Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 14 - Evidence
OTTAWA, Thursday, February 12, 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 10:54 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Today, we have witnesses from PEN Canada and from the Writers' Union of Canada. Please proceed.
Mr. Rudy Wiebe, Past Chair, Writer, Writers' Union of Canada: Susan Musgrave, chairman of the Writers' Union of Canada, sends her regrets. She has asked me to speak in her stead.
I speak today for seven organizations: the Writers' Union of Canada, the Playwrights Union of Canada, the Writers Guild of Canada, the League of Canadian Poets, the Periodical Writers Association of Canada, le Societé des auteurs, recherchistes, documentalistes et compositeurs, and the Union des écrivaines et écrivains québécois.
Together, our organizations represent over 5,000 professional writers in Canada, including book writers, screenwriters, playwrights, journalists and poets who live and work in English or in French in all parts of this country. Our professional interests include preservation of the right of all citizens to write and publish freely.
We would like to thank the Senate for the careful consideration you have been giving to this legislation since last October, in stunning contrast to the unbelievable haste of the House of Commons where, reportedly, it was passed in five minutes. This is an alarming and all encompassing and Draconian law that would suddenly forbid every Canadian from writing or reading about an enormous area of our social experience.
We understand the concern that prompted Bill C-220. A few persons who have gained notoriety because they have committed terrible crimes may profit from their works about their crimes. Even in the most unlikely event that this were to happen, we as writers have greater concerns.
First, Bill C-220 encroaches on the freedom of expression not only of writers who have committed crimes and on their so-called "collaborators" but also on the right of all Canadians to participate in a democratic society without unjustifiable restrictions on their right to know.
Second, writing in prison has been a time-honoured way through which many prisoners have found their own redemption. In so doing, some have made most significant contributions to literature and society's knowledge of its own frailties and failures.
Third, we submit that expropriation of copyright contravenes Canada's international commitments with respect to literary works and other intellectual properties.
We urge you to reject Bill C-220. If it becomes law, we fear its consequences. You have heard some of these arguments before, but we want to emphasize them because they are the points of law that writers feel are relevant to us.
Proceeds of writing are not "proceeds of crime." "Proceeds of crime" are money or property obtained by robbery or fraud or assets bought with stolen money. Royalties from writing and copyright are not obtained by crime. To regard them as proceeds of crime is conceptual fallacy. Bill C-220 creates new offences, not punished by jail but by expropriation of income or copyright, that will inhibit writing and impose a totally unacceptable restriction on free expression. Under this amendment, any payment from the creation of a work that recounts or depicts the commission of an actual offence by a convicted person will become proceeds of crime. This description would cover autobiographies, novels, short stories, plays, screenplays or even a poem, if such an offence is mentioned in it.
The proceeds of writing, transformed by this section into "proceeds of crime," will be forfeited to the Crown as an additional penalty and unrelated to the compensation for any victim. No judicial discretion would be allowed for the imposition of this penalty. It is automatic on every indictable crime.
The drafters of the bill have said that only serious crimes are covered. This may be the intent but this is not what the bill says. A person writing about his or her crime, perhaps a minor one such as shoplifting, is subject to the same treatment as a serial killer. The law makes no distinction between crimes.
In Canada, we pride ourselves on not having political prisoners, but it is sobering to think that a person such as Martin Luther King would not be able to publish an account of his political protests in a country, such as Canada, with this law. In Canada, citizens occasionally resort to peaceful protests, for example, on environmental issues, which have sometimes resulted in breaches of the law. We do not condone criminal acts and accept that protesters must suffer the consequences of their behaviour. However, no matter how serious the charge, the price should never preclude being stopped from telling their side of the story. This penalizes all of us as citizens, not just the person convicted.
The amendment to the Copyright Act is, of course, particularly offensive to writers. It affects us directly in absolutely everything we do. From the moment a person affected by this proposed new section puts pen to paper, Her Majesty owns what he or she writes.
If any given offence is or may be proceeded against, such ambiguity will have a chilling effect. Writers will censor themselves for fear of running afoul of the law, for who wants to spend long hours of professional expertise on a work and then simply have it taken away from them by the state on the basis of its content? This sounds very much like totalitarianism.
Internationally, I have spoken with Soviet writers who said they could write anything they pleased -- they just could not publish it. This sounds very much like something the Senate committee has heard before. You can write all you want; you just cannot publish it. That went on in the Soviet Union for a long time, and I talked to a lot of writers about it. Of course, we would not have such a thing happen in Canada, but who knows? If elected government representatives pass a bill like this in five minutes, who knows what they will suddenly decide regarding content and what is appropriate and what is not? One thing is clear -- the law is available, if they want it, for the expropriation if they wish.
With or without self-censorship, this law would make it most likely impossible for an affected author to deal with a publisher or a producer because an author involved in an offence may not own the copyright. The Crown would be the joint owner of the copyright with Her Majesty.
In my 20 years of experience selling film rights and writing scripts, under such conditions, no film, let alone a book, will ever be produced on these matters. The cost of producing films is simply too high for any producer to risk it on material he could not absolutely control in the sense that he was buying something that he knew was owned by the owner. No one will ever risk millions of dollars for a profound and necessary motion picture such as Life with Billie would require. That is the story of a severely abused woman who pleaded guilty to manslaughter in connection with the death of her husband. Nor will they ever risk it on a book such as the one with which I have been involved and about which I will speak in a moment.
Through control of copyright, Her Majesty will be able to censor the work either by suppressing it totally or by requiring changes to its content prior to publication.
In the past, probing articles, books, films and documentaries have played a key role in the release of wrongly convicted persons. We only need mention them -- Guy-Paul Morin, Donald Marshall and David Milgaard. The point is that these kinds of stories are much less likely to be told when there is likely to be forfeiture of either proceeds or copyright or both. Should we, as Canadians, risk having on our law books and our consciences a law which makes it less likely that we hear these stories?
We submit to you that Bill C-220 is a clear and devastating infringement of the freedom of expression guaranteed by the Charter of Rights and Freedoms -- which is the supreme law in Canada and all other laws are subordinate to it -- because of the financial penalty it imposes on convicted persons who choose to write, and because it expropriates their copyright on the basis of the content of what they write.
Bill C-220 may go some way to assuage public indignation at the idea of a publicity-seeking Clifford Olson or Paul Bernardo making money, but they and others like them will never make a cent with or without this bill. Civil remedies are already available to victims of crime, and there is no need for Bill C-220. As George Jonas wrote so appropriately: We do not need a sledgehammer to put in a contact lens.
Finally on the legal matters, Bill C-220 contains provisions that conflict with Canada's international treaty obligations affecting copyright, including the Berne Convention for the Protection of Literary and Artistic Works and the TRIPs agreement. Bill C-220 is a clear contravention of Canada's international obligations. It will be an embarrassment to Canada and a humiliation to its writers.
I travel internationally to some extent. I was at a UNESCO meeting representing Canada in Paris just last June on the subject of the status of the artist. UNESCO has some 130 member-states. I am glad that I did not have to say, for example, that Canada has a law that expropriates copyright on the basis of content in certain areas, because no other country in the world does this. That would be most humiliating to me and to my country, Canada, which has this glorious reputation.
I want to speak further about my own experience. I have been a writer and a teacher of writing in Canada, the United States and Europe all my life. My first novel was published when I was 28, and I have since published some 30 books.
In November 1992, I received a letter from Yvonne Johnson, an inmate at the Kingston Prison for Women. In it, she told me she had just read my novel, the Temptations of Big Bear. She wrote to me that she was blown away by the novel and she wondered how I could know so much about her great-great grandfather?
Big Bear, her ancestor and the hero of my novel, was, of course, the greatest Plains Cree chief. In 1876, he refused to sign Indian Treaty No. 6, which would have surrendered 120,000 square miles of land -- an area larger than the United Kingdom -- to the white newcomers.
Nine years later, in 1885, Big Bear's band was involved in the rebellion, and he died in 1888 from the effects of his imprisonment for the actions of his band.
Yvonne Johnson is a direct descendent of this man. I want to read a letter she wrote to the Senate about Bill C-220 and about its effects on her. She and I have discussed this at length several times. The letter is dated October 29, 1997:
My name is Yvonne Johnson, a member of the Red Pheasant Band of Saskatchewan. Presently I am serving a first-degree murder conviction at the Okimaw Ochi Healing Lodge near Maple Creek, Saskatchewan.
She was four years in the federal penitentiary in Kingston before it was closed.
During the past five years I have been working with writer Rudy Wiebe of Edmonton. The book --
-- the book we are writing --
-- contains my life experiences, and how I came to be convicted. Furthermore, this book is a visible healing process that has helped me gather better understanding, and learning to express myself via writing.
I think it is of the utmost importance that you hear the views of a currently incarcerated offender. This bill will affect all people in the future who come into conflict with the law, and their constitutional right for freedom of expression. I did not write my book to glamorize my offence in any way. An RCMP officer suggested I write a book so that others may learn from my mistakes and hopefully not follow my footsteps. I am a survivor of numerous types of abuse, both afflicted by myself and by others upon me. I have been silenced by my abuse over the years, however, the process of writing has helped me to break that painful spell. If Bill C-220 were in effect, I would suffer in silence forever, along with other people who might heal through this avenue.
She is referring here to writing.
Greater still is the loss of understanding and knowledge for those who would benefit from reading my life experiences. As Carl Jung emphasizes --
She is a great reader of Carl Jung.
-- to come out of mental illness of all kinds you must first break the silence, confess, seek closure, and ask for some form of understanding and possible forgiveness; and then choose not to go where you have been before.
...I stand as a person on behalf of all people incarcerated in Canada, encouraging you to empathize with how Bill C-220 will directly affect all of us.
I would be happy to discuss with you further the effect working together has had on both of us. The book we have been working on, Stolen Life: The Journey of a Cree Woman, is expected to be published by the end of May.
Honourable senators, we, the professional writers of Canada, ask you: Do not allow the actions of a few monstrous criminals to restrict and inhibit the rights of every Canadian to write, to read and to know.
When Mr. Wappel testified before the committee here, he mentioned Clifford Olson over 20 times in his testimony. Can you imagine Clifford Olson's response if this bill were to pass: Hey, do you see that? I made them pass that bill and it affects every Canadian. He would be bragging and he would have every right to brag.
Think of the international implications. Do you think Mr. Axworthy would be able to defend this? Do you think Mr. Chrétien, when he travels abroad, could say proudly that, in Canada, we expropriate copyright from everyone who writes about certain subjects. Imagine that.
This bill is not worthy of us as proud and free Canadians. It will fence us in with arbitrary censorship at home and it will humiliate us abroad. We ask you, in your sober, considered wisdom, to put this bill where you have the power to put it -- where it belongs, in the trash.
Ms Katherine Govier, President, PEN Canada: Honourable senators, with me today is Mr. Stephen Reid, a member of the board of directors of PEN Canada and the author of the novel Jackrabbit Parole. He is a man whose work is most pertinent to the bill under discussion today.
First, I will give you some background on our appearance before you. International PEN, which stands for Poets, Essayists and Novelists, is a writers' human rights group. It was founded in London, England, in 1921 by the distinguished authors Joseph Conrad, H.G. Wells, G.K. Chesterton and George Bernard Shaw. International PEN's first charter formed the intellectual underpinning for the United Nations' Article 19, which is the original statement on human rights.
The Canadian chapter of International PEN concerns itself primarily with writers in oppressive regimes who are persecuted for the peaceful expression of their beliefs. For instance, we fought for the release from prison of Wei Jingsheng, the distinguished Chinese dissident who served 20 years in jail for his pro-democratic views. We continue to lobby on behalf of the Burma/Myanmar's Ang San Kyi, and we fought with the full cooperation of the Canadian government to forestall the dreadful execution of Nigeria's beloved author and activist Ken Saro-Wiwa.
By its very nature, PEN Canada is seldom active in this country because Canada is a free nation. Only in cases of state censorship do we become involved. Bill C-220 has activated our membership and that is why we are here today.
You have our brief before you. I will not repeat it in its entirety. I intend to speak to you more informally and more personally.
As Mr. Wiebe has said, to enact this bill would be to bring a deep embarrassment internationally to this civilized and tolerant nation. It would be to deprive all our citizens of their fundamental right to express and to hear.
You have heard and will hear numerous legal opinions that this bill is not and cannot be made "Charter-proof." Clearly, Bill C-220 would be bad law, unclear, overbroad, unenforceable, inconsistent and, primarily, unjust. As Mr. Wiebe has said, in defining the proceeds of writing as the "proceeds of crime" it would equate writing a book with raping a teenager. In making forfeiture of copyright a part of sentence for an indictable offence, it would revert to a centuries-old practice of seizing property from a convicted person.
The author of this bill, Mr. Tom Wappel, claims that it is only about money, but that is not the case. To deny the creator of a work ownership of copyright is to infringe that person's freedom of expression. The distinction cannot be made between payment for the work and ownership of the work. To single out an author of a book about crime for a penalty no other author suffers is to attempt to suppress certain forms of expression on the basis of content. That is clearly a violation of our supreme law, the Charter of Rights and Freedoms.
Bill C-220 would go further. It would penalize not only those writers who have been convicted, but all other writers who choose to "collaborate" with a convicted person. That brings us into the realm of true crime stories and into the area of greatest concern for the writers and the people of Canada which is for the wrongfully convicted.
As I have said, freedom of expression applies to listeners and readers, as well as to writers. Bill C-220 would prevent us, the citizens of Canada, from hearing the stories which flow from the circumstances leading to crime, trial, jail, pathology, rehabilitation, remorse, regret -- even, I submit, those stories which must reflect the pathological refusal to feel remorse and regret. All these stories are significant and vital to us as a people.
As writers, we choose to look at this law from the standpoint of great works. If Bill C-220 had been law at the time, it would have seized the copyright and profits and very likely prevented the publication of The Autobiography of Malcolm X, of Dostoyevsky's Crime and Punishment, and even Confessions by Saint Augustine, a major work of repentance based upon such morally repugnant acts as stealing a pear. Yes, under Bill C-220, shoplifting, as an "enterprise crime," would place the offender in permanent copyright jail.
I make this great-works argument because we are part of intellectual history. We do not stand separate from the past but are in a continuum with it. We must be concerned that the climate we create would not militate against the development of the very civilization which we enjoy.
Perhaps you are not swayed by the great-works argument. Perhaps you might say that this is Canada and, after all, we are not expecting St. Augustine to show up in one of our courts. After all, this is 1998 and the classics which underpin our civilization have already been written. Let us look at some recent Canadian examples.
First, had this law been in place in 1957, the book which led ultimately to the release of the wrongfully convicted, young Stephen Truscott could not have been published.
Second, had this law been in place, Kirk Makin's major opus, Redrum the Innocent, which was created in collaboration with the wrongfully convicted Guy-Paul Morin, could not have been written.
Similarly, Michael Harris' collaboration with Donald Marshall, the young Micmac Indian wrongly incarcerated for murder could not have been written, nor its profits shared with the victim, and Donald Marshall might yet be in our jails. If this law had been in place, Patti Starr could not have published Tempting Fate, Roger Caron could not have published his Governor General's award-winning book Go-Boy, and Stephen Reid could not have published Jackrabbit Parole.
I have questions for you in conclusion. What we saying with Bill C-220, Mr. Wappel's proposed law? Are we saying that the impulse to crime, that violence itself, that justice, imprisonment, punishment, rehabilitation, and remorse are not aspects of the human condition worthy of consideration in a democracy? Are we prepared to face the silence that will fall on these areas of life when the stories that emerge from them are entangled in legal barbed wire?
Furthermore, what is it that brings us to the brink of even considering such a law? Are we faced with some great threat which would justify locking knowledge of these subjects away in a cell called censorship and throwing away the key? Does this proposed law solve any real problem for us? Is there a "pressing societal objective," as the Charter would have it? The answer is no. There have been precisely eight books published by convicted criminals in the last decade in Canada. None has justified or glamourized crime. None has made more than a pittance for its author, money which would amount to a wage of probably less than a penny an hour.
Of what are we afraid? There is no secret to the answer. The argument in favour of this bill is an argument called victims' rights, and yet the import of this bill has nothing to do with victims' rights. It is about re-punishment of an offender. It is about suppressing information. It is about placing a convicted person in the double-jeopardy situation of having his very words that he might utter in his own defence controlled by the Crown which has judged him guilty. I submit to you that the real authors of this bill are Clifford Olson, Paul Bernardo, Karla Homolka and their like. Without the bogus threat of their profiting from a hypothetical work of art, there would be no Bill C-220, and it is a bogus threat.
Writing, as Mr. Reid has said, is an attempt to re-establish a moral relationship with the world. This trio would seem to be incapable of such an act. Agreed, it would be repugnant for Paul Bernardo to grow rich from writing a book about his rapes and murders, but he will not do so in Canada. No book by a serial killer or violent rapist detailing his or her acts with the desire to glamourize or benefit from the crime has ever been published in Canada, to my knowledge. No publisher has shown itself willing to offer large sums of money for the creation of such a work. No Canadian public has rushed forward to buy such gleeful tales of violence and cruelty. If, by some utterly bizarre conjunction of the planets, Bernardo were to produce such a book, if a publisher were to take it up and market it, if people were to buy it, the families of his victims could immediately sue him for any profits in civil court.
In other words, the problem to which this bill offers itself as a solution, and a very bad solution at that, does not exist.
Bill C-220 is a broad-handed slap in the face to all citizens of Canada, taking away our right to know and to understand a very real part of our world. It is blatant censorship and, as such, would greatly diminish us all, while leaving quite untouched the very persons at whom it is aimed.
Mr. Stephen Reid, Member, Board of Directors, PEN Canada: Thank you for the opportunity to come this morning. I appreciate the remarks of both Mr. Wiebe and my colleague Ms Govier.
I wrote my first book when I was in Millhaven penitentiary. I want to talk about the personal side of writing in the penitentiary. I continue to teach writing in the penitentiary today. I work with victims and offenders on the street and inside. We work with a prison journal, a journal on prisons by prisoners -- the head of the editorial board is here this morning -- and through a network of workshops and classrooms across the country.
I want to talk a little about my first novel. I wrote it after I had 12 and a half years in. When I went to my cell one day, I was just really tired of everything, and really tired of the yard and what was going on. I was very much a part of Millhaven as I ran the book-making and everything. I shut my door and wrote 90 pages. It took me about two weeks. I can remember my pen going through the paper when I was writing these things. Without the Crown or the state or anyone else looking over my shoulder, I wrote in an unrestrained way. None of that writing or very little of it is actually published today, but that writing was what brought me back and plugged me back into the world. It was writing about me and what was going on my life and the people I had hurt and the people who had hurt me throughout my life.
I find it important that the people I talk to today be allowed to write in an unconstricted and unrestrained way. Their writing is important, even if it is not published. To make a bad joke, many of these writers should be stifled because there are a lot of bad writers. They are working with the written word and many of them do not have technical prowess. However, writing in prison is writing from an experience, not about it, so it remains powerful. If it only works for that person, it is important. It is most important for me and the people who work with me to write in that unrestrained way.
In the United States, people are writing in the third person to come around the Son of Sam laws that have been enacted in some 37 states. It is a mish-mash. It keeps getting overturned and brought up again. Most of the guys publishing down there will write in the third person, and then there is no stopping it. I think it is important that people in prison write in the first person. It is important that people sit down and enter the wounds of their lives and the things that people did to people around them. It was important to me. It was important on the other end.
After 12 and a half years of a daily ritual of degradation -- which is what prison is, and I accepted that because I made my choices in life -- I sent my manuscript out. Someone came back and said they not only liked it but they were willing to pay me for it. It was not a lot of money. I received $6,000 in total for close to three years' work. I was paid over two years, $2,000 on delivery of the first draft and more on the day of publication. I received the most ever paid for a novel by a prisoner in Canada. We are not talking about profit here. I do not think this bill is about profit, and I do not think it ever was about profit.
I work in restorative justice. I work with many victims. If we are going to work for victims, we must find a way through the hate. We have to help people inside find a way through the hate, and writing is one of those ways. If we are to have a genuine movement to reduce crime and to heal victims in this country, then we all must find a way through the hate. Writing is one of those ways, and we should encourage writing at all levels inside.
When it becomes repugnant and someone is exploiting a crime by selling pictures of their wedding, or whatever, the avenues are present in our law to handle those things. Canadians do not need another law to tell them how to be decent.
Senator Beaudoin: Thank you for your very convincing arguments. I have already come to the conclusion that I cannot see how I can vote for a bill like this because it fails on two grounds. It fails, first, on the division of powers. The least we can say is that there is some encroachment into provincial fields under section 92 -- the question of expropriation, et cetera. The main argument is probably about freedom of expression.
We have been living under the Charter of Rights And Freedoms since 1992. Obviously, no one disagrees that this bill goes against freedom of expression. The only way to justify this bill is under section 1 of the Charter. It may be justified in a free and democratic society. I think that is the paramount argument.
There is something mysterious here because the only possibility would be to help the victims. However, they already have that right to sue. If the author becomes a millionaire, of course, the victim may sue him to take the proceeds. If I am not mistaken, they will attribute the copyright to the Crown. Then my problem is this: What is the Crown to do with that copyright? How is it helping the victims of the crime?
The distinction you make, of course, is that to write is not a crime unless you go against the Criminal Code. The proceeds are not from the crime; they are from writing. I have some difficulty with the logic of the contrary opinion. Could you elaborate more on this question of justification in a free and democratic society?
Perhaps the first intention was to help the victims, but obviously this is not at all the result of the bill. You are illustrious authors, and I would like to know a little more.
I am convinced that there is no justification.
Ms Govier: I feel that this law presents absolutely no viable means of helping victims. Victims' rights is a very legitimate movement.
Mr. Reid has said that to really help people through the morass of crime and its consequences, one must work to dispel the hatred. I believe that this law would, in fact, do the opposite. Seizing copyright and defining proceeds of writing as proceeds of crime seems to offer absolutely no solace or assistance to victims.
Mr. Wiebe: I see nothing of benefit to the victims here. I see this strictly as a penalty against the criminal. It does not refer to the victims in any way, shape or form. It is a further penalty upon the person already incarcerated, which is the argument that was most important for Yvonne Johnson on this matter. It is just another thing which gives the prisoner feelings like: I am already suffering. I am already here for 25 years. It is another thing to oppress me. I cannot even write about it with the faint possibility that perhaps some of this will become public and will elicit a response from society to what I feel. No, this is a further penalty upon me.
Senator, this bill has nothing to do with the victims.
Senator Beaudoin: If it is a further penalty, and I think it is, then under the Constitution, it may be done only by criminal law. However, this is not a criminal law.
Mr. Wiebe: It is automatic.
Senator Beaudoin: Writing is not a crime. How can you penalize writing?
The only thing we can do here is to say you have the right to write. Of course, the criminal law applies to obscenity, and things of that sort, but it is already there.
The purpose of having a second punishment is not even justified by criminal law because it is not criminal law. That is the only thing I have to say.
Senator Cogger: Are you familiar with the disposition of Ontario's provincial bill regarding victims' rights to proceeds of a crime? That act seems to be more in line with the Son of Sam legislation -- which appears to be the genesis of this whole idea -- where the copyright remains with the author. The proceeds are turned over to a trustee to be held in trust for a period of time, thereby allowing victims to exercise a claim. Perhaps you could comment on that kind of legislation.
Mr. Reid: You are referring to Bill 210, the Ontario bill that is in effect now.
Senator Cogger: It was adopted in 1994.
Mr. Reid: It is a fairly loose bill, but it does not take copyright from the author.
The one thing I do not like about that bill, as in this bill, is that it seizes copyright at the time of convention. With the Ontario bill, any time that you publish or make any money, it automatically goes somewhere. What bothers me about this law and the law in Ontario is that the money goes into this amorphous fund. As a prisoner who would be writing, it would feel to me like one more punishment.
If someone comes along and says, "Steve, you gave me a bad afternoon that time you walked into the Royal Bank on such and such a day, and I want to sue you for your money," I might not like that but I could understand it. I have a moral relationship with that person because that person was a victim of my offence.
I do not think Matthew Barrett or John Cleghorn need my money. I do not think they will sue me. I do not think they need my $6,000.
If someone said that to me, I could understand that. I could understand a person saying: "You came in with a gun, put me on the floor, and I am mad at you. I do not like it and I want your money." That option is there for them under law. There is a common sense issue there. I might talk with that person or I might not, but at least I understand the moral relationship.
When the government comes in and arbitrarily makes a move on any work -- and it may be a redeeming work -- and puts it away just in case someone is offended by this work, I feel that is devaluing the individual one more level.
Senator Cogger: Did your groups make representation to the Government of Ontario at the time of the passage of that bill?
Ms Govier: No. That bill passed in about a day.
Mr. Reid: It was given three readings on December 8; was kicked upstairs on December 9; and was law on December 10.
Ms Govier: Yes. That was at the end of the term of the NDP government.
Senator Gigantès: Is this a kind of mental epidemic that is striking legislators?
Ms Govier: There is more. PEN Canada has investigated this. It was the original example of this in Canada. The law holds that any moneys paid to a convicted offender for the sale of their story are immediately forfeited to the public trustee. The public trustee is to hold those moneys for seven years and use a portion of it to advertise to victims of the crime that the money exists, and the victims may choose to launch civil suits.
Since its passage in 1994 until today, to our knowledge from our investigations, $11 has been paid to the public trustee by a member of PEN Canada who bought the film rights, obviously for a token amount, from someone serving time who was known as the Gay Robin Hood. He was suffering from AIDS and robbed a bank in order to help AIDS victims.
The $11 fee was paid to the public trustee. However, as we were told, it put the public trustee in a very difficult position because there was not enough money there to advertize; so there it sits. That case is just waiting for a Charter challenge to strike it down, but that is an expensive and difficult process. Meanwhile, I think people sign these contracts outside the country.
However, the Uniform Law Commission has looked at this and there are now some rumblings of similar provincial statutes being passed in some of the western provinces which would attempt the same kind of thing. So, yes, there is a bit of a "virus" going around.
Senator Cogger: Mr. Wiebe commented on how the Prime Minister and Minister Axworthy may find themselves embarrassed on the international scene if this bill were passed. It is important to point out that this bill is here because it was passed in the House of Commons unanimously. Presumably the Prime Minister and Minister Axworthy voted for it, if they were there.
Senator Gigantès: They were not present. I checked.
Senator Cogger: Obviously someone was asleep at the switch.
Mr. Wiebe: I quite agree. Nevertheless, I think they would be held responsible for it, and it would be humiliating for them, believe me.
Senator Jessiman: I am sympathetic to what you say. Although I was not here yesterday when the Law Union of Ontario appeared, I read their brief. They said that if the bill were sufficiently narrow in focus that it prevented only the Olsons and Bernardos of this world from creating and profiting from sensational works about their crimes, it might be defensible.
To improve this bill, the "may" in "may be proceeded against by indictment" would have to be taken out.
The Law Union of Ontario represents 300 lawyers, law students, professors and legal workers. Although one may be sympathetic and say that we should not pass this, these lawyers are saying that if it were narrowed down to catch only the Bernardos of this world, it could be made law. I should like to hear your comments on that.
Ms Marian D. Hebb, Legal Counsel, Writers' Union of Canada: I appeared here yesterday as a representative of the Law Union of Ontario yesterday. That comment was intended to be hypothetical. We also said that we thought it was impossible to narrow it so that it would focus only on those particular individuals. Perhaps we used unfortunate wording.
Senator Jessiman: Senator Cogger has already asked about the Ontario act governing victims' rights to proceeds of crime. Obviously it has not been very effective if only $11 has been deposited. I would be sympathetic to that but you say that it could be subject to challenge as well. Tell me the grounds on which it could be challenged.
Ms Govier: We have received numerous legal opinions that it is subject to a Charter challenge and would likely fall on the bases that we have discussed; that is, it discriminates between types of expression on the basis of content. In other words, if an author writes a book or an individual gives us his words on the subject of the crime, he is subject to this penalty where others are not. So it goes to freedom of expression in general.
Senator Jessiman: However, the person writing has obviously done something illegal to another person. He most likely had no money at the time he committed this crime. Now he writes a book and there is money. I sympathize with victims. I think we have gone too far on behalf of the people who commit these crimes. I am all for rehabilitation, but there has to be another side to this matter. I know very little about this act other than what I have read here. The idea behind this bill makes some sense to me. If it is challenged under the Charter, I should like to attend the hearing.
Ms Govier: In our society, convicted criminals do not lose their human rights. They serve a stipulated, defined sentence. Bill C-220 would seize in advance some property they might earn through another means. I consider it double jeopardy.
Senator Jessiman: I am speaking more to the issue of the money not being set aside for the victims. You are saying that the perpetrator of a crime should be allowed to receive this money and the victims can go after it. I think it makes sense that there should be money set aside for victims.
Senator Gigantès: As you may have seen, you are speaking to the converted. Senator Doyle and I are accused of agreeing with you because we both write. Authors in Canada do not earn a lot of money. I have written three books and I have donated the proceeds to scholarships and cancer research because I did not want it said that I used research facilities paid for by the Senate for personal profit.
May I just ask you please not to quote Saint Augustine. I have not been able to bear that since I read his 400-page thesis on whether rape is a sin and he concluded that, if the woman enjoyed it, it is.
The Chairman: You may answer that if you wish.
Ms Govier: I have no comment.
Senator Doyle: I am grateful for your testimony. As Senator Gigantès and I will admit, we have pretty well made up our minds about how we should vote on this, but I find myself particularly concerned about how it came to us as a bill which no member of any party contested. We hear very often that they are a rotten lot and that they all think the same. It is said of us as well. But Lord protect us from houses that come up with unanimous recommendations. Even on the declaration on World War II, 10 days after it started, we did not come up with a totally agreeable House of Commons or Senate.
I have been impressed with the knowledge which you seem to have about the perils of writing for a living. I am impressed by the knowledge that you have about people who would diddle with the way you must earn your living. I say "must" because writing, as we all know, is a compulsion, among other things.
However, since your knowledge is as wide as it is, do you know of anyone who is writing a book about what we are talking about today?
Ms Govier: No, I do not.
Senator Doyle: Then how did it happen? There must be some men and women of good intent over there, and surely we are not all heroes over here, but to a public which has difficulty understanding many things, it might be a happy circumstance if at some point someone took up this strange mystery of the unanimous decision. Whoever writes our report will have to deal with that.
The Chairman: At this point, I believe Mr. Wiebe wants to reply to you, but it might be of some interest to the committee members to know that we have had a request from the NDP critic for Heritage Canada, Wendy Lill, to appear before the committee. You may well have your chance at her.
Mr. Wiebe: I was simply going to mention that I was speaking with Ms Lill yesterday, and she said she truly wanted to speak to the Senate, especially on this account of the bill went through the House of Commons without a single dissenting vote. I would encourage you to hear her if at all possible.
Senator Gigantès: That sounds like hearing from someone who ran over a person with their car and then explained that it was simply a mistake with no intention of killing the victim, that the driver was thinking of something else while driving.
Senator Lewis: I wanted to remark on Senator Doyle's comment that there was not one dissenting voice nor one objection raised in the House of Commons. It is my recollection, and I do not have my Hansard copies here now, that there was at least one person who spoke critically about this bill in the House of Commons. You are right when you say that when it came to the vote, apparently it was unanimous. However, there was some criticism.
The Chairman: Senator Pépin has a question.
[Translation]
Senator Pépin: I am also quite sympathetic to what you are saying. I am new to this committee. I have read the briefs and your presentation has touched me a great deal. Regarding victims, I would like to play devil's advocate.
We all remember the Bernardo trial and the fact that the media wanted the tapes to be broadcast for all to hear, over the objections of the victims' families. The court ruled that the families should not be forced to relive this tragedy. I agreed completely with that decision. I am very happy to learn that only eight books have been published and that not a single one of them has glamorized crime. I agree that writing can help the rehabilitation process. There is very little likelihood that criminals like Mr. Bernardo will ever write a book that anyone will agree to publish. Moreover, all victims have the right to launch civil action. If an author sells the rights to his book to a film company, could a suit be launched to halt production?
Senator Beaudoin: He could be sued by the victims in civil court.
Senator Pépin: Could the film's distribution be blocked or is the only recourse available to sue for damages?
Senator Cogger: A person could convince a court to grant an injunction on the grounds that distribution of the film or of the work would cause him considerable or irreparable harm.
Senator Pépin: Then the victims are protected as well.
Senator Beaudoin: Through regular civil law channels.
[English]
Senator Lewis: But would not the action by the victim against the convicted person be an action with respect to the crime?
Senator Beaudoin: No. It would be with respect to the proceeds.
Senator Cogger: It would be for damages arising from the crime.
The Chairman: Could I interrupt and ask the witnesses to offer to Senator Pépin some sort of answer, or a commentary at any rate?
Ms Hebb: These points were also made in that crossfire. If there was something in the film that was itself a violation of the Criminal Code, for instance, if it was in violation of obscenity provisions, then action could be taken against the film. There could be an injunction, the film could be seized, and so on.
If this were a film about Jackrabbit Parole, there is no crime in the writing. There is no crime in the book. The film could not be stopped. However, if Mr. Reid were to receive a large amount of money from that action, he could be sued, as he said before, and the victims could obtain money from him in that way.
The Chairman: That is under the present law?
Ms Hebb: That is under the present law.
Senator Beaudoin: That is without this bill.
The Chairman: Also, if the film or the book were truly obnoxious in nature, it would fall under Canada's criminal obscenity laws.
Ms Hebb: Yes, it is subject to those laws.
Senator Lewis: However, that would be a different case.
Ms Hebb: It is not a crime to write about a crime under our present law.
Mr. Reid: There have been five books written about Bernardo and six about Olson. It would be difficult in a democratic society to prevent victims from ever seeing those stories again. Victims have collaborated with some of those stories; it can be empowering. I do not think we should stop those books. We must explore those crimes.
The criminals have never made a dime from those books. Of the six Olson books, he has never seen a dime.
The Chairman: When the House of Commons dealt with this bill in the last Parliament, there was one member who spoke critically of the bill. On the second time around, after the election, when it was reintroduced, the bill was introduced on September 30 and passed on October 1, effectively without any debate the second time around.
In your opinion, is this bill so offensive that the Senate should interfere with the unanimous will of the elected House of Commons?
Ms Govier: Yes.
Mr. Wiebe: Yes, absolutely.
The Chairman: Do you think that the members of the House of Commons knew what they were voting on when they passed it unanimously?
Ms Govier: This bill has been misrepresented and misunderstood; it has been strong-armed through the house. The misrepresentation by the author of the bill is that the bill is only about profits and that it ignores further implications.
The misunderstanding is based simply on the complexities of copyright and civil law. We were told that the new members of Parliament barely even knew where their seats were at the time of this vote. A combination of haste, misinformation and misleading presentation was responsible.
Mr. Wiebe: The seconder of this bill has gone on public record in the newspapers as saying that he did not really understand the legalities of it, but he seconded it because he thought it was a good idea, or something to that effect. I would not wish to put any words into the mouth of Mr. White; however, it was clearly done at a time when there was almost no one in the house, and it may have been done deliberately. I would never impugn the actions of any members of that house. Perhaps Ms Lill could answer some of these questions for you.
Senator Lewis: Are you suggesting that they have bad attendance in the House of Commons?
Mr. Wiebe: No comment.
Senator Moore: In the process in the House of Commons, were any of your groups or any of you individually invited to come and make representation or remarks at hearings? Were you aware that hearings were going on?
Ms Govier: No, we were never invited to the House of Commons, neither in the last session where the bill went through so quickly, nor in this session. If you remember, when the bill went through quickly last spring, we were alerted of its passage by an official at the justice department. We immediately focused our efforts on the Senate. We thought that it might come back, but it came so fast and so early in the fall that we did not have a chance to ask to appear and we were not asked.
Senator Lewis: On the first occasion, in the previous Parliament, there were hearings before the Commons committee on justice and legal affairs. That was before the election. I have transcripts of the meetings.
Senator Jessiman: Were there many witnesses?
Senator Lewis: Mr. Mosley was there.
Ms Hebb: I believe Mr. Mosley has told this committee that he was asked some specific questions but was not invited nor permitted to make any other comments about the bill.
The Chairman: That is true. He did make that remark. I believe some victims' rights groups appeared before the committee then, too. We will take the opportunity to ask Ms Lill if she appears before us.
I thank the witnesses for an excellent presentation today.
The committee adjourned.