Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 17 - Evidence

OTTAWA, Wednesday, February 25, 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 3:23 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.


The Chairman: Honourable senators, this is the last day that we will have Senator Doyle sitting with us at this table. I would like to say a few things about him for the record.

Senator Doyle: Oh dear.

The Chairman: Senator Doyle served as an air bomber and a flying officer in the RCAF during the Second World War. As almost everyone in Canada knows, he became the editor of The Globe and Mail editorial page. He was appointed to the Senate by Prime Minister Brian Mulroney in March 1985, and it took him only two months to get on to the Standing Senate Committee on Legal and Constitutional Affairs.

Senator Doyle, I am told that over the years you have been one of the most faithful attendees in the Senate and at this committee. I understand you have even cancelled doctors' appointments to be here. You have contributed significantly to the deliberations in this committee.

In the first session of the Thirty-third Parliament, Senator Doyle took part in deliberations on Bill C-67, to amend the Parole Act and Penitentiary Act; three bills dealing with the Divorce Act and ancillary provisions; an act respecting Employment Equity; an act to amend the Constitution Act, 1867, and the Electoral Boundary Readjustment Act. In the 2nd session, it was Bill C-15, an act to amend the Criminal Code (sexual offences against children); Bill C-82, an act respecting the registration of lobbyists. In the Thirty-fourth Parliament, the first and second sessions, he took an active part in deliberations on Bill C-36, an act respecting corrections and conditional release; Bill S-14, an act respecting the law prohibiting marriage between related persons; Bill C-47, an act to amend the Canada Elections Act. This list goes on through the Thirty-fourth Parliament, the Thirty-fifth Parliament, and now the second session of the Thirty-fifth Parliament.

Senator Doyle, in the two years that I have been on this committee, I have learned to respect what you say and to listen to what you say. We will miss you very much.

Hon. Senators: Hear, hear!

The Chairman: The witnesses before us today are from the Canadian Bar Association.

Please proceed.

Senator Cogger: Madam Chairman, before we begin, I believe most members of the committee have received a letter from Mr. Wappel, including correspondence from Senator Gigantès.

Senator Beaudoin: Yes, we have.

Senator Cogger: I do not know what the committee intends to do. As far as I am concerned, Senator Gigantès is a member of the committee.

The Chairman: I received a copy of that correspondence, and Senator Gigantès stood in the chamber and explained the correspondence. As far as I am concerned, this committee accepts those senators who are put on the committee.

Senator Cogger: That leaves the minor question of whether this committee wishes to formally advise Mr. Wappel that we have taken note of his correspondence but that we wish to proceed?

The Chairman: I will do so if I am directed, but I do not believe that we need to do so.

Senator Cogger: I move that the Chairman write a letter to Mr. Wappel stating that we have taken notice of his correspondence but that we choose to keep things as they are.

Senator Beaudoin: Is he interested in appearing before the committee?

The Chairman: Mr. Wappel will return here at the end of our consideration.

Senator Beaudoin: Should we just acknowledge receipt of the letter?

Senator Cogger: No, Mr. Wappel wants Senator Gigantès to be taken off the committee. He is saying that either Senator Gigantès should withdraw himself or we should bump him off this committee. We can tell Mr. Wappel, "No, thank you. Senator Gigantès is a member of the committee and he stays"; that is, if he wishes to stay.

Senator Moore: I think your remarks are correct. Senator Gigantès rose in the Senate and spoke to this matter. It might be useful to obtain a copy of the Debates of the Senate, but I believe that he made it clear in his remarks that he intended his comments to be his own personal views and that he was not speaking for our committee as a whole. If anyone thought he was, he apologized for that inadvertent transgression.

The Chairman: That is correct. I have before me the transcript of what he said in the committee itself.

I wish to point out to senators that this committee has no power over its own membership whatsoever. That is decided at other levels than around this table.

Senator Gigantès has said before this committee that he complained in a letter that this bill was badly drafted and that Mr. Wappel complained that Senator Gigantès had no business saying so before the committee had made a finding. Senator Gigantès agreed that Mr. Wappel may have a point there but he apologized to the committee if he used language that made him sound as if he was speaking as a spokesman for the committee. This was in reply to some of the further deliberations of the committee.

If I am directed by this committee I will write such a letter, but I do not feel it is necessary.

Senator Doyle: I find it rather extraordinary that someone would object to a member of this committee having an opinion. When I last looked around, we were all supposed to have opinions. At various stages during our hearings, our opinions may change. In fact, we may even persuade each other from time to time. I certainly receive correspondence from people who ask me to take one side or the other. I will often agree with the letter-writer that a certain bill is a lousy bill and I agree to do my best to get rid of it; or I might say, surprisingly, that I think a certain bill is a lovely bill and so state that I disagree with their trite letter. However, that has nothing to do with how the committee feels.

The Chairman: Precisely.

Senator Doyle: Surely, if we have an opportunity to say, even to one person over there, such as Mr. Wappel, that what was going on there involved Senator Gigantès and only Senator Gigantès, we can say so. We all have our opinions.

The Chairman: That is not to say that we are opinionated.

Senator Doyle: No, never!

The Chairman: Ms Thomson, please proceed.

Ms Tamra Thomson, Director, Legislation and Law Reform Branch, Canadian Bar Association: The Canadian Bar Association is pleased to have this opportunity to speak to you today on Bill C-220. The Canadian Bar Association is a national association representing over 35,000 jurists across Canada, including lawyers, notaries, law teachers and law students. Amongst the primary objectives of the association is the improvement of the law and improvement of the administration of justice. It is in that context that we appear before you today to make our comments about this bill.

Before we launch on the substance of our presentation, I should like to take a moment to speak to the paper that you have in front of you.

There are two briefs which have been prepared. The first is a brief prepared by the Criminal Justice Section and the Media and Communications Law Section of the Canadian Bar Association. That brief deals with policy matters and technical matters of the bill. It is on that brief that we will be presenting today. The other brief is prepared by the Joint Copyright committee, which is a joint committee of the Canadian Bar Association and the Patent and Trademark Institute of Canada. That brief deals solely with the technical matters of the brief.

The members of the Joint Copyright Committee were of the view that the matters presented in that brief were quite adequately and admirably presented by the witnesses for the Department of Justice who appeared before this committee. They felt, therefore, that it was not necessary to be part of the delegation today. The presentation today will be on the policy brief that is prepared by the Criminal Justice Section and the Media and Communications Law Section.

I will now ask Mr. Blanchard to begin his presentation.


Mr. Mark-André Blanchard, Chair, Freedom of Expression Committee, National Media and Communications Law Section: The National Media and Communications Law Section of the Canadian Bar Association is of the opinion that Bill C-220 is unconstitutional in that it violates section 2b) of the Canadian Charter of Rights and Freedoms guaranteeing freedom of expression. It also suffers from some serious problems with respect to section 7 of the Canadian Charter.

The Canadian Bar Association believes that the social harm that the draft legislation seeks to address is not of the magnitude to justify the scheme contemplated in Bill C-220 and that moreover, the measures proposed are totally out of proportion with the objective sought.

In our view, the contents of the legislation are discriminatory and a blatant violation of section 2b) of the Canadian Charter. It is worth reminding the committee that legislation in the United States known as the "Son of Sam Law" was declared unconstitutional by the U.S. Supreme Court in 1991 by a margin of 9 to 0.

While the Canadian Charter and in particular section 1, work in a different way, it is clear to us that the grounds invoked and scheme contemplated in this bill would not withstand scrutiny under section 1 of the Charter. There is no proportionality in the measures that are being proposed here.

We think it is important to point out that other means would probably be more appropriate. Different parties could probably resort to civil measures to guard against the commercial exploitation of facts which may be sordid and disgusting. The Canadian Bar Association does not feel that this issue should be dealt with through amendments to the Criminal Code.

There are a number of examples of cases where this kind of legislation would have had extremely damaging and harmful repercussions. Consider the cases of Donald Marshall, David Milgaard, Guy Paul Morin and Réjean Hinse in Quebec. These individuals were all convicted and then subsequently acquitted after public and media campaigns, because judicial errors had been committed. These examples clearly show the dangers associated with legislation like this. For instance, David Milgaard or Donald Marshall would not have been able to write a book about their experiences or use the royalties from their book to pay their legal fees.

In our view, this bill runs into some serious problems with respect to section 3b) of the Charter and section 7. Clause one of the bill contains a definition of family member or dependent. Here again, the bill proposes to impose sanctions on persons who have not committed any kind of crime and who have not had an opportunity to defend themselves. A ruling has been handed down against them, without any opportunity for them to be heard. This calls to mind perhaps one of the most fundamental rules of our legal system. Natural justice, or the duty to act fairly, would not be respected and these are principles guaranteed under section 7 of the Canadian Charter. The bill also runs into some very serious problems with respect this provision.

Regarding the freedom of expression guaranteed in section 2b) and section 7 of the Canadian Charter, it is abundantly clear to us that this bill is patently unconstitutional.


Ms Heather Perkins-McVey, Treasurer, Criminal Justice Section, Canadian Bar Association: Speaking from the criminal justice perspective, in addition to the concerns regarding freedom of expression mentioned by my colleagues, we feel that other fundamental violations occur.

The bill has certain problems as it pertains to section 11(d) of the Charter, which is the right to be presumed innocent, as well as certain concerns regarding section 7. Much of this arises as a result of what may be seen as sloppy drafting and the lack of procedures.

In addition, there is a concern because the proposed offence may not properly withstand the Criminal Code's proceeds-of-crime scheme. The proposed amendment to section 462.3 of the Criminal Code, as drafted, is narrowly defined to meet a certain need. The existing subsections of the code require a direct connection between the actual crime and any resulting property. The property or the benefit or advantages defined as proceeds necessarily must be manifest at the time of the commission of the offence. That is how the courts have interpreted the legislation. An immediate link must exist between the two.

It is our position that Bill C-220 is not based on that same direct link between the act and the property as are the other situations contemplated by existing section 462.3.

In addition -- and my friend made reference to this -- there is a concern regarding the inclusion of family members of convicted persons for the purposes of the legislation. The concern pertains to a section 7 violation. This imposes, I would submit, a vicarious liability on people who have not been convicted of criminal offences. That intrudes, not just in a minor way, on the rights of individuals who are guilty of no criminal act. The legislation, as drafted, provides no recourse to a hearing or application to speak to their concerns, to speak to their violation, or even to give them standing at a hearing, which is a grave concern. Typically in criminal law, a family member would not have standing before the court at the time of the sentencing hearing; only the accused person and the Crown attorney have standing.

We also feel that the legislation, as drafted, is overly broad and vague and that there are certain inconsistencies. If you look at the summary of the legislation, it states:

...a person convicted of an indictable offence or his family from the creation of a work based on the offence.

This very clearly implies a post-conviction situation, but the subsequent reference in the bill itself is that the bill would extend to work published at any time following the time the convicted person is charged. We all know that a person who is charged has the presumption of innocence on their side. This major inconsistency must be addressed. By saying that it kicks in at the time the person is charged suggests the conviction is unnecessary. That is an ambiguity that we suggest creates a problem in terms of constitutionality.

Another problem is that the summary states, "a person convicted of an indictable offence." However, looking at section 462.3(c)(i) and looking at the legislation itself, it includes crimes that may be proceeded against by way of indictment. By definition, that includes hybrid offences and even offences that may be proceeded with by way of summary conviction.

Let us take an offence such as theft under $5,000, shoplifting, which is one of the more minor offences in the Criminal Code. By this definition, this offence could come within the ambit of the act. We submit that this is overly broad and inappropriate given the extreme violation of rights that occurs.

Once again, we get into the problem of balancing competing rights and deciding whether any of this legislation can be saved by section 1.

Another concern is that the bill does not focus on the effect of publication, only on the profit motive or the advantage motive. Therefore, you get into situations such as those surrounding Milgaard, Morin and Marshall, where persons may be publishing in an effort to show their innocence or to prove that innocence. This bill would also mean that they could not publish, which is difficult. There is a benefit to society if these persons -- the three Ms, as they are called -- can proceed.

Another point to be made is that the motivation for publishing can be for many different reasons; it is not always for profit. By focusing only on the profit element, you are not righting the societal wrong that I believe is probably the focus of the public. It is our position that that wrong can be righted through existing civil remedies.

Another concern is the proposed amendment to section 12.1(1) of the Copyright Act. As it states, it applies to persons who collaborate with convicted persons, whether this legislation necessarily precludes professors or authors from consulting the convicted person in preparation of academic or analytical works. Does this act really mean to preclude that kind of academic and analytical analysis?

Another issue is the proposal that this legislation would have extra-territorial jurisdiction. I question what legislation or jurisdiction Canada could rely on to seize profits from a work created completely outside its borders.

Another great concern pertains to proposed section 729.1. That section deems the transfer of the copyright to be included in the sentence, but there is a total lack of procedure, such as a hearing, in order to consider the facts of the case or to hear from interested parties. At an absolute minimum, if such a transfer is going to appear, there would have to be a hearing to allow interested parties to participate.

When you are talking about property, you can have persons who have interests in that property. Those persons should be able to be heard and to have their rights protected, as well to have the very issue litigated before the courts. Standing would have to be granted to those persons. Our submission is that the lack of procedure would give rise to a section 7 violation and would not pass constitutional scrutiny.

Looking at the rest of subsection 462.3 of the Criminal Code, the proceeds-of-crime section, you will note that the majority of that subsection relates to the procedures and the rules that must be followed to ensure that all interested persons who have an interest in property can be heard. That subsection ensures that a fair hearing is held to establish the causal nexus between the offence and the property itself. That is lacking in this legislation. For those technical reasons, as well as the constitutional problems, I think the legislation is very weak and would not pass scrutiny or should not pass scrutiny.

Senator Beaudoin: We have heard argument on the division of powers, and they are very strong. There is a strong argument against the Charter of Rights and Freedoms, but if I am not mistaken, this is the first time that we heard an argument based on section 7.

You are right in the sense that if a family member is punished for a something that is foreign to the act, it is certainly debatable. I understand that your argument, as well as that of Mr. Blanchard, is that it goes against natural justice. Is that the basis of your argument relating to section 7 of the Charter?


Mr. Blanchard: For the most part, Senator Beaudoin, when an order is made against certain individuals, particularly in the context of a criminal trial, at the very least these individuals have the right to be heard. Section 7 makes provision for all the rules of natural justice which do not warrant being mentioned specifically. For example, problems would most likely arise if someone's spouse wished to write a book, even one critical of what the offender did. It is conceivable that a wife might wish to write a book that is highly critical of her husband's actions. She would fall within the definition contained in the bill. The proceeds of her work could be seized before she had a chance to be heard, even though the social objectives that the legislation seeks to preserve would have been achieved in the process.

As my colleague was saying, the bill is so broad in scope that any benefit to be derived from the passage of the legislation would be counteracted because that individual could decide to write a book about the misdeeds of his spouse and donate the proceeds to a charitable organization dedicated to helping victims of sexual abuse. However, with this legislation, that person would not be able to do this. The bill's major flaw is that it is drafted in vague, imprecise terms.

Senator Beaudoin: I have to admit that your argument is convincing and that you have given us another reason for rejecting this bill.


Ms Perkins-McVey: An additional concern is that you are using the Criminal Code and the procedures and the safeguards of the Criminal Code. Section 729 kicks in at the sentencing stage, yet you are imposing a penalty on someone who played no role in this unless they have been convicted as an accessory to the fact. That raises a totally different argument. There is a very serious flaw in trying to extend that.

This is very different from the environmental legislation that imposes vicarious responsibilities on directors. Even those extensions have been subject to scrutiny as they pertain to absolute liability and strict liability . I do not think you can impose a criminal sanction on someone who is not a part of it, unless you give them all the safeguards and all the rights of procedure that a person before the courts on a criminal matter can have. That is absent in the Criminal Code. I do not think another section in the Criminal Code imposes that kind of vicarious liability on persons. This is not like provincial legislation where that is sometimes seen.


Senator Cogger: Mr. Blanchard, are you familiar with legislation passed in Ontario known as the Victims' Rights to Proceeds of Crime Act?

Mr. Blanchard: Not especially, Senator Cogger. Perhaps my colleague could address that question.

Senator Cogger: Are you familiar with that particular piece of legislation?


Ms Perkins-McVey: I am familiar with its purpose and the fact that it has been drafted.

Senator Cogger: It has been adopted.

Ms Perkins-McVey: I am familiar with some of the concerns that have been raised.

Senator Cogger: It has been in force since 1994. It is not unlike this bill, except that the royalties are turned over to a public trustee who then uses that money to advertise the fact that he is holding the money, therefore allowing victims an opportunity to claim against it.


Mr. Blanchard: There is already one major distinction to be made. If our objective is to remedy a social ill and compensate victims, I respectfully submit that the proceeds should not go to the Crown, but rather that they be put into a fund for that purpose.


Senator Cogger: In any event, you know that it exists, but you are not aware whether it has been challenged either by the Canadian Bar Association or the courts?

Ms Perkins-McVey: No, I am not aware of any challenge, nor am I aware of any time that it has been utilized. I am not aware of how it has been applied.

Senator Cogger: We are told that it is in force and that the trustee has collected over the past five years something like $11.

Ms Perkins-McVey: But is not the larger question why it needs to be done this way? Look at the remedies available to victims through use of the civil code. For example, in the case of a sexual assault offence, it is common practice for a civil suit to be launched against an accused person at the same time as a criminal action is commenced by the Crown. There are times when victims are compensated even though a conviction is not obtained in the criminal courts. That is done routinely.

In this situation, if a civil case were to be launched, a judgment could be obtained and any profits obtained from literary works or matters that fell within this legislation could be seized and would go directly to the benefit of the victims.

A simple way of resolving that issue would be to extend the limitation periods so that there would be not the same limitations on the rights of plaintiffs to sue.

Senator Cogger: We were told, by a lawyer, I believe, that this matter did not even belong before the federal Parliament inasmuch as it purports to deal with property and civil rights under the Constitution. Therefore, it was simply a provincial matter.


Mr. Blanchard: Very sound arguments can be made in favour of the division of powers. These are clearly sanctions of a civil nature which are being brought under the Criminal Code. While this was not the purpose of our presentation, my experience with legal precedents respecting the division of powers brings me to the same conclusion as the person who told you this. This opinion is well grounded.


Senator Lewis: On page 3 of your brief, top of page 4, you refer to section 690. I presume that is the Criminal Code, is it?

Ms Perkins-McVey: Yes, that is the section of the Criminal Code that allows persons to apply directly to the Minister of Justice for mercy and for consideration, for review of their hearings. It is usually done when all the appeal remedies have been exhausted. David Milgaard made such an application. I do not think Guy Paul Morin did. That is often one of the mechanisms used to have a matter reviewed, particularly when fresh evidence may come to light after a considerable period of time.

Senator Lewis: This would be in the case of a review. What about a pardon? This is only speculation and it may not be of too much interest to us, but if there is a pardon, it would seem a little bit strange. A person may be convicted, eventually pardoned, but in the meantime their works under this bill would become vested in the Crown. There would be no provision for reversing that, I take it?

Ms Perkins-McVey: No. That is one of my concerns. I noted that there is a problem not only if someone is pardoned, but if there is a conviction, an appeal, and a new trial is ordered, the first being set aside, then what happens in that interim time frame between the new trial being ordered and a new judgment being rendered? There is no mechanism set out in the legislation for dealing with that, how to challenge it, how the money is to be held, where it is to be held, who does the accounting, how it is to be enforced. There is also a problem with retrospective effect once you get into these situations of dealing with matters where a conviction may exist in the future.

Senator Lewis: On page 5, in your conclusion, you say that other solutions are being contemplated by bodies such as the Uniform Law Conference.

We have been told that the problem which this bill is meant to address has been considered in the past and is still being considered. Are you familiar with that and is this as you have referenced it in the brief? Has there been any progress?

Ms Thomson: We understand that the Uniform Law Conference, which is a body with representatives of the federal, province and territorial governments, has addressed the issue of profits from authorship relating to crime, and has draft legislation which is currently under review by the Uniform Law Conference. However, we are not able to address the particulars of their draft legislation, and we would suggest that the committee may wish to have a representative of the Department of Justice refer to those matters.

Senator Lewis: Has this study been ongoing for very long? You say it is draft legislation or a draft report?

Ms Thomson: The normal procedure of the Uniform Law Conference is rather lengthy. First of all, it studies a matter to come onto their agenda. Then there is an interim report which is studied by each of the jurisdictions and comments are made; then a final report is filed and, often, if it is indicated, draft legislation is prepared as the final procedure. Then each jurisdiction decides to adopt or not to adopt that draft legislation, as it sees fit.

We understand that this particular project has been ongoing for a number of years, and it is at the draft legislation stage of the process.

Senator Lewis: Yes, they must consult all the provinces and that would take quite a while.


Senator Pépin: Mention was made earlier of a case where someone would obtain a pardon. Even if the offender were to obtain a pardon, the fact remains that he did commit the crime. He would be unable to write a book or publish anything related to the crime. This would be illegal.

Mr. Blanchard: Pursuant to the provisions of Bill C-220, profits arising from authorship respecting a crime would be forfeited.


Senator Doyle: How would you go about revising this law to make it acceptable? Would you start all over?

Ms Perkins-McVey: I can address some of the procedural and some of the drafting problems which I have raised. You could take out the words "may include" certain indictable offences and change it to read "including only" indictable offences of a certain nature. For example, you could say only the 469 offences, or you could say only the offences that are set out in section 463.3 are included. You could define that more succinctly. That would be helpful.

You could set out certain procedures for hearings and for standing in the criminal matter at the sentencing stage. That would be helpful. You could take away the extension of the vicarious liability to the families and to the dependant persons about whom I have suggested section 7 concerns are raised. That, too, would be helpful. However, in my submission, the overwhelming problem is then the section 2 flaw, because you still must weigh the violation vis-à-vis section 1. We need to ask whether there is any other means by which to address this concern. It is our submission that there are other ways of addressing it through the mechanism of the civil laws and the civil remedies that exist.

Do not forget, the initial purpose of the legislation was in large part to prevent the works being published at all. That is not what the legislation does. It does not deal with effect; it only deals with profit. The civil courts have certain remedies of injunction and prohibition of publication of certain information that could be used by victims that would not only address the profit element but also the dissemination of the information.

I would say, for all of those reasons, even if we sat down and carefully redrafted the legislation, took out the inconsistencies and the ambiguities and set up a procedure of hearing, that the overwhelming violation under section 2 would still make this legislation unpalatable. That is our position.

Senator Doyle: Other witnesses have placed their greatest emphasis on the fact that writing itself is not a criminal act and that, therefore, to say there should be no profits from something that is not in itself criminal, defeats the exercise of trying to re-build the law at this stage.

Would you say that that argument, which has already been before us, is too strongly stated and that therefore the act is repairable if we go through and do some of the things that you have said?

Are you really saying it is beyond repair or that it would be just terribly difficult?


Mr. Blanchard: Senator Doyle, as my colleague stated, there are specific problems associated with the logistics or the drafting of the bill. However, the most basic and general problem is the fact that it constitutes a direct assault on the freedom of expression guaranteed under section 2b) of the Charter. If we look at the tests established by our Supreme Court, each and every provision of this bill fails to meet them. Moreover, there are other problems which we have not even mentioned, and which have to do with freedom of expression. For example, the reference in section 12(1) of the Copyright Act to a work that is substantially based on the indictable offence or the circumstances of its commission represents is couched in such vague and imprecise words that it should not override a guaranteed constitutional freedom. Given the fact that the bill does not withstand scrutiny under section 2b), it should be viewed as stillborn legislation, if I can use that expression.


Senator Doyle: I think you have given me the answer I was expecting.

The Chairman: I have one question on which I would like to have an answer from such an esteemed body. Do you feel that the Canadian public is already adequately protected against the problems that are envisaged by this bill under our existing Criminal Code?


Mr. Blanchard: With all due respect, I do not feel that this is a criminal law matter a priori. Rather, it is a civil law matter. As my colleague indicated, recourse is already available to Canadians in all provinces, whether it be injunctions, attachments before judgment, or some other appropriate measure. When adjudicating rights, the courts attempt to strike a balance between freedom of expression, victims rights, reputation and privacy. There is already appropriate recourse available to citizens to avail themselves of their rights.

I do not know if my colleagues are of the same opinion as me, but based on my own personal experience, I have not found any problems of this nature in Canada. I know of no case where a person profited outrageously from authorship respecting a crime.

Senator Cogger's example is entirely accurate. In the past four years, Ontario has received only $11. This is proof that introducing legislation like this is completely out of line with the anticipated social ill. We are not at a point where we need legislation. We already have other highly effective means in our legal arsenal at the provincial level.

Senator Pépin: I have been told that only eight books have ever been published.

Mr. Blanchard: Quite possibly. I am not surprised at the low number.


Ms Perkins-McVey: We are dealing with all of these difficulties with the constitutionality and the drafting and we are trying to fit a square peg into a round hole, so to speak. One of the reasons there is such difficulty in applying this legislation to the Criminal Code is because this is not where it should be. The examples that have been given as it pertains to the civil remedies and the civil courts show that is where the remedies lie. It is inappropriate in this setting.

Senator Gigantès: Was the issue of article 11(d) of the Charter of Rights raised before I arrived?

Ms Perkins-McVey: Yes, it was. The presumption of innocence is something on which I commented at some length.

Senator Gigantès: This bill kicks in at the moment you are charged.

Ms Perkins-McVey: Yes.

Senator Gigantès: Former minister John Munro was charged and the charges were not dropped until ten years later when it was proven that there was no foundation for those charges.

Ms Perkins-McVey: The question is what remedy would he have against the Crown for the loss of that opportunity. In any event, yes, the concerns about the violation of the presumption of innocence are certainly a grave concern.

Senator Gigantès: Did anyone read to you all of those charges that would fall under this, such as alarming the Queen?

Ms Perkins-McVey: Yes, I have mentioned the 469 offences. Piracy is also included.

Senator Gigantès: It includes delaying a train by fooling around with the signals. Which is graver, alarming the Queen or delaying the train? And what if she is on the train?

Ms Perkins-McVey: We did discuss the problems with the drafting of legislation and the way it gives the gambit to include both hybrid and indictable offences which would, by definition, be allowed to refer to matters that can be proceeded against summarily.

Senator Cogger: Here you are, representing the Canadian Bar Association, 35,000 lawyers across the country. Essentially, you are asking us to do away with a piece of legislation. That is what you are telling us. This legislation was passed unanimously by the House of Commons. I do not think I need to go into the details of the high esteem in which the Senate is held in the opinions of Canadians and, presumably, in the opinions of the Canadian Bar Association members as well.

How do you reconcile this? Are you happy with the situation? Do you see no problem with us as an unelected chamber disposing of a bill that comes to us with 100 per cent of the votes of the House of Commons?

Ms Perkins-McVey: From my perspective, as a criminal lawyer who is speaking for the criminal justice section, I think that the Senate would be held in higher esteem if it properly analyzed the legislation and took the appropriate steps to ensure the protection of all persons in accordance with the Charter and in accordance with appropriate drafting.

Ms Thomson: Indeed, the conclusion that we have presented to this committee today is not one to which we have come lightly. However, we note that in the House there was not a great deal of opportunity for public testimony like this and this is the first opportunity that we and many other groups have had to give our opinions to parliamentarians.

The Chairman: This is the first opportunity you have had?

Mr. Blanchard: Absolutely.

The Chairman: Our next witness is Ms Wendy Lill, member of Parliament and NDP critic for Heritage Canada.

Ms Wendy Lill, MP, NDP, Critic for Heritage Canada: I am the member of Parliament for Dartmouth, Nova Scotia. I realize, from hearing Senator Cogger, that we are looking at a rather unusual situation here. It is not standard practice for you to hear from MPs during your deliberations because it is assumed that we do our work down the hall in the other chamber.

However, one of the reasons I am here today is to express my concern about the manner by which this bill progressed through that chamber and got to the point where it is now. I also express concern as a writer and member of the Writers' Union of Canada, the Playwrights' Union and the Nova Scotia Writers' Federation.

As an aside, one of your esteemed colleagues, Jean-Louis Roux, will be opening in a play of mine tonight at the Great Canadian Theatre Company.

I apologize for not having written material to submit at this time for translation and distribution.

First of all, like many groups who have appeared before you, I would like to state my utter and absolute aversion to the idea that certain persons who have committed heinous crimes should profit from those crimes. It may, in fact, be that common aversion toward certain high-profile crimes in this country which helped to speed this bill through the House of Commons. In my experience in that place, some of the most obscure and arcane issues can be debated within an inch of their lives and sometimes far beyond, but it did not happen in this case. This bill was not turned over and inspected from every angle. It was not batted back and forth across the House with the usual appetite.

One reason for that may be that this bill's author invoked the names of Paul Bernardo, Clifford Olson, Karla Homolka, names which have been burned into the public's imagination over the past couple of years; names with which no one wants to be seen closely associated, let alone supporting. Perhaps this goes part of the way in explaining the lack of appetite for debating this bill in the House.

Bill C-220 would require that anyone indicted --

Senator Gigantès: That is "charged," not "indicted," and that is worse.

Ms Lill: You are right. Anyone charged with a federal offence would forfeit both the copyright and royalties of a work which focused on their crimes. The prohibition also extends to the families of the charged individuals. The bill's author is himself a lawyer. Assumptions were perhaps made that he had some kind of competence in drafting such things.

Assumptions were also made that this bill had been studied in the justice committee in the last sitting. I understand that in fact the author re-tabled Bill C-220 without adding the recommendations that had come forward from the parliamentary committee.

Those recommendations were to withdraw the provisions in the bill which would bar relatives of a criminal from writing about the crime. The bill's author failed to recognize these amendments in the legislation when he re-introduced the bill.

The bill was re-introduced in the early days of an early session of a new Parliament when there were over 100 new members, myself included, still trying to find the washrooms. I would venture to say that this bill was deliberately brought in during that time to take advantage of the general newness and disarray of those early days.

The bill was re-introduced at the same stage as it had been in the previous Parliament. In an unusual move, unanimous consent was used to pass a private member's bill. Even the member who assisted in moving the bill has said now that his motion was a spur-of-the-moment thing to help the bill's author avoid the roadblocks usually faced by private member's bills. He, himself, has been quoted as saying he is not sure the bill addresses the problem of criminals profiting from their crimes by writing books or making movies about them.

Be that as it may, on October 1, a bill which fundamentally alters Canadians' freedom of speech received Commons' approval in less than five minutes. It was not one of the Commons' proudest hours. I am not here to point fingers because I am certainly one who must take some responsibility for what occurred there.

I hope we will learn from this experience, and I hope that the example of this case will alert us to the need for more safeguards in process which will prevent private member's business from breezing through with such ease. I would like to move past the issue of process at this point to the issue of content.

I am aware that you have received submissions from many arts organizations, including the Canadian Council for the Arts and the Writers' Union of Canada. I want to echo their concerns around freedom of expression from the point of view of guarding social democracy in this country.

This proposed legislation will paint everyone with the same brush. It will affect all of those who have been charged with an indictable offence in the same way. It will treat counterfeiters the same as mass murderers, child molesters, glue-sniffers who do break-and-enters on Main Street in north-end Winnipeg, young prostitutes, car thieves. This could include, for example, a convict who served his time and writes of his experience to help others who may be moving along the same destructive road, people who are trying to re-establish some order in their lives by writing of their experience in an effort to make sense of it.

Writing is a very important means of redemption and rehabilitation. Bill C-220 would have the effect of being a great silencer, a heavy, oppressive covering over people's rights to know and to speak about their own experiences living within this country.

I do not think I have to tell anyone that our jails are bursting at the seams with young people. A recent article in The Globe and Mail talked about the high rate of incarceration which we have in this country, the majority being very young people and an astounding number being young native and black Canadians. Do we not want to hear what they have to say about their lives? Do we not want to allow them to engage in any reflection over what has put them behind bars? Do we not want to give them the ability and the liberty to rage through words -- a much safer method than fist and guns -- at the society which has short-changed them, failed them, in many ways abused them and their hopes?

Any kind of therapy or rehabilitation involves writing through one's experiences. Do we simply want to jail these criminals and sentence them? I think not. I would venture that we have already silenced too many people. We have not listened enough and not soon enough. We are in danger of turning down the volume even farther with such draconian bills as Bill C-220.

I belong to an organization which sponsors prison art. I read with amazement the poetry and short stories of people who have found themselves in jail. I hear voices which are more critical and perceptive than some of the most penetrating articles I have read in newspapers or magazines. I do not want to silence these voices simply because we are all in agreement that a handful of criminals should not be allowed to profit from their atrocities.

The argument has been made that no one is stopping anyone from writing, that Bill C-220 would only impact on one's ability to profit from one's writing. I would disagree with that. All of us are both private and public beings. I know that when I speak, I do so with the hope of being heard. I write with the hope of being read. We all yearn for the warm balm of recognition. When we say we want to tell our story, we do not mean to a wall; we mean to a larger society. That means through publishing. Freedom of expression includes access to the means to disseminate your expression.

Susan Musgrave, chair of the Writers' Union of Canada, made the point that no publisher will publish a book if the writer is not 100 per cent in control of his or her copyright. The first clause of every contract between an author and a publisher deals with copyright ownership. Douglas Gibson, chief publisher at McClelland & Stewart, said that a writer must prove they own the horse before he can agree to buy it.

Under this bill, the state will own the horse. It will have to agree to publish the book. The state will also be in charge of the justice system that may have wrongfully convicted the person in the first place. As Clayton Ruby, a well-known defence lawyer, has stated, if someone is attacking the justice system, why would that system allow them to publish?

If no one was willing to publish the story of Donald Marshall, a Mi'kmaq youth from a Cape Breton reserve who was wrongfully convicted of murder, there would never have been a review of his trial. He would not be a free man today.

I have read the presentation of Rudy Wiebe on behalf of seven organizations and I have to reiterate his point that we pride ourselves in Canada on not having political criminals. It is sobering to think that a person such as Martin Luther King would not be able to publish an account of an unlawful political protest in Canada if Bill C-220 were law.

I urge this committee to kill this legislation before it goes any further. People have the right to express themselves. It is a revered premise in all democratic societies. Yet on an early fall afternoon, because of a series of errors and omissions and some shoddy work, we are in danger of throwing it all away.

Bill C-220 must be discarded in the clear, hard light of day because of the serious implications which it will have for the issues of freedom of expression, copyright and social democracy in this country. It encroaches on the freedom of expression not only of writers who have committed crimes but also on the right of Canadians to participate in a democratic society without unjustifiable restrictions on their rights to know.

Bill C-220 takes an unnecessary whack at the freedoms of Canadians. It seeks to silence far too many of the voices in this country to which we should be listening closely. Some, such as the Canadian Bar Association, say provisions already exist in legislation to prohibit people from profiting from their crimes. Let us look at them. Let us build on them. Let us not take a "nuclear weapons" approach to a problem which could be dealt with in more localized and effective way.

I urge you to discard Bill C-220, but it must not be thrown out before lessons are learned about how we got to this position and how we can avoid finding ourselves there again. Thank you for the opportunity to address you today.

The Chairman: This is off the subject but may I know the name of your play which is opening tonight?

Ms Lill: The play is called Glace Bay Miners' Museum and it is based on a short story by Sheldon Currie.

Senator Moore: Ms Lill, for the record, you are a member of the New Democratic Party caucus in the House of Commons?

Ms Lill: That is correct.

Senator Moore: What is the official NDP position with respect to the Senate?

Ms Lill: I think you may know the official position, Senator Moore. It is that we would take steps to abolish the Senate.

Senator Moore: Do you agree with that?

Ms Lill: I certainly would agree with a review of the Senate as it is presently constituted.

Senator Moore: If the Senate asserted its Constitutional powers and adopted your suggestion that we kill this bill, would you say that we would be performing a useful function?

Ms Lill: Yes, I would certainly think that.

Senator Moore: I have heard what you said about the newness of the members and that not much discussion took place. You mentioned that the proposer of the bill did not attach to his proposal the recommendations of the House of Commons judicial committee in the previous Parliament.

What about the opportunity for interested parties to make representations? Were there no committee hearings held to give writers, lawyers, any interested party, the opportunity to make remarks or to suggest changes or to suggest killing the bill?

Ms Lill: There were no hearings during this Parliament. There was a judicial hearing in the former Parliament around this bill. Out of that came recommendations to delete the provision barring relatives of a criminal from writing about the crime.

Senator Moore: So there were judicial committee hearings held in the previous Parliament. We had an election and all of those hearings become history. With a new Parliament, when the bill comes in again, would there not be new committee hearings?

Ms Lill: I understand that, on October 1, a private member moved to have his bill passed by unanimous consent, a rather unusual procedure. The loophole has not been closed on that. It can still happen tomorrow. It is not something with which any of the parties, including the Conservatives, would have any truck or trade. However, it can still happen if there is an individual private member who wants to try to proceed with their bill in that capacity.

Senator Moore: Were you in the House when this came up?

Ms Lill: No, I was not.

Senator Moore: Do you know how many people were there that day?

Ms Lill: I am not sure how many were there. I know it was not full. On some afternoons I have been sitting in there and they are hard-pressed to have a quorum. I would imagine it was a dreary turn-out.

Senator Moore: Would there not be representatives from all parties?

Ms Lill: I think there were representatives from all parties.

Senator Moore: Do you know if there was any previous discussion among the leadership in the parties in advance of Mr. White's motion to pass this bill?

Ms Lill: I am not aware of that.

The Chairman: Ms Lill, you are probably proving the worth of the Senate. The next questioner is Senator Pépin.


Senator Pépin: I simply wanted to make a comment. Having been an MP myself once, I understand very well what you are saying. You are newly elected, you have many things to accomplish and you want to do your job well. I understand that you have to juggle your work in Parliament, in committee and in your constituency. You have a lot on your plate.

I appreciate your courage in coming here today to tell us that in your opinion, this bill was not given sufficient consideration by the people who adopted it. I appreciate that and I agree that the Senate should be reformed. Perhaps you would care to look at this matter with us. Instead of abolishing the Senate, perhaps we could reform it. Thank you for having the courage of your convictions and for coming here to tell us that you feel the House made a mistake in passing this bill.


Senator Gigantès: Am I correct in assuming that all members of the House of Commons can read?

Senator Doyle: Now that is a canard.

Ms Lill: I cannot speak for all of them.

Senator Gigantès: Those who passed this bill, were they not literate? Could they not read it? It is not very long. Were they not aware that it was against the Charter? I am not a lawyer. The minute I saw it, I recognized problems with Articles 11(d) and 2(b).

This is a very serious bill considering the damage that it can do, and the House of Commons passed it unanimously. We often have small attendance in the Senate at certain times but we would not pass a bill like this.

One of the things the Senate has accomplished is to put some right of appeal in the CSIS bill, the bill which split the RCMP in two and created CSIS. A review panel was established. An accused person, for the first time, would have the right to confront the accusations. Before that, a deputy minister could simply throw someone out without explaining why, on the grounds of secrecy. They could stamp them forever as unloyal to the country. I suffered from that process. It is a senator who piloted the changes and another senator who sponsored them.

Do you remember the drunken defence? Do you remember that criminal who battered and raped a woman but said he was too drunk and, therefore, did not have mens rea; he did not have his mind to it? We changed that -- we, the Senate. In fact, I did. The House of Commons made a few changes to it and passed it.

Do you know how much the Senate costs each Canadian per year?

Ms Lill: No, I do not.

Senator Gigantès: It cost $1.30. Therefore, I cost each Canadian, each year, 1.3 cents. In my 14 and a half years, by the time I retire in August, I will have cost each Canadian 22 cents. I put the CSIS thing through. I put the drunken defence change through. Now I will vote to kill this bill. I think it is worth 22 cents to you to have this backstop. I know we are appointed and unelected hacks with absolutely no talent, no education, and so on. I have NDP relatives who think I am a moral leper because I have progressive ideas but I am not a member of the NDP.

Anybody who makes a democracy work, whatever title they wear, whatever they call their party, is essentially a Liberal, a member of the party that recognizes that absolute, perfect solutions do not work and that you have to find compromises with which the largest number of people can live. I am very proud to be a Liberal and not a doctrinaire Reformer or a doctrinaire NDPer. It was astonishing to me when I saw this piece of legislation.

Ms Lill: I do not disagree with a thing you are saying. Obviously, there are 35,000 lawyers who are happy that the Senate is in existence at this point in time, as well as all of the writers' groups who appeared here. I am glad this is being given sober, second thought in the Senate. It is a very important thing to be happening right now.

Senator Gigantès: This particular committee is non-partisan. We do not act in a partisan manner. Senator Doyle and I almost invariably find ourselves on the same side. He is a Conservative, I am a Liberal, but these are issues concerning human beings, and that is how we deal with them, even though we are appointed hacks.

Ms Lill: I am not exactly sure why Senator Moore asked me what party I represent because I am representing 70,000 people in Dartmouth. That is my constituency. I do not think it is too relevant what party I am representing at this point in time.

Senator Gigantès: It is not but I have had youngsters' groups say to me, "But you are not accountable," and my answer is I am accountable to my conscience. It is my conscience that makes me agree with you on this bill, not because I might have to face an electorate that is emotional about Homolka or whatever.

Ms Lill: I am wondering if I could ask you a question. Are you in favour of some kind of Senate reform? Is that a necessary step at this point?

Senator Gigantès: There was an article today in the Calgary Herald stating that if the Senate were elected, Senator Ghitter would not run. I am not sure if I should be happy because he would not run or whether it was a great piece of news because, if he would not run, then we would not have elected senators.

Supposing we had the Triple-E Senate, which is one of the things wanted out west, or so we are told. We would end up with a U.S.-style Senate, and the lobbyists would come. Any U.S. senator who wants to be re-elected must have a lot of money. We would not need quite so much but it would come to that.

The Chairman: I do not like to interrupt the discussion because it is quite free-ranging and we are fairly informal, but we are quite a bit off the topic. Senator Gigantès, do you have anything else to ask our witness about this bill?

Senator Gigantès: No, I do not.

Senator Cogger: Ms Lill, thank you for coming before us. Have you received any mail supporting this bill?

Ms Lill: No, I have not.

Senator Cogger: I do not know if you are aware, but you may not be surprised that senators have received a substantial amount of mail, each and every one of us. It is not unnatural for the promoter of a bill, or his supporters, to invite people to write to senators. Therefore, one has to be aware that there is a substantial body of opinion out there supporting at least the principle of this bill.

I note that, at the beginning of your comments, you wisely remarked that you, like most Canadians, I suspect, found yourself in agreement with the principle of not having someone benefit from one's crime. This is more in the nature of a comment. It seems to me now it is pretty obvious which way this bill is going, even in front of this committee. However, I suspect we will have some explaining to do -- you and I, and the other parties, the Canadian Bar Association, the Writers' Union -- because the people who write to us will be bitterly disappointed. As they understand the bill in a nutshell, it sounds so sensible and reasonable. We will have some explaining to do. They will ask why, since we do not find ourselves against the principle, we could not find ourselves in support of the bill itself?

I am asking you for your support and that of your colleagues in the House of Commons.

Ms Lill: I would agree with you that we have some explaining to do. We are now having to explain ourselves in the media. The articles that are now coming out are really familiarizing people with the excesses of this bill and how much it is, in fact, a sledgehammer to hit a fly. We are being told by constitutional experts that it flies in the face of the Charter of Rights, and we are being told that, in fact, there are civil remedies for this exact problem.

It is a wake-up call, I think. It certainly was for me. I, too, walk into the august institution, the House of Commons, and think this is where the law of the land is being fashioned and this is where policies are being created. We made a real error a few months ago. It is embarrassing but, more to the point, it must be remedied. We can not just wander along and try to push it through even though it was, in fact, a mistake. That is why I am here. It is certainly not because I like being grilled for making errors, but it is something that we have to put aside.

Maybe it is useful to try to explain why this measure is not required in this form.

Senator Pépin: Did you say that there were some amendments that were proposed under the other Parliament and which were not followed?

Ms Lill: It is my understanding that there were amendments suggested by the judicial committee in the last Parliament, simply that the family members would not be tarred with the same brush.

It is my understanding that there was a great deal of criticism around this whole thing even back then, which did not see the light of day. Again, we see errors and omissions and some sort of process break-down which is now coming to light in front of you and in the media. Somehow this thing has stumbled along from step to step.

Senator Pépin: I thought that when there were amendments proposed in committee, we had to take that into consideration in the House before we came back with the bill.

The Chairman: To follow up on Senator Pépin's comment, the only amendments that came from the House committee in the last Parliament were ones that were proposed by Mr. Wappel himself, and that makes me rather curious as to why he did not add his own amendments to the bill when he reintroduced it after the election.

Senator Cogger: That is because he used that special formula that they have, where you reintroduce a bill at the stage where it was at the time the Parliament adjourned. You have to reintroduce the same bill with no amendments, and then it was passed.

The Chairman: However, that bill had been passed by the previous Parliament and had come to the Senate.

Senator Cogger: No, it had gone to second reading and then Parliament was prorogued.

The Chairman: Senator Cogger, I believe the bill was in the Senate when the election was called. It had been referred to this committee just a day or two before the election was called. I want to say, just to correct the record, I believe that Mr. White, the member who moved this bill the time, said that he had risen on a point of order during Routine Proceedings after the member for Scarborough had introduced a private member's bill which in the previous Parliament passed all stages in both the House and the Senate.

I want to be clear that it passed in the house, but it did not pass in the Senate. It went through second reading, came to this committee, but then the election was called and the bill died. I want to be absolutely sure that the record is clear on that.

Senator Rossiter: We could get the minutes of the committee to find out what happened.

The Chairman: We did not have any meeting of this committee, but we can get the minutes of the House of Commons committee for you, Senator Rossiter. I believe Senator Gigantès has one last question he wanted to ask. He has said he will be brief.

Senator Gigantès: In atonement for being emotional and to thank you for coming before us, please allow me to give you the 22 cents I will have cost you by the month of August. Give it to your favourite charity.

Senator Moore: Ms Lill, I was asking for your party affiliation because you are the first member of the Commons that I have seen come before this committee since I have been a member and the only one on this issue.

The Chairman: That is except the sponsor of the bill.

Senator Moore: Yes, that is except for the sponsor of the bill, but in terms of witnesses to make comments one way or the other, she is the only MP to come. As a matter of record, it is important that we know who you are.

The Chairman: Since there are no further questions, I thank you very much for coming before us.

Ms Lill: Thank you very much. It was very interesting.

The Chairman: I should perhaps emphasize the point that this may well illustrate how wide-ranging discussions can be in Senate committees and how we follow things through to the end, rather than following from a partisan point of view, interrupting one person after a certain number of questions and turning to a person from another party for a certain number of many questions. We really do try to get to the meat of the matter and we try to take a sober second look at legislation.

The committee adjourned.