the new provisions. The extremes may be clear. A sensational account of an offence would be caught by the expropriation provision of the copyright branch of the bill, but a reference to the offence in a lengthy autobiographical work would probably not be caught. On the other hand, under the Criminal Code part of the bill it would be caught. Even a mention of an autobiographical work would fall under the description of a work which recounts something.
Between the two extremes there is a large grey area in which most potentially affected works will fall and which the legislation gives no guidance. Governor General award winning author Rudy Wiebe is working on a book in collaboration with Yvonne Johnson, a native woman who is in prison for murder. The authors are concerned that their book may be caught by Bill C-220. The publisher will have similar concerns.
If permitted to stand, the new provision, even if open to challenge, will have a chilling effect on authors and publishers who have neither the stomach nor the resources for unpredictable and possibly extended court proceedings. It has been said during the proceedings of your committee that there is no retroactivity contemplated by this particular bill and that the sections are not retroactive. The proposed section 12.1 does not refer to the creating of a work, it refers alternatively to its publication. Section 12.1 refers to a work being created, prepared or published. The definition of "publication" in the Copyright Act refers to an ongoing activity of publication, not just a first publication. You can have a book that has been out there for 10 years and if it fell within this section, it could prevent either a reprint of the book or ongoing reprints of it, and a paperback edition would probably attract some attention. Much has been made of that retroactivity section and it is a real problem.
Copyright is exclusively a federal area of jurisdiction and the Copyright Act defines this right. If the Copyright Act were to be amended to extinguish certain rights under certain circumstances, it might be difficult to claim that the government lacked proper jurisdiction to do so. However, it may be a different matter when the copyright is taken from a creator and vested in the government. The creator's intellectual property is taken from him or her and he or she is deprived of money just as surely as if a bank account were taken away. I would characterize this as a pre-emption of contractual rights.
Regardless of any such domestic issue, by amending its Copyright Act to permit the expropriation of copyright from certain authors who are protected in Canada under our Copyright Act, Canada will be in breach of its international obligations. It will be in breach of the Berne Convention and the NAFTA and the TRIPS Agreement, which is an annex to the agreement established in the World Trade Organization.
The Berne Convention establishes minimum rights and allows certain limitations on protection only in special cases that do not conflict with the normal exploitation of the work or unreasonably prejudice legitimate interests of authors. While there is language in the Berne Convention which has been used to justify censorship by governments, it is generally understood that the convention does not permit expropriation of the author's rights.
In conclusion, Bill C-220 is socially undesirable legislation which represents an unjustifiable violation of the right to freedom of expression guaranteed by the Charter of Rights.
The bill totally disregards the fact that works created by convicted persons may be socially and politically valuable and may advance public understanding of serious problems facing Canadian society. Additionally, the seizure of copyright by the Crown breaches Canada's obligations under the Berne Convention and other international treaties.
We appreciate very much your consideration of these points we have raised and urge that you recommend that the Senate defeat Bill C-220.
We would welcome your questions.
Senator Cogger: In the summary of your submission, you state that even if this legislation is within federal jurisdiction, it is incompatible with Ontario provincial legislation which deals with the same subject-matter. Which legislation would that be?
Mr. House: Perhaps Ms Hebb can speak to that better. There is an Ontario act in place. It is my understanding that the proposed federal act could take the place of the Ontario act because of the final federal power to occupy a jurisdictional area.
Ms Hebb: I have forgotten the number of the Ontario bill but it was notorious, and it is not a model. I would not say that it avoids all the problems of constitutionality, but it provides that money is paid to the public trustee, into a fund which is held for five years, and victims may make claims against that fund. The bill before you is a proposal which would undermine that scheme in that, if copyright is expropriated, the government -- that is, the Crown -- as copyright owner, would own the proceeds and the Ontario public trustee would be requesting that that money be paid to the public trustee of Ontario.
Mr. House: The law is called Victims' Right to Proceeds of Crime Act, 1994. It was adopted in Ontario in December of 1994.
Senator Cogger: Has it been tested before the courts?
Mr. House: I do not believe it has.
Ms Hebb: It has not been tested yet, but I understand that there may be a test in the near future. The Ontario act is modelled somewhat on the original New York legislation, the so-called Son of Sam legislation, which was struck down. The New York legislation has since been recast to try to avoid the unconstitutionality that had been the problem with their first legislation.
Senator Cogger: Logically, assuming that that kind of legislation were to sustain the test of constitutionality, et cetera, under your brief this is a matter that should belong properly in provincial legislation because it deals with property and civil rights.
Ms Hebb: If it belongs anywhere, it would belong in the provincial jurisdiction.
Mr. House: There are arguments on the other side -- and, I do not think it is cut and dried -- but it is our view that it is properly a provincial rather than a federal matter.
Senator Cogger: During your presentation, Ms Hebb, I was surprised when you seemed to suggest that if the law was narrow enough to catch the Bernardos of this world that would be fine, but that the Wappel bill appeared to be too broad in its reach. Would you like to rephrase that?
Ms Hebb: Yes, I should like to rephrase it. I hope I said that it might be or would have more of a shot at being defensible because this is one of the risks that we must take in a democratic society. However unpleasant it is, we must hear what such persons have to say. I think there are remedies already for these situations. If Mr. Bernardo makes a lot of money, I am sure there will be people who will sue him. I doubt very much whether someone like that will be able to keep the money. I think this is "feel good" legislation. It is hard to criticize it without making people think you are carrying a brief for Bernardo.
Mr. House: If this bill does interfere in any way with a Charter right, then the government would have to show, first, that there is a pressing and substantial concern to which the bill is addressed. That would be the easiest thing for them to show. In this case, it is unlikely they would be able to do so. The other things they would have to show are that it is proportional and that it limits the right as little as possible. Clearly, that they could not show.
Senator Cogger: In that sense, the Ontario legislation that you described would stand a much better chance of passing those tests. It seems to part the proceeds somewhere, giving the victims or people who file a claim an opportunity to have a chance at the money while not constituting an outright deprivation of the copyright.
Mr. House: In a sense, this bill seizes any potential profits before the victims have a chance at them.
Senator Cogger: It goes farther than that; it seizes the copyright.
Ms Hebb: When it seizes the copyright, I think it makes it highly unlikely that a lot of books will be published. I am sure that will be the effect.
Senator Lewis: There would be no proceeds.
Ms Hebb: Yes. A publisher will not touch a work like this with a 10-foot pole unless they have deep pockets.
Senator Gigantès: You said that this is badly drafted. I said that in a letter but Mr. Wappel complained to me today that I had no business saying so before the committee had made a finding. He may have a point there. The language I used allowed him to think, with some justification, that I was making myself a spokesman for the committee, for which I apologize to the committee. Nevertheless, I did say it was badly drafted. You said it was badly drafted. Could you expand on this?
Mr. House: There are a number of areas that are not well thought-out, for example, the part which states that the offending work must be substantially based on the crime or must depict the crime. Anything that is substantially based on a crime also depicts the crime, so the "or" there makes no sense.
Another example -- and it is a technical one but is one that causes some concern -- is that there is no reference to enterprise crime. I do not know if this has been discussed before you here, but it is not enough to redefine "proceeds of crime" and expect that that will have an effect in law because, the way that section 462.3 and subsequent sections of the Criminal Code read, unless it is an enterprise crime, there is no effect.
I do not know if that was done because they do not want the first part of the bill to have an effect, but that is the real consequence. It seems that whoever drafted it was thinking in symbols, perhaps, rather than looking at how the Criminal Code actually works.
Ms Hebb: I believe that an order for forfeiture can only happen at the time of sentencing.
Mr. House: Yes; that is the law.
Ms Hebb: That is another flaw.
Senator Gigantès: Mr. Wappel says that the forfeiture takes place at the time of sentencing but is retroactive to the time of charging. Is that a bad effect?
Mr. House: In my view, it means that the pernicious consequences of the bill, namely, that anyone who is convicted of any offence, including shoplifting, cannot publish a work about it, would be retroactive to the point when the person is charged. Obviously, if you are a publisher and want to publish a work, there is a two-year period before the trial. At the end of the trial, you know that there may be this consequence where it will go back to the date of the charge. Therefore, you will not enter into any contract because you do not know if the contracting party has any copyright.
Senator Gigantès: A person eventually found innocent would be precluded by this bill from publishing anything to defend himself during the trial. They might eventually find him innocent.
Mr. House: I believe it would have that effect.
Senator Gigantès: By way of example, if we take former federal minister John Munro, who was charged and the charges were dropped 10 years later, if this bill were in existence, he would have had a difficult time finding a publisher to produce a book giving him the chance to explain his view.
Mr. House: Yes, because there would be a fear that he might actually be convicted. In fact, the bill is only for those people who are convicted. Nonetheless, if you are a careful business person, I do not think you enter into a contract and produce many books that later turn out to be the property of the Crown.
Ms Hebb: We know as well that in the Morin, Marshall and Milgaard cases, the books and articles written during the period in which those people were convicted played a large role in the fact that there were eventually new trials. Subsequently, they were found to be innocent. This would not happen.
Senator Gigantès: Can you guide us in improving this bill? Another approach I heard from Mr. Wappel today was that if there are flaws in a piece of legislation, it is our business in the Senate to correct them.
Mr. House: I do not think I am able to guide you, but I will simply state my opinion.
It may be that there is a lot of sympathy in Canada for the idea that Paul Bernardo's crimes are obscene and that he should not be able to get any money for what he did. If this is conceived of as a kind of obscenity law, then you are talking about the considerations that the Supreme Court of Canada went through in the case of R. v. Butler, where section 163(8) of the Criminal Code was found to be an interference with the freedom of expression, but justified given the very narrow focus.
If there were a decision in committee that, yes, despite everything, we want to redraft the bill, I would look at what Mr. Wappel said. He did not talk about shoplifting. He did not talk about anything except the two atrocity cases. My reaction would be, "Okay. Let us talk about atrocities. Let us talk about serial murderers." It would still be contrary to freedom of expression, but there might be an argument some day that it is justified, given the pressing concern. I do not really think so, but at least there are some possibilities.
Ms Hebb: I would look at both sections of the bill separately. As far as the copyright section is concerned, I think it is not defensible in any way. It is fatally flawed. You cannot use the Copyright Act to expropriate something and transfer it to another owner. That part of the section is an enormous embarrassment to Canada.
I think the section on the Criminal Code is also fatally flawed because it is an incursion into provincial jurisdiction. It is dressed up here as partly copyright law and partly criminal code law. I do not see how you can fix this with tinkering.
Senator Gigantès: Is criminal law also a federal responsibility? The Criminal Code is promulgated by the federal government and is applied by the provinces. Am I wrong in that statement?
Mr. House: You are right. It is a question of whether the first aspect that we are talking about is criminal law in pith and substance or something else masquerading as criminal law.
These are difficult questions to find answers to, and I think there are arguments on both sides. On balance, we think it probably is not criminal in pith and substance but contractual. Obviously, arguments can be made on the other side.
Senator Gigantès: As an imaginary but specific case, let us assume we have a serial rapist who started his serial raping on his daughter, who was bitterly traumatized. She actually goes to the jail and says, "Daddy, why did you do this to me?" In a cathartic exercise, she writes all about it. If I am not mistaken, according to this bill, the proceeds from that book would be seized, would they not?
Mr. House: Yes, they would. I have no doubt about that.
One of the funny thinks about the bill is that family members are included. I understand that is because you could get around the bill by having the proceeds directed to your family members. However, there are many non-family members with whom one could have a friendly relationship and get around the bill that way. It is a very odd idea that because you are the family member of a serial rapist, you would not be able to profit, even if you are the victim. That would be an interesting relationship with the Ontario statute, which guarantees certain proceeds to the victim. This bill would make that impossible.
Senator Gigantès: This cannot act retroactively on Mr. Clifford Olson, can it?
Mr. House: He would still have the copyright.
Ms Hebb: I believe he has not yet published a book.
Senator Gigantès: His lawyer has set up a little company in the United States which sells videotapes of Mr. Olson describing how to catch a small child and do the horrors to it that he did. This is one of Mr. Olson's sources of income.
Ms Hebb: Under proposed section 12.1 that I read out to you before, this work is continuing to be published. I think it would be caught, although I have seen in your transcripts some suggestion that it would not be caught. I hope that does not encourage you to pass the bill. I believe it would be caught.
Mr. House: The odd thing is that Clifford Olson could describe how to capture children and do whatever to them without referring to anything that he did. There are all sorts of ways to be a monster, and they do not necessarily require the recounting of a specific crime. He could say, "I did not do this, but here is what I would like to do."
Senator Lewis: I think we all know the object of the bill. I suppose it is aimed mainly at these horrific crimes. I take it that is why you have this list.
Mr. House: I wrote that up last night. There is a lot more that could have occurred.
Senator Lewis: I assumed that. When it says that a person is convicted of an indictable offence, I take it these are some of the indictable offences.
Mr. House: It says a hybrid offence or an indictable offence, or one that could be proceeded with by indictment.
For many of those offences, the Crown elects to proceed summarily, but it could be proceeded by indictment. The law is clear that those hybrid offences would be included. Many of those are indictable offences and a few are hybrid or mixed offences.
Senator Lewis: Some of these seem to be ridiculous.
Mr. House: It is completely foreseeable that there would be ridiculous consequences of this bill. It is a question of whether it would be three months, six months or a year from now. There will be cases which no one will be able to justify.
Senator Gigantès: You do not mention polyandry.
Mr. House: No, I do not. Did I refer to polygamy?
Senator Gigantès: Yes, you did. That is where a man has many wives. Polyandry is the opposite, namely, where a woman has many husbands.
Mr. House: It is defined both ways in the Criminal Code. I will have to check into that.
Senator Beaudoin: I tried to find one reason for this bill and I must confess that I failed. The only purpose of this bill is to get rid of two possibilities. In other words, they do not want monsters to make money from crime. Is that not what they want?
The more we look at this bill, the more we see that it is against the division of powers and the Charter of Rights. How can it be justifiable under section 1 of the Charter, except in the case of Bernardo or some others.
I have great problems with that. They confiscate the copyright of a person because the person is making money in relation to a crime. I understand that. People are frustrated. They say, "Bernardo should not make $1 million with his crimes." While I may understand that, it is a punishment that is added to the sentence.
Under our system, if a person is committing a crime the person loses liberty and freedom. That person is put in jail. However, he may inherit $1 million from his father or make a beautiful book on such and such a subject. In that case, we say, "That is all right, but if you make money from the crimes of which you are guilty, then we will confiscate that money." It is either provincial law or purely negative. This is what I do not understand in the bill.
If a person is saying, "I was a criminal. I was terrible. I made a terrible mistake. I will now write a beautiful book for the youth of tomorrow, telling them not to do that and to be just and fair," et cetera, he is precluded from doing that with this bill. This person may also be the victim of a judicial error, which happens from time to time.
Senator Gigantès: You do not know that that does not happen often.
Senator Beaudoin: That is right. It does happen. In a case like that, the person who is not guilty should have the right to write a book to explain why he is not guilty.
What I do not understand in the bill is that we punish a person because money is involved. That is strange to me. I may understand the frustration because people cannot see why someone should make money out of a crime but if the person is making money, it is because the person has a copyright which is authorized by law. If it goes against the sections of the Criminal Code dealing with pornography, or things of that sort, the person is still subject to the Criminal Code, is he not?
Mr. House: Certainly.
Senator Beaudoin: The person may also be prosecuted under the Criminal Code if the person is violating a section of the Criminal Code. Apart from the punishment, I cannot see why we have that bill before us.
Senator Gigantès: What if he does not sell a single copy?
Senator Beaudoin: How can I vote for a bill when I see that there are encroachments on provincial law powers in section 92, property and civil rights, and expropriation of the proceeds of a copyright? How can we vote for a bill that is against the freedom of expression -- that is, unless the author of the bill is in a position to establish that it is justified, in a free and democratic society, to seize the proceeds of his copyright.
Mr. House: It is an overridingly important governmental objection sufficient to justify interference with fundamental rights. That is what cannot be done with this bill.
Senator Beaudoin: Yes, but will it not be better to say, "You are making $1 million with your atrocities. You will be prosecuted in an action in civil law or common law." That is possible, is it not? If the person is making money with a book about his crimes, nothing would preclude a family or the victims of the crime from suing the author of the crime civilly.
Mr. House: A victim would be better off if the author of the crime had assets as opposed to the government having the assets.
Senator Beaudoin: If I understand this -- and, correct me if I am wrong -- he is giving the copyright to the Crown.
Mr. House: He is not giving it, they are taking it.
Senator Beaudoin: The Crown has done nothing but the Crown is the owner of the copyright.
Ms Hebb: It is reprehensible that the Crown will then make the decision to publish the book if it is a book that is scandalous, or whatever.
Senator Beaudoin: I cannot understand how this is in favour of the victims of the crime. If the man is making money from his crime, then sue the man.
Ms Hebb: I agree with everything that you are saying. However, it is worse than that. It is not just to get the proceeds because authors often do not make money. Lots of things that are written and will fall under this act will make little or no money. This stops the person from having the book or the article published. It is not a question of taking something and expropriating the copyright if there is a lot of money to be grabbed. It is expropriated anyway.
Senator Beaudoin: Is it not Mr. Wappel's purpose to say: You will not have the copyright. You are expropriated. Who is getting the money, the Crown?
Ms Hebb: Yes, the Crown is getting the money.
Senator Beaudoin: But the victims cannot sue the Crown?
Mr. House: No.
Senator Beaudoin: What is the purpose of the bill?
Senator Lewis: There is no provision in the bill as to the disposition of any proceeds.
Senator Beaudoin: A victim may say, "That man has committed many crimes. He is in jail for many years. He is making $1 million. I will sue him. I have the right to sue him." In that case, we do not need this bill. The Crown will have the proceeds if a few people vote for the bill, but it does not improve the situation of the victims. I cannot understand. It is a complete mystery to me.
Ms Hebb: Her Majesty would have to sign a publication agreement with the publisher in order to obtain these ill-gotten gains.
Senator Beaudoin: Will they pay the victims?
Ms Hebb: No.
Mr. House: You are absolutely right. The victim is better off if the person has assets that can be seized as a consequence of a tort -- that is, a civil violation.
Senator Cogger: Mr. Wappel appeared before us. He suggested that, instead of the money disappearing into the Bahamas or beyond the reach of the victim, if it was in the hands of the Crown at least it would be here. That is to say, the amount of money would be public knowledge. As the proponent of the bill, this is a means of facilitating access to the funds by the victims.
Senator Beaudoin: I am ready to follow that reasoning. How is this taking place? Suppose a criminal is making $1 million writing a book on his crimes. Does this money then belong to the Crown in right of Canada?
Ms Hebb: Yes.
Senator Beaudoin: How will the victims share this?
Senator Lewis: They do not. There is nothing in the bill which addresses that.
The Chairman: There would be no proceeds because the Crown would have to agree, first, to publish, which it would never do.
Senator Lewis: Are you suggesting, Senator Beaudoin, that we should encourage the writers of these salacious books?
Senator Beaudoin: No. I cannot see how this bill is improving the situation of the victims of crime. If there is no improvement for the victims, what is the purpose of this bill? I do not understand.
Senator Gigantès: This is a feel-good bill, senator.
[Translation]
Some people, some clod-hoppers from the Reform Party will feel a bit better if this legislation is passed.
[English]
This is to please the Reform Party.
The Chairman: The only person who can answer that question is Mr. Wappel, who will appear again before we vote on this bill.
Senator Beaudoin: It is a complete mystery to me. It does not help the victims at all. However, it does punish the author if he makes money.
Ms Hebb: No. It punishes him anyway. He loses his copyright and his ability to be able to publish. For example, if someone who is convicted writes a letter to the newspaper and addresses their crime, theoretically, the newspaper should get the permission of Her Majesty to publish the letter.
Senator Beaudoin: If that is the case, there may be significant difficulty demonstrating to a court of law that, in a free and democratic society, it is justifiable to do that. There is the violation of the Charter of Rights and the violation of the division of powers in which he has a long way to go. In addition to that, it does not help. It is purely negative; it does not help anyone.
Ms Hebb: In the case of someone writing an article or a letter to the newspaper, that is an example of stifling public discussion. The question of these big bucks are not involved. There are questions not only about the proceeds, as you have outlined so well, but also about the stifling of the other discussion, which does not produce proceeds.
Senator Gigantès: However, It will provide employment for some bureaucrats.
Senator Doyle: Have you any idea how many lawyers are members of the House of Commons?
Ms Hebb: I believe a great many.
Mr. House: Probably 75 per cent.
Ms Hebb: It is not as much as it used to be.
Senator Cogger: It used to be 75 but it has changed.
Mr. House: Is it now 80 or 90 per cent?
Senator Cogger: The figures go the other way.
Senator Doyle: I ask that question for the obvious reason that I am still reeling over the fact that this bill twice passed unanimously. I am surprised that members were so taken up with this bill's potential to please voters that no one bothered to look at what they were passing into law.
Mr. House: It may be that they were responding as politicians rather than lawyers at that point because I suppose no one wants to get tarred with the likes of Clifford Olson. That is the only explanation I can give. It is shocking that this bill passed the House of Commons unanimously.
Senator Doyle: One would think that some time between the first vote and the second that one poor lawyer would wake up in the dead of night and say, "What have I done?"
Ms Hebb: This is the house of sober second thought. We certainly hope that you will have that sober second thought, because this should not happen.
Senator Doyle: I must say that sober second thought is benefited with witnesses such as yourself and, in particular, Richard Mosley. When Mr. Mosley was here, he made a particular point of the fact that, no matter how you approach it, you cannot turn writing itself into a crime unless it is pornography.
A book about pornography is not necessarily pornography, as a book about murder is not murder. He lay great emphasis there that, before leaping into all the technicalities brought out by the Charter and by other approaches, including copyright, this is not a piece of good common sense.
I receive mail from people saying, "Please save our dear Bill C-220." I am at a loss to know how to reply to them. I have heard so much about the futility. You were asked what you would recommend to salvage the bill and you said you would not salvage it.
Mr. House: That is the bottom line. If we must come up with recommendations to salvage it, we would narrow it tremendously. However, the bottom line is that there is nothing that deserves to be salvaged.
Senator Watt: I should like to have a clear understanding.
What happens if the person who broke the law is charged but he is not convicted? Does a question arise between the Copyright Act and the Criminal Code? What rules kick in, and at what point when you are dealing with a person who has been charged but is not convicted?
We do not want the person who has been convicted to make money from his crime. That is one purpose of this bill, as I understand it. However, a person who has been charged is innocent until proven guilty, is that correct? Under this particular bill, the person who is charged has his rights at stake at this point because he could be convicted even before he goes through due process.
Ms Hebb: As soon as he is charged, the bill kicks in and he loses rights.
Senator Watt: If he is convicted, the situation is clear. What if he is later found not guilty? My worry here is that a person who is charged might have only the means of publication to try to prove his innocence. In this case, it seems that right is taken away before the person is convicted.
Mr. House: They do not say that openly but that is the effect.
Senator Watt: Let me try to throw in something that might work. We are dealing with the Copyright Act and the Criminal Code. We must take into consideration at some point the tools that will be used. What kicks in after, let us say, the Copyright Act?
Ms Hebb: The Copyright Act can actually kick in by itself.
Senator Watt: The act will cover the person who has been charged by assuming that he has already been convicted.
Ms Hebb: Yes. The proposed section 12.1(2) specifies that the act applies to any work following the time when the convicted person is charged.
Senator Watt: This is very worrisome. Convicting someone before he goes through due process, before he is convicted, worries me. It would help if we could use some of the legislative examples that we have seen in the history of this country. There are people who have been wrongfully convicted for the right reasons and they have been proven innocent. Can we take those cases and use them as examples in this bill? Would that help to clarify the matter?
In this particular area, we are in a position of trying to pass a law under which we might one day make a mistake. Let us say that a person has been charged but not convicted and his rights are taken away. Let us say that his only recourse is to write a book, to tell his story in order to try to get out of the predicament he finds himself in. We are taking away that right. That is my understanding.
Mr. House: It is interesting -- and, perhaps the committee knows this -- that Michael Harris, the author of Donald Marshall's story, published a full-page article in The Toronto Sun about how this law would have affected his ability to write that book. He basically said that he would not have been able to write it. That is a single example. You could probably ask other people.
That is significant to me, and it is not just the about the book. The author was able to write the book and there was a public outcry. It became clear that the man was innocent. There was a whole inquiry which lead to changes in the Criminal Code. The Stinchcombe decision in the Supreme Court of Canada refers specifically to the Marshall inquiry. A whole chain of events flowed from the publication of that book. This is very important.
Senator Watt: It is very dangerous.
Senator Gigantès: Subsection 12.1(3) also worries me. It states:
For greater certainty, copyright in a work that would otherwise vest in a convicted person but vests in the Crown by the application of subsection (1) does not revert to the convicted person on the completion of any sentence imposed with respect to the offence but continues to vest in the Crown.
This means that the punishment extends beyond the punishment.
Ms Hebb: That is right. Senator Beaudoin said this before. This is like an added punishment.
Senator Beaudoin: It is a second sentence because he is successful.
Senator Cogger: As we are discussing these matters, we are aware that, in the Bernardo case, video tapes were made. Who owns the copyright to those videos?
Ms Hebb: Whoever made the film owns that right. In that case, it would have been Paul Bernardo and his wife, presumably.
Senator Cogger: On what basis, then, did the judge order the destruction of the tapes or order a prohibition against airing those tapes again? Is that not a grab by the Crown of a copyright?
Ms Hebb: In that instance, obscenity law would have covered that.
Senator Cogger: I could see that one coming. Was the obscene nature ever proved? Did anyone go to trial for possession of obscene material?
Ms Hebb: Mr. Murray, the lawyer for Bernardo, was charged with possession of obscene material, or something of that sort, but I think that charge was later withdrawn. Perhaps the charge was making pornography, because he copied them.
Senator Cogger: If Bernardo could find a jurisdiction where those tapes were not perceived as pornographic or criminal or whatever, he has the copyright and he has the right to sell and distribute and display those tapes, as sadistic as that may sound. I have not read a decision specifically on that finding, yet somewhere the Crown or the authorities have interfered with that right.
Ms Hebb: I do not see that you need this bill to deal with that problem.
Senator Cogger: No, this bill did not exist then and the Crown decided to act anyway.
Senator Gigantès: In that case, can the judge decide to wipe out those tapes -- that is, seize and destroy them?
Mr. House: As I recall -- and I should really re-read this -- those tapes were made evidence. Although the public usually has a right to view evidence, during the trial the judge made a ruling that was not challenged. He said that the tapes could be heard but not seen and that the tapes would be kept sequestered within the vaults that are used for evidence. I cannot say whether he really had a right to do that. No one made much of a fuss, as far as I know. I do not think Bernardo's lawyer was concerned about that at the time.
Senator Doyle: Subsequently to the use of the tapes during the trial, the parents of the murdered women approached the judge and asked that the tapes be destroyed and he agreed that they should be.
Ms Hebb: I do not believe there is any obligation under the Criminal Code to return seized evidence of that nature.
Senator Doyle: He made sure they were destroyed.
Senator Beaudoin: Can the judge order the destruction of the videos?
Mr. House: Yes, I believe the judge has that power. Usually, counsel is asked whether they have any objection to an order to destroy the evidence, and usually counsel says "No." That would be the case for a common pornographic video.
I think the judge does have that power, but I would have to look carefully.
Senator Cogger: Are you familiar with this publication called Journal of Prisoners and Prisons?
Ms Hebb: Yes; I have seen it.
Senator Cogger: I think all senators have received it. It was sent to us by a professor of criminology at the University of Ottawa. In there, he says the editorial board of this publication has agreed to support a Charter of Rights challenge to this legislation, if it is passed.
Ms Hebb: I am not aware of that.
Senator Cogger: I do not know when this publication was founded, but do you know if they challenged the Ontario bill?
Ms Hebb: I do not believe there have been any challenges to the Ontario bill thus far, but an enormous amount of creative writing is taking place in the prisons. There is a great deal of education and people are involved in creative writing courses. We have had some quite splendid writers emerge from prisons where they have learned skills that perhaps they had not had before, and they have been able to turn their lives around. It has been quite amazing. That journal, which is very highly regarded, is one evidence of that rehabilitative work.
People do not usually write to celebrate their crime. There is more of a repentant tone to most of what is seen.
Mr. House: Section 164 of the Criminal Code refers to a warrant of seizure of child pornography and a number of other things of that nature. The judge can make an order of forfeiture. It is not precisely that it be destroyed but that it be forfeited. Your guess is as good as mine as to where that goes then.
The Chairman: Ms Hebb, I have several questions about copyright. You mentioned that this bill is in contravention of our agreements under the Berne Convention and other agreements. What consequences might flow from violating the Berne Convention?
Ms Hebb: It is not something about which an individual can complain. A country would make complaint that Canada's domestic laws were not attune with its international conventions. Under the WTO, there is a dispute mechanism. Again, a country would go to the dispute mechanism and there would be a forum in which Canada would have to defend its practice. I can see that there could be a complaint.
The Chairman: You mentioned NAFTA and the TRIPS agreement.
Ms Hebb: Yes.
The Chairman: It is my understanding that the Berne Convention does not have a whole lot of teeth. The teeth come in through the NAFTA and other agreements.
Ms Hebb: That is right, because they have dispute resolution mechanisms, unlike the Berne Convention.
The Chairman: In an effort to try to do something to improve the bill, do you think that, instead of transferring copyright to the Crown, it could be left with the original owner of the copyright, whoever produced this, but that any royalties that might flow from that copyright would then come to the Crown?
Ms Hebb: That would mean there was no reason for the copyright branch part of the act at all, and you would simply be relying on the first part of it as criminal legislation dealing with the proceeds of crime.
The Chairman: Perhaps this comes back to you, then, Mr. House.
Ms Hebb: I find it difficult to conceive of proceeds of writing being proceeds of crime, even if you arbitrarily define it as such. It is not money laundering. It is not like the example that was given in your proceedings about buying an insurance policy or something like that. This is something that someone has to sit down and work on for years, perhaps, and put in a lot of effort. It is not the same as money laundering. It is not tracking proceeds. It is a completely different activity. I think it is ludicrous to describe proceeds of writing as being proceeds of crime.
The Chairman: I thank you for waiting for us tonight and for appearing before us. As you can see, you words fell on fertile ground around this table.
The committee adjourned.