Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 19 - Evidence
OTTAWA, Thursday, March 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 2:10 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Senators, this committee meeting is now in session. We have before us Mr. Clayton Ruby, lawyer. Mr. Ruby has asked if Ms Kim Pate can join him. Ms Pate is the National Director of the Elizabeth Fry Society. She has provided a written submission to this committee.
Is it your wish that she join us?
Hon. Senators: Agreed.
Mr. Clayton Ruby, Lawyer: I am grateful for the opportunity to appear here today. I delighted to meet distinguished senators whose names have been familiar to me for many years. This is an honour indeed.
I want to spend a few moments talking about Mr. Wappel's bill to explain what I think is probably not new to you. It is not new because the Government of Canada, in its submissions to you earlier, took exactly the same position I am taking. I cannot tell you how rare it is that the Government of Canada and I see eye to eye on legal matters, and I am delighted that we do. I will make reference to those submissions to refresh your memory of them.
At the end of the day, the criminal law problem is that when Mr. Wappel drafted this bill, which is frankly a silly bill, he took no steps to see that it worked. The Criminal Code sometimes consists of straightforward prohibitions, sometimes consists of straightforward penalties, and sometimes consists of more complex provisions, and this is one of those.
The long and short of it is that proceeds of crime -- money earned from the writing of books, which is what this bill is concerned with -- are seizable under a search warrant even when no criminal charge is being laid, but only when they are linked to certain kinds of offences, serious offences which we call enterprise crime offences, which are usually organized crime type of offences. Without that link, you cannot make the seizure of this money, even though you label it "proceeds of crime". There is an offence called "laundering proceeds of crime", but that offence only covers property obtained or derived directly or indirectly as a result of the commission of, again, an enterprise crime offence or designated substance offence, which is the drug equivalent.
Mr. Wappel may have thought, as well, that possession of property obtained by crime -- an enterprise offence -- would cover this money, but that only applies if the proceeds of the crime are derived directly or indirectly from the commission in Canada of an offence punishable by indictment. There is no indictment because he did not make one.
Again, proceeds of crime can be forfeited on conviction, but only if it is part of the sentence for that old enterprise crime offence, and there is none.
Again, when an accused dies or absconds before trial, the Attorney General can apply for forfeiture, but only when there is a charge laid of an enterprise crime offence. There is not one here.
At the end of the day, not one penny can be seized, held or forfeited under this bill. It is legal gibberish. It makes entirely no sense.
The amazing thing, the funny thing, the peculiar thing, is that it got this far. How did it get through the House of Commons? That has constantly amazed me. I suspect, based on some unofficial inquiries I made, that no one was paying attention. You ladies and gentlemen are paying attention. I know that these problems have not escaped you.
The view of the Department of Justice, which was not consulted and had no part in this, is, frankly, stronger, if anything, than what I say. The department concluded that this bill, if it could be passed at all, was a matter of provincial jurisdiction and was unconstitutional. God only knows why the house did not recognize this.
There are Charter problems. Department officials pointed out to you, quite correctly, that before you can create an offence under the Criminal Code -- leaving aside the provincial problems -- which would require the seizure of money obtained from writing a book, you would have to show substantial evidence of harm caused by the writing of the book, and probably that particular book, and you would probably have to put that directly in the statute as one of the criteria before you could create an offence or do any forfeiting.
However, they say, as do I, that there is no evidence of any harm caused by this kind of writing. There are anecdotal reports, to be sure, but there really is no one who has made a substantial amount of money from selling their writings about their own exploits in crime.
They point out as well the Berne Convention. We are a solemn signatory to an international treaty dealing with copyright. Although this is not my field, it seems obvious to me that that treaty obliges us to support the author, and that is the position of the Department of Justice.
Ms Pate has asked me to mention something from her submission on behalf of the Elizabeth Fry Society. I think you all know that the Elizabeth Fry Society works with female prisoners across the country. She says that this bill would deny prisoners and other convicted persons of the ability ever to write about their experiences, regardless of whether the purpose is their own catharsis or the enlightenment of the public.
I acted for Donald Marshall Junior in the Royal Commission of inquiry which led to the report with which some of you will be familiar. I acted for Mr. Morin, who was wrongly convicted in Toronto, at his first trials. I act for an RCMP officer named Kelly who is now in jail claiming to be wrongfully convicted of murder. In all these cases, the right to speak, to claim wrongful conviction by describing the events, is what will convince the public that the cases deserve attention and a second look. It is a small opening to the world of justice that has been closed off for a convicted prisoner, but it is one we should never slam shut.
Elizabeth Fry says that they know several women who are currently serving life sentences who want to publish alternative accounts of the events that led to their convictions. If this bill becomes law, the stories may well not be published and most certainly would increase the likelihood that wrongful convictions will go undetected and unexamined.
The Canadian Association of Elizabeth Fry Society says, as do I, that this is too high a price to pay and should alone be fatal to this ridiculous bill.
If you have questions, I will be glad to answer them. If you have questions for Ms Pate, she will be glad to deal with those as well.
The Chairman: Have you anything to add, Ms Pate?
Ms Kimberley Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Mr. Ruby has highlighted our submission. We certainly support Mr. Ruby's submissions with respect to his legal analysis and also the perspective of the Department of Justice officials. We wish to underscore what Mr. Ruby has just pointed out as the highlights of our submission. I welcome questions on that point. There are a number of situations which Mr. Ruby has highlighted, as well as issues around battered women's defence.
The book by Brian Vallée entitled Life with Billy, and the popularized movie of the same name, are examples of issues being raised which may not have been had a bill such as this been in existence at the time Jane Hurshman was convicted of first degree murder.
Senator Lewis: We came into possession of a letter which Mr. Ruby wrote to Senator Doyle and Senator Gigantès last November. Could we have it appended to the record of this meeting? It is quite good and quite explicit.
The Chairman: We normally do not attach things directly to the record of the committee.
Perhaps I could ask you, Mr. Ruby, to read this letter into the record.
Mr. Ruby: Certainly. The letter is addressed to Senator Doyle, dated November 26, 1997. It reads:
RE: Bill C-220 now before the Senate of Canada
I am writing this letter in the hope that it will assist you in understanding Bill C-220. I have also written to Senator Philippe Gigantès.
Unfortunately, Tom Wappel, the author of this silly Bill, doesn't understand the Criminal Code very well.
Money earned from the writing of the books we are concerned with becomes "proceeds of crime". That, he accomplishes. But that by itself accomplishes nothing.
Here is how the Criminal Code goes.
"Proceeds of crime" are seizable under search warrant, even without a criminal charge being laid, pursuant to s.462.32(1) of the Criminal Code, but a search warrant can only be issued if the information on oath that the police officer fills out to obtain it makes an allegation with respect to an "enterprise crime offense alleged to have been committed within the Province in which the judge has jurisdiction." Mr. Wappel forgot to create a new "enterprise crime offense" referring to this money. Without it, nothing happens. You can't get a seizure. ("Enterprise crimes" are a small number of very grave criminal offenses such as bribery, child pornography, murder, etc. listed in Criminal Code s.462.3).
Mr. Wappel may have thought that section 462.31(1), an enterprise crime offense titled "Laundering Proceeds of Crime", would cover this money, but that offense only relates to property that was obtained or derived directly or indirectly as a result of the commission in Canada of an "enterprise crime offense" or a "designated substance offense". Neither offence exists here.
Similarly, Mr. Wappel may have thought that the enterprise crime offense created by s.354(1) of the Criminal Code, "Possession of Property Obtained by Crime" would cover this money, but that crime only applies if the proceeds of the crime are derived directly or indirectly from "the commission in Canada of an offense punishable by indictment". No such offense exists here.
"Proceeds of crime" can also be forfeited upon conviction pursuant to s.462.37(1) and (2), but, once again, only as part of the sentence for an "enterprise crime offense". Similarly, pursuant to s.462.38(1) where the accused has died or absconded before trial, the Attorney General may make application for forfeiture of proceeds of crime but only when there has been a charge laid alleging an "enterprise crime offense". No "enterprise crime offense" exists here.
Mr. Wappel and Bill C-220 have overlooked entirely that the "proceeds of crime" provisions of the Criminal Code only apply when the "proceeds of crime" are linked to an "enterprise crime".
Not one penny can be seized, held or forfeited under this Bill. It is legal gibberish.
Mr. Wappel has created a Bill which achieves nothing in criminal law and it would be futile for the Senate to enact it. Nor should the Senate itself create a substantive "enterprise offense" to put in it. The creation of that offense would require very careful thought and wording and should be left to the draughtsmen and draughtswomen of the Department of Justice -- not to amateurs.
You may wish to pass this on to the Department of Justice to see if they concur with my view.
I apologize for not having taken the time to work it through earlier. If I am right it seems that the House of Commons has unanimously passed legislation that though it amends the Criminal Code, will have absolutely no effect upon the criminal law of Canada.
I make no comment upon the Copyright Act aspects of the Bill.
Yours very truly,
Clayton C. Ruby.
Senator Beaudoin: I wish first to thank you for your appearance before this committee and for that letter which is very clear cut. As a matter of fact, we have heard an assistant deputy minister of justice give a beautiful exposé on this question, on the division of powers and the Charter of Rights and obviously section 1 of the Charter. Your argument is concentrated on the Criminal Code proper. That is the first time we have heard an argument like this one. Under the criminal law, I think it disposes of the problem.
Do I understand from what you have said that you agree generally that it is against the division of powers and the Charter of Rights, or do you want to restrict yourself to the Criminal Code aspect?
Mr. Ruby: No. I think the constitutional law and Charter aspects are very important. There is, in my view, no doubt of the connection between forfeiting proceeds of crime, in the lay sense and in the criminal law, which has a sufficient connection with the constitutional-law criminal-law power that it can be achieved and has been achieved in some ways. I think it could be more broadly done if you wanted it. However, I think the minute you go so far as to say, "We are seizing the proceeds not of crime but of writing a book that is not in itself a crime," you have gone beyond the criminal law power. I think at that point a court would be likely -- I cannot say more than that -- to characterize this as an exercise of provincial responsibility as property and civil rights. I think that is the position of the Justice Department and I think it is a sound position.
Certainly the fact that the Uniform Law Conference, which, as you know, senator, is the annual meeting of representatives of all the Attorneys General across the country in the field of criminal law, has been looking at it with a view to doing a uniform statute. The Conference indicates that they too are of the view that this is a provincial responsibility. They are now working on it.
It would appear that, with the exception of Mr. Wappel, there does not seem to be anyone who takes the position that this is valid constitutional legislation in the division-of-powers sense.
The charter aspect is equally important. This body is dedicated and sworn to uphold the charter. It is clear now, based upon the obscenity cases, that only a harm-based analysis will be sufficient to justify an infringement of freedom of expression, even an expression as basic as, "I want to hire you as a prostitute." That is expression. You can only interfere with that if you have a harm-based analysis. There must be evidence to show that the conversations cause actual harm. There is some dispute about whether it is the particular conversation or conversations of the same kind in general. The Justice Department has made it clear that they have no such evidence and no prospect of getting such evidence, and I would suggest our own common sense indicates there is no such evidence.
Senator Beaudoin: Obviously it is against the freedom of expression. There is no doubt in the world about that. Obviously I cannot see how it may be justified under section 1 of the charter. All the arguments that we have heard from Mr. Mosley, from the Canadian Bar Association and many other experts, are in agreement, so it is no use to go further than that for the Charter of Rights.
What amazes me in this bill is that there is nothing for the victims of the crime. On the contrary, if the proceeds of the copyright -- if I may use such an expression -- are dealt with in the way Mr. Wappel wants them to be dealt with, it means that they will get nothing. Suppose a person under that situation becomes a millionaire. The copyright will be seized and would belong to the Crown, and the victims of the crime will never have one cent unless the Crown in right of Canada gives them something. The whole purpose of the bill is defeated right from the beginning in that case.
There is also another argument. Mr. Mosley made a tremendous plea saying that it infringes on property and civil rights. I think that is true. Your argument is that, even in criminal law proper, the bill cannot stand because it is outside the purview of criminal law competence. Is that not what you say?
Mr. Ruby: No. It is outside the purview of criminal law competence in terms of the division of powers. However, the main thrust of my written submission was not that but rather that the bill does not work even on its own terms.
Senator Beaudoin: It does not work.
Mr. Ruby: It achieves absolutely nothing. Mr. Mosley and the other Justice Department people took the same view. They did not do as lengthy an analysis as I did, but in the transcript of their testimony, at page 1050-42, they say:
Notwithstanding these criminal law policy concerns raised by the bill, we believe that this particular amendment is technically flawed. The bill amends the definition of the expression "proceeds of crime"... No doubt, it is the hope that with this amendment the provisions of Part XII.2 that apply to proceeds of crime would apply equally to the profits derived from the writing of an account of the crime and that these proceeds would, at some point, end up being seized and confiscated. However, a seizure order can only be obtained if a forfeiture order can ultimately be made in respect of the proceeds, and a forfeiture can only be ordered under the statute if the proceeds are derived from the commission of an enterprise crime or designated drug offence.
So, in short form, they take the same view as I, that the seizure and forfeiture measures are unavailable under this bill. It is just badly drafted.
Senator Beaudoin: There is no doubt in my mind.
Mr. Ruby: It does nothing. I have seen a lot of bills that I wished did nothing, but did something nonetheless. However, I have never before seen one that accomplishes nothing.
Senator Beaudoin: As we say in French, vous prêchez à un coverti. Obviously, if it is against the division of power, if it is against the Charter of Rights, it cannot be saved by section 1, and if it is not in accordance with the criminal law genus, there is nothing we can do. Well, we know what we can do.
Mr. Ruby: There is not much left.
Senator Gigantès: I am grateful you came here, sir. I will not discuss aspects of law with you because I am not a lawyer. Between you, Senator Beaudoin, Senator Nolin and the three lawyers on my left, I would feel rather foolish if I tried.
Mr. Ruby: We have some common sense around the table.
Senator Gigantès: Some of us have been bombarded by correspondence and petitions, much of it repetitive. I have received some of the letters a few hundred times. Some people seem to have the impression that this bill would provide money for victims. Even if all your legal arguments were erased or fixed somehow, I cannot see that the Crown owning the copyright to Mr. Bernardo's memoirs would allow the memoirs to be published. It is unthinkable. Do you agree?
Mr. Ruby: Yes. If you look at what it achieves and deduce from that its purpose, it is designed to prevent publication, not to care for victims.
Senator Gigantès: There is the emotional issue of Mr. Olson whose lawyer apparently arranged with a lawyer in the U.S. to set up a company that sells videotapes of Mr. Olson describing how to commit the sort of crimes he committed. The tapes sell for $300 each. The relatives of the victims are very upset by that. Is there anything that can be done?
Mr. Ruby: I have not heard that before but, quite obviously, if he is describing what you indicate, that is obscene, immoral and indecent. It is already illegal to have that in Canada; to possess it, to traffic in it. There are already laws against that. The tapes can be seized and forfeited. It is obscenity generically and there are a number of different obscenity offences that it constitutes.
Our reach does not extend to the United States but if it ever entered into Canada, we could provide a remedy.
Senator Gigantès: Could we sue that company in the United States, in a U.S. tribunal?
Mr. Ruby: Not to my knowledge.
Senator Gigantès: Mr. Olson also traffics in a version of collectible cards on which his picture appears with the caption "The world's worst criminal". The card costs $10 and if you send it to him in prison with another $10 and a stamped envelope, he will autograph it and send it back to you. Can this be stopped?
Mr. Ruby: That is easy. You are telling me this for the first time, but if that occurs -- and I have a hard time believing that it does occur -- it is a practice which would not be conducive to his rehabilitation. Therefore, one would expect that the prison warden and prison authorities would forbid it. They have ample authority to do that. That is why I doubt that it is really happening. I cannot imagine any prison warden allowing that to happen.
Senator Gigantès: Relatives of his victims appeared before us and told us that this is happening.
Mr. Ruby: You cannot send a letter to Mr. Olson without it going to censors and prison officials, and he cannot mail anything out without their consent. So I have difficulty believing, if it is not stopped already, that it is not stoppable without difficulty.
Senator Bryden: But in our system he can get all the cocaine he wants.
Mr. Ruby: There are some prisons where a prisoner can do that. I do not think Mr. Olson's particular situation allows it.
Senator Nolin: He is not in that kind of "hotel."
Senator Gigantès: Finally, many of the letters I receive say -- and I have heard Mr. Wappel say to me personally -- that if we do not like the bill as it is now, it is the duty of the Senate to correct all its defects.
Mr. Ruby: I would put it the other way around, senator. It seems to me that if the House of Commons fulfils its responsibility in sending to you viable and constitutional legislation, legislation which does not breach the Charter, then your duty is to improve it. That is particularly true of a government bill. This is not a government bill.
In my view, you should not amend or improve this. Since it is not a government bill, you should simply refuse to accept it.
Senator Gigantès: Is it improvable? Is it amendable at all?
Mr. Ruby: I suspect you cannot do this. On a division of powers basis, it is not amendable. On the charter, the best available opinion we have, which I share, is that it is not improvable because we have no evidence that would sustain its viability in light of section 1 of the charter.
In terms of the actual technical proceedings, yes, we could improve that aspect and make it work, but only by creating a new "enterprise crime" offence. The minute we did that, we would have to meet that harm-based problem again and we have no evidence of it. So it would be very difficult at best. I cannot personally see how you would do it given the absence of evidence of harm from the writing of these books.
Senator Gigantès: Because we must answer from the testimony to these people who write to us, can you elaborate on the harm aspect?
Mr. Ruby: In order to create an offence, something which has penal qualities, the Charter requires that if you are going to infringe freedom of expression -- and this bill obviously does -- you can do so only if the measures you adopt minimally impair freedom of expression. That is one of the tests which must be sustainable.
In order to show minimal impairment, you must weigh that against the harm caused. What is it that is being minimallly impaired? You must show the harm.
In the prostitution case of Butler, they allowed you to interfere with a conversation about purchasing sex, the prostitution conversations, because of the nuisance that was caused to neighbourhoods by prostitutes hanging around. That was the harm that justified the infringement of free expression, even that low level of free expression. It does not give much value to, "Can I hire your body and pay you?", but you had to have some harm. The harm was found in the nuisance of prostitution on the streets.
Here, it is books and there is no evidence of harm. There is just no evidence that people are being harmed by reading these books, no evidence that people are being harmed by the distribution of them.
Senator Gigantès: Is the distress of the relatives of victims not harm? That is what was argued before us. It is torture for them, they say.
Mr. Ruby: No. Chief Justice Dickson has said, in a constitutional case, that you cannot convert the guaranteed right of freedom of expression into a justification for infringing that right. The right to express yourself cannot be infringed because some people do not like you expressing yourself. That is not a valid constitutional limitation.
The stress of the victims is no more than that. It is them saying, "I do not like what you are doing. I want you to stop. It gets me really upset."
I have no doubt that it does. I sympathize and share that view, but, constitutionally, that is not harm. That is simply the right itself being exercised. That is what we are sworn to protect. It is not a reason for making an infringement.
Senator Gigantès: Do we not stop so-called freedom of expression by blocking some forms of obscenity?
Mr. Ruby: Yes, but in each and every case we can point to harm other than, "This upsets me. This gets me angry. I find this offensive," because that is what is protected, not what justifies the infringement.
Senator Gigantès: Are the Bernardo tapes harm?
Mr. Ruby: You are talking to one of the very few people on earth who has seen them. I had a look at them at one point as part of a retainer. They are clearly harm. They are obscenity. If you have them for any purpose other than as counsel, you are in possession of obscene material. Nobody else will be allowed to have them. They could never be distributed.
Senator Moore: There is more there than the parents of the victims being upset? This is bad, bad stuff?
Mr. Ruby: Oh, yes. It is a how-to manual of the most sordid material. No one would allow that, on the grounds of public safety, to be distributed.
Senator Moore: So the existing law covers that and we do not need this?
Mr. Ruby: There is no problem. It is awful stuff.
The Chairman: Mr. Ruby, we had appear before us Mr. Rosenfeldt who is the father of one of Olson's victims. When asked about legal possession and whether these things could be sold, he said:
We investigated that aspect with regard to the videotapes that Olson produced.
We asked the RCMP to look at them and determine whether they could be declared obscene or if they could even be seized. We went so far as to go to the RCMP in British Columbia and ask them if they could get a search warrant to go in and pick up copies of these videos from Olson's lawyer.
We have been told by experts that even though they talk about the crimes and all the details with regard to the sex acts and the murders -- I have seen them and that is what is on them -- they do not constitute pornographic material in Canada. We were stymied with that and could not go any further.
That seems to run contrary to your statement that these would clearly be obscene and therefore illegal.
Mr. Ruby: It clearly runs contrary to the opinion I expressed.
I expressed this opinion because, since Butler, the Supreme Court of Canada has enunciated certain criteria for sexual material. Clearly, as of today, because of the absence of any harm being shown, straight sexuality is not illegal. I can show people having intercourse as much as I like.
There is a grey area one level up which the court says may or may not be obscene and that area is where women are objectified in the course of a sex act, for example.
There is an area they say is always obscene, the third area, sex with violence. I have absolutely no doubt that a graphic description of sex with violence by the perpetrator of it is obscene. The Supreme Court of Canada has no doubt of that. I do not know what the RCMP in BC were doing and I do not know from whom they received advice.
The Chairman: They did not say.
Mr. Ruby: I would be more shocked if an attorney general decided that that was not obscene. I must tell you that my advice to my clients, and my understanding of the law, is that sex with violence is considered obscene in Canada.
Senator Gigantès: As I understood the evidence, what Olson describes in those tapes is not his actual crimes but rather how you could commit the same crime. One does not see any sex scenes. He indicates that this is how one may capture a youngster and what one could do.
Mr. Ruby: Books are obscene even though you cannot see any sex in them. Obscenity, whether it is in writing or in pictures, is still clearly present when there is sex and violence.
Now, I concede that the court has also said that it will be more tolerant of words than of pictures. However, I have no doubt that something like Olson's crimes described in detail would be obscene, whether it is in word, tape or any form.
Senator Gigantès: He does not describe the crimes; he describes how to commit such crimes. That appears to be why the RCMP balked at seizing this property.
Mr. Ruby: I do not find meaningful the distinction between describing how to commit the crime in detail and describing the crime in detail.
Senator Gigantès: According to this witness, the RCMP in British Columbia did seem to find that this distinction existed.
Senator Nolin: There is a bit of hearsay in that.
Mr. Ruby: I would feel better if some attorney general said: "Yes, they exist; yes, I have seen them; and, no, this is my opinion."
Senator Nolin: Who made that statement? We do not know so it is hearsay. I prefer the expert witness we have now.
Thank you for your letter. It is now immortalized in the record of this committee. I take exception to some parts of that letter.
I take your letter as testimony of an expert witness, but for all the references to an elected member of Parliament who is trying in good faith to propose to Parliament a private bill. I do not think we should pre-judge or have any non-expert words in reference to the matter of writing or of trying to be a good parliamentarian. I think it was wrong for you to say that in your letter. As your letter is now part of the proceedings of this committee, I put that objection on the record.
Senator Gigantès: To which part are you referring?
Senator Nolin: I refer to the comment that Mr. Wappel has created a bill which achieves nothing. Not only employees of the Justice Department know how to draft amendments to the Criminal Code. We are basically doing that when we study bills, are we not?
The Chairman: We do make amendments.
Senator Nolin: Yes. I think you know exactly what I mean. That was a non-expert opinion expressed in your letter, but I do agree with the expert part.
Mr. Ruby: I am being a bit dismissive of Mr. Wappel and I think your point is well taken. I appreciate your comment.
Senator Beaudoin: Perhaps he should talk about the substance.
Senator Nolin: I agree with the substance. My colleagues will know about that when I vote on the bill. I think you are on the right track.
Ms Pate: I have a question on the issue of the videotapes and the access that Mr. Olson would have to the sorts of correspondence and videotapes which have been discussed here. Has there been any inquiry to Corrections Canada around the veracity of those claims? Certainly, in the past, there have been investigations into the sort of access Mr. Olson has had to the public. While I am not able to speak authoritatively to that issue, my suspicion is that, as Mr. Ruby has indicated, there is a great deal of restriction on what can be produced.
In my experience, the ability of a prisoner to have access to any kind of electronic equipment is severely limited and very well monitored. I believe that it would be very difficult for a prisoner to have access to a video camera. That requires specific authorization through the regional and national headquarters of the correctional services of Canada. In Mr. Olson's case, I would guess that it would be up to ministerial authority.
The Chairman: That sounds like a valid point. I have been told that it was the warden who wanted to have an interview with Mr. Olson and that the videotapes were produced as part of such an interview. I would hope not, but that is what I was told.
Senator Nolin: When we hear things like this, it is like looking at an expert's brief. We can, amongst ourselves, decide to set aside what is not valid evidence. It is up to the witness to produce to us what he thinks we will read as valid evidence. We hear a lot of hearsay but we are used to that. We do not take that as solid evidence of what has happened.
I can understand your reaction. We had that same reaction but, because there was nothing else to prove it, we have to weigh the statement.
Ms Pate: I remember having a great deal of difficulty getting one video released.
Senator Nolin: It is up to the witness to decide whether he wants to produce something.
The Chairman: Mr. Rosenfeldt has also testified that:
A number of years ago the warden of Prince Albert Penitentiary, Jim O'Sullivan, signed a contract with Clifford Olson. The two agreed to produce a series of 12 two-hour videos in which he would read his book.
We are told that the warden took part because he wanted to provide these videos to the RCMP for research on serial killers. If that is so we would ask: Why does a warden sign a contract with a convicted killer and copyright it? It has been copyrighted in both the warden's name and Clifford Olson's name.
This, of course, is a question which only the warden himself can answer. Again, it is hearsay, but the question is very valid and it follows right in with your question.
Senators, we have a few minutes before Mr. Wappel is due to appear before us. The second item on our agenda is consideration of the draft budget. Perhaps we can deal with that now.
The easiest way to make any sense of a budget is to compare it with the last one. Dr. Lank will give us the figures from last time.
Ms Heather Lank, Clerk of the Committee: There is not a significant change from last year. I will point out the changes.
The first item, professional services, has been reduced from $10,000 to $3,500. The difference there is due to the fact that finance has created a new line object called "videoconferencing," which you will see on the second page, 0226, that we have separated out as a separate item. That is why there has been a decrease under "professional services" where videoconferencing used to be put, and a new line object called "videoconferencing" on the second page.
"Legal counsel" remains the same, as does "membership and registration fees." There is a modest increase under "meals" in the number of meals simply because this is a full fiscal year. There has been a change from $4,500 to $6,000 on that line object.
Travel expenses for participation at conferences or seminars by committee members or staff is the same as last year.
Senator Beaudoin: How much is it?
Ms Lank: There is $4,000 for the travel expenses; ground transportation, $400; per diem, $600; and hotel, $1,000. That is to allow for participation at conferences. Video conferencing is $10,000 in case we need to take advantage of that technology.
The Chairman: I assume that is an item we did not use last year?
Ms Lank: That is correct.
The other change is under "purchase of books and periodicals". It was $1,500 because we had put in money for copies of the Criminal Code and the Constitution. We reduced it to $500 since those purchases have been made. There is also "miscellaneous".
The total is $35,400 whereas last year it was $31,400; is a modest increase.
Senator Lewis: Did you say that videoconferencing was in the budget last year but not used?
Ms Lank: Yes. It used to be put under line audit 0401, "professional services". Now they have created a new line object for it. We did not use it last year.
Senator Gigantès: Why videoconferencing? Do we need to see their body language when they talk to us?
The Chairman: The Internal Economy Committee decreed that we would have budget items for this in case we needed them for communications in general. This was just part of it.
Senator Gigantès: Why not simply a telephone conference call? I do not particularly want to see some of the witnesses -- depending upon who they are -- and I am sure that they do not want to see me.
Senator Beaudoin: I am impressed. For a committee that is working so hard, that is not very expensive.
Senator Joyal: How much of last year's budget was spent?
Ms Lank: We potentially have a couple more weeks of meetings left, so there may be a slight change. However, of the total, approximately $2,500 will be spent. We spent money on copies of the Criminal Code, the Constitution and meals. We did not use any of the other budget items.
The Chairman: We had $31,400 budgeted and only spent $2,500.
Senator Gigantès: I remember you promising us copies of the Constitution and the Criminal Code. Where are they?
The Chairman: I have been informed that the Criminal Code is finally back in print. It has just arrived and will be delivered to your office.
Senator Moore: What is the $4,000 increase for?
Ms Lank: It is in the $10,000 for videoconferencing. Previously we had professional services which totaled $10,000, including both communications and videoconferencing.
Senator Bryden: Is there anything included in the budget to allow the committee to travel, should that become necessary?
Ms Lank: The amount budgeted here would not be enough to allow the committee to travel. We would first need to get the permission of the Senate to travel to examine legislation. We then must pass another budget to cover the cost of travel. This amount is only to cover the cost for conferences and seminars. Were the committee to travel for public hearings, we would do a further budget with a substantial increase in the amount requested.
The Chairman: We do more work than most committees in the Senate and we cost less than most of them. I intend to try to keep the costs down.
Are there any further comments about the budget?
Senator Beaudoin: With regard to videoconferences, I was a member of the committee on euthanasia and assisted suicide. We had a conference with some jurists from Holland which was very useful. It is a good item. We may use it.
Senator Gigantès: Did you find that having the video image was helpful?
Senator Beaudoin: I think it was useful.
Senator Gigantès: Were they moving in a special way?
Senator Beaudoin: No. We had a conversation with legal and medical experts. It was useful.
Senator Gigantès: Did they show you specimens? Did they disrobe to show you parts of their bodies?
I think it is an unconscionable expense.
The Chairman: In defence of this, although I hope we will never have to use it, we have all participated in teleconferences with people from around the country and have not known who was speaking. At least with a videoconference one is aware of who is talking on the other end.
Senator Beaudoin: It is also much less expensive than sending the committee to Holland.
The Chairman: Yes, that is true.
Do I have a motion to approve the draft budget?
Senator Moore: I so move.
The Chairman: Is it agreed?
Hon. Senators: Agreed.
The Chairman: Carried.
We have before us now Mr. Wappel.
Please proceed.
Mr. Tom Wappel, M.P.: I wish to thank you, Madam Chairman and honourable senators, for the opportunity to appear as the final witness with respect to this bill which your committee has been considering.
I have with me today Mr. Frank Brown, one of my advisors with respect to the bill, and Mr. John Macera. Mr. Macera is a copyright lawyer in Ottawa specializing in the area of copyright and trademark law, as he has been since he graduated from Queen's Law School in 1974 with Mr. Brown and myself.
The Chairman: Do you wish them to join you at the table?
Mr. Wappel: Yes, thank you.
Honourable senators, I wish to begin my reviewing the evidence of fellow member of Parliament Wendy Lill. I do so because she has made statements which are categorically false. I believe that it is absolutely mandatory that I set the record straight.
When I appeared before the committee first on October 29, 1997, I specifically outlined the history of this bill -- what happened and how it got to this place for you to consider. Notwithstanding that this was all stated on the record and was easily verifiable by anyone, Ms Lill came to this committee and made a number of false statements. I wish to correct them now.
First, she said:
I understand that on October 1, a private member moved to have his bill passed by unanimous consent, a rather unusual procedure.
That statement is false. The truth is that on Tuesday, September 30, 1997, Mr. Ted White, Member of Parliament for North Vancouver, and not I, moved to have Bill C-220 passed at all stages. He did this without prior consultation with me.
Second, she said:
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.
That statement is also false. The truth is that Bill C-220 is a direct copy of Bill C-205, which was unanimously passed by the House of Commons on April 10, 1997. On Tuesday, September 30, 1997, the Speaker of the House of Commons was going to conduct a private members' lottery to pull the names of members to decide on private members' business for the first session of the new Parliament. In order to have one's name in the draw, a member has to introduce a bill or motion, so on Tuesday, September 30, I stood and introduced Bill C-205, which in the new Parliament was renumbered Bill C-220.
The sole purpose of introducing it on that day was to get my name into the private members' lottery that afternoon. After introducing it, I left the chamber. Mr. White then sought unanimous consent to deem Bill C-220 to have passed at all stages. Mr. Louis Plamondon, Member of Parliament for Richelieu, denied unanimous consent as he wanted to review the bill overnight. Mr. Plamondon suggested that Mr. White's motion be postponed until the next day.
That ended the matter for Tuesday, September 30.
Wednesday is caucus day. The House of Commons begins with Members' Statements and Question Period, and business begins after Question Period, at 3 p.m.
As I am sure honourable senators who have attended the House of Commons know, there is usually quite a lot of activity on a Wednesday afternoon, generally with a lot of people in attendance because it is after caucus and many people attend Question Period.
I happened to be in the chamber on October 1, some 28 hours after I had introduced my bill, and there were more MPs in the house, from all political stripes, than I could count at a quick glance. My whip and my house leader were in the House of Commons. To the best of my recollection, the house leaders for the other parties were also in attendance.
Mr. White rose and moved the motion again. The motion was then agreed to.
Ms Lill's false statement is an insult to Mr. White, an insult to me, and an insult to all of the experienced members, including the whips and house leaders of the various parties who were in the House of Commons on September 30 and October 1, bearing in mind that there had been over 24 hours' notice to everyone, including house leaders and the people from each of the parties who are paid to watch what goes on in the House of Commons.
It is absolutely shocking that a Member of Parliament would come here and make a false statement like that. I can only attribute it to the newness of the honourable member. However, I cannot attribute anything but malice or stupidity to the third false comment that she makes, which is also in her evidence. She said:
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 --
-- meaning me --
-- retabled Bill C-220 without adding the recommendations that had come forward from the parliamentary committee.
This is also false. The truth is that Bill C-220 is identical -- word for word, comma for comma, period for period -- to Bill C-205, as amended by the house Justice Committee, passed on April 10, 1997 by the House of Commons.
Fourth, Ms Lill misreads my bill. She says that Bill C-220 would require that "anyone charged with a federal offence" would forfeit both the copyright and royalties of a work which focused on their crime.
This is a total misrepresentation of my bill. It is clear by any reading of the bill that a person must be convicted of an indictable offence before any of these provisions apply to them. Only once they have been found guilty of the offence and stand convicted, do the provisions which would apply to any works about the crimes created prior to the conviction come into force. There must be a conviction. Indeed, the clause that was referred to refers to the person as the convicted person.
Those are four indications that Ms Lill does not know what she is talking about. Yet, she comes here to attempt to convince senators that there is something wrong with this bill.
The Chairman: Before you go any further, I should remind you that the rules of parliamentary language apply here as they do in the House of Commons. We must be gentle about how we refer to other Members of Parliament.
Mr. Wappel: Very well. I will perhaps be raising that myself.
A person who cannot correctly recite historical facts as documented in Hansard, who impugns the integrity of the House of Commons and its processes, and who suggests underhandedness by me in altering a bill previously amended by the House of Commons Justice Committee and passed by the House of Commons is not someone to whom this committee should afford any credibility.
Now that I have gone over the true history of what happened, we should also remember that this bill did not get magically spirited through the House of Commons, as some witnesses have suggested. We must recognize that in its previous life this bill did in fact receive the full debate to which it was entitled under the rules of the house. We must realize that 23 Members of Parliament spoke to it, including the Official Opposition justice critic, the Reform Party justice critic, and members of the Liberal Party, all but two of whom supported the bill.
One person who did not support the bill was the parliamentary secretary to the Minister of Justice. It must be obvious to honourable senators that his speaking notes would have been prepared by the Department of Justice. This is important for you to remember as I point out some of the comments that Mr. Mosley made in his evidence, including the statement that the department never had an opportunity to give its views on the bill. One need only read the parliamentary secretary's speech to realize that this is incorrect. Therefore, it is neither fair nor accurate to say that this bill has not been debated by the House of Commons.
Ms Lill was not the only witness before you who created and left a false impression in several areas under discussion in this bill. Let me turn your attention, honourable senators, to the evidence given by the Department of Justice. I intend to examine this in some detail because it is not possible for me to deal with all the rhetoric that was brought forward by the writers' unions and their cheerleaders to the degree that I would like, but I can and will deal with the legal objections, because those are the ones that must be refuted.
On Tuesday, April 8, 1997, Mr. Mosley appeared before the Justice and Legal Affairs Committee of the House of Commons. He is described in the transcript as Assistant Deputy Minister, Department of Justice, and President, Uniform Law Conference of Canada. That conference's mandate, as he told the committee, is to facilitate and promote the harmonization of and improvements to laws throughout Canada by developing, at the requests of the constituent jurisdictions -- that is, the provinces and territories -- uniform acts, model acts, statements of legal principles, proposals to change laws, and other documents deemed appropriate to meet the demands that are presented to it by the constituent jurisdictions from time to time.
Mr. Mosley then proceeded to tell the committee that the Uniform Law Conference of Canada was working on the area which is under consideration in my bill; namely, the proceeds of crime and how to prevent criminals from benefiting from the selling of the stories of their crimes. By the way, he was there as a witness considering Bill C-205. He advised that a model statute would be presented to that year's conference in Whitehorse, Yukon. He also said:
The request by Deputy Ministers was approved by Ministers responsible for Justice at their annual meeting in Fredericton, New Brunswick, at the end of February.
I mention that to emphasize that this project now has the concerted support of all the jurisdictions in Canada. What project is that? Well, Mr. Mosley told you on page 6:26 of the transcription of his evidence before you, where he says that the draft law that has the support of all the Ministers of Justice of Canada, the provinces and the territories, provides for the proceeds of the publication of accounts of crime to be vested in a province. He then proceeds to show you what is to happen, including that the proceeds would be held by the province in trust for the victims of the offence, who could then apply to an administrative agency for payment out of those moneys.
These are the principles of the draft uniform law that have been agreed upon by the responsible ministers of the provinces, territories and the federal government.
This is the chairman of the Uniform Law Conference which is drafting a uniform law to seize the proceeds of publication of accounts of crime and give them to the provinces, obviously in order to prevent criminals from profiting from selling the stories of their crimes. At the same time as he is chairing that committee and working hard to accomplish what my bill is trying to accomplish, he has the audacity to tell your committee, in response to a question by Senator Cogger:
We are very sympathetic to the motivation behind this initiative; however, I cannot accept that we agree with the principles outlined in the bill. We have considerable difficulty with the principles.
What is the principle? The principle is to prevent criminals from profiting by selling the stories of their crimes. That is exactly what the draft uniform law is doing. This law was drafted and moved forward under his jurisdiction as president of the Uniform Law Conference, as he stated in his own words. Mr. Mosley has told you two things which are in totally in opposition to each other.
As well, Mr. Mosley told you that his appearance before you was the first opportunity he had to comment on Bill C-220, which was then Bill C-205. Yet, he appeared as a witness at the House of Commons Justice Committee's consideration of Bill C-205. I was there. He was not muzzled. He could have made comments about the bill, particularly since the principles are similar to the draft uniform law of which he was in charge in his capacity as chairman. Indeed, I had requested numerous meetings with Mr. Mosley as the bill was proceeding through the House of Commons. He never met with me, although he did send Mr. St. Denis once to meet with me. Mr. St. Denis indicated that the Department of Justice had no interest in working with me on the bill but would respect the will of Parliament if the bill passed.
Mr. Mosley also told the house committee that this work has been going forward -- that is to say, his work on the uniform draft law -- since a paper was presented to the conference in 1994, and that this had been discussed with various ministers in various jurisdictions over various periods of time.
For groups such as PEN to come before this committee and say that such things have never been heard of, or that they have not been discussed, or that they were not debated in the House of Commons, or that people were blindsided, indicates that they are in what I call a Rip Van Winkle syndrome. They should wake up, pay attention to what is going on and listen to what average Canadians are saying, as indicated by the actions of their elected representatives, and support the principles of this bill.
Mr. Mosley told you in his appearance before this committee:
New York State legislation was adopted in the late 1970s which stood as a model. That statute was subsequently struck down by the U.S. Supreme Court.
That case stemmed from a law seizing the profits of a book published by Simon and Shuster publishers. The court in that decision assumes that the state has a compelling interest in depriving criminals of the profits of their crimes -- in that case, the publishing profits from a book about the crimes.
He stops there. He did not say anything more than that the law was struck down. Therefore, the implication to this committee is that this is the current state of the law in the U.S. This is a glaring and damning omission. Why? Well, he did say something further in response to my questions in the House of Commons Justice Committee when it was studying my bill. I said:
Much has been made about the Son of Sam law and how the original Son of Sam law was struck down. I believe the phraseology was because it was inconsistent with the first amendment to the American Constitution concerning freedom of speech. Is it not true that the court said such a law could survive and would be constitutionally permissible provided the state demonstrates the limitation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end?
Mr. Mosley replied:
Yes, and I think that the State of New York did, in fact, subsequently adopt or draft a law to take into account the direction received from the Supreme Court.
I then said:
So such laws are, indeed, constitutional provided they are properly drafted following the Supreme Court's guidance in the Son of Sam case or actually, Simon and Shuster.
Mr. Mosley then replied:
Yes, we believe a constitutionally valid law can be drafted.
I then asked Mr. Mosley:
And is it also true that the Supreme Court of Canada, according to this paper --
-- referring to a paper written about the Uniform Law Conference and its consideration of this issue --
-- has cautioned against and I again quote from the paper "a slavish adherence to American precedence principally because the American Constitution does not contain a justificatory clause similar to section 1 of the Charter, you would agree with that, wouldn't you?
Mr. Mosley replied:
I don't disagree with that. I would point out, however, that our Supreme Court has also recognized how important a right freedom of expression is within our society.
Mr. Mosley failed to tell you that over 43 of the United States of America and the District of Columbia have legislation which in one way or another seizes the proceeds of crime, which are deemed to include works sold by a convicted criminal, that these laws are all on the books, and that they have not been struck down. Indeed, there is no reason to believe that they will be struck down by the Supreme Court. This has occurred over a period of 20 years since the decision of the U.S. Supreme Court in the Son of Sam case.
Mr. Mosley and his colleagues then go on to try to make many distinctions about using the criminal law in this instance. A number of points can be raised which in my view would show their faulty logic and how they, in their testimony, were not entirely clear with the committee. I bring this to your attention because it affects the committee's views on the veracity of the evidence that they gave.
Mr. Mosley specifically said that the proceeds of crime provisions -- he used the word "convictions", but "provisions" is what he means -- in the Criminal Code are meant to be engaged only when proceeds are derived from the commission of an actual crime. He says that "it would be inconsistent for this part of the code to use its provisions to confiscate moneys earned from a non-criminal act." Senator Cogger quite rightly then pointed out to him that the Crown had recently seized a ski chalet which was quite properly and legally operated. Mr. Mosley, having recognized that his previous statement was rather sweeping, retreated by saying:
However, the source of the funds by which that resort had been acquired, by the persons from whom it was seized, was criminal. It was a question of following the money obtained by the commission of the crime, as it changed form and was invested in the real estate, and then the real estate was seized. There is a direct chain between the criminal act and the conversion of the funds into another form.
That is not what he told you earlier when he told you it would be inconsistent to use the Criminal Code to confiscate moneys from a non-criminal act, when what we really meant was, as long as you can establish a chain, you can seize whatever it is, even if it is a perfectly legitimate activity. It is my submission that there is a link between a person writing about a crime they committed and the fact that they committed it because they could not be writing a first person account of the crime unless they did it.
This might be an appropriate time to discuss with honourable senators one of the amendments that I am suggesting that you consider. There is something with which I agree in the evidence given by Mr. Mosley. He says the following:
If the proposed amendment to the Copyright Act is adopted --
Here he is referring to that portion of my bill that deals with copyright.
-- the holder of the copyright would receive all moneys resulting from the publication of the work.
That is the Crown. He goes on to state:
That being the case, there would be no need to amend the Criminal Code to allow for the seizure or confiscation of the moneys from the sale of these books. The moneys would already belong to the state as owner of the copyright.
Therefore, if this bill is passed with its copyright section intact, I agree with Mr. Mosley that the criminal law provisions would not be needed. Although they are perfectly constitutional in my view -- and, I could spend a lot of time arguing that point with you -- in view of his very statement that they are not needed if the copyright provision passes, I am proposing that honourable senators consider simply deleting clause 1 in its entirety from my bill. This would totally take the bill out of the ambit of the proceeds of crime section of the Criminal Code. It would, therefore, obviate the angst, concern and discussion about the meaning of the words contained in clause 1(c), and it would obviate any discussions with respect to a member of a person's family, which is contained in subclause 2. The concerns that honourable senators and witnesses had about members of family being involved under the Criminal Code would simply vanish.
I suggest that clause 1 could be deleted in its entirety, the reason being that if the copyright section passes, then the copyright belongs to the state and the proceeds belong to the state. Therefore, there is no need to use the proceeds of crime section.
It is Mr. Mosley's belief that the legislative initiative would be a prima facie breach of section 2(b) of the Charter because it amounts to content-based restriction on freedom of expression. That is his opinion, and he is entitled to it. My opinion is the contrary. For the reasons that I already indicated in my earlier testimony, I do not agree with that approach.
Honourable senators, there are already exceptions to the general rule of restrictions on content-based grounds. We already have content-based restrictions on freedom of expression. For example, one cannot write a book or make a movie about child pornography. That is a restriction based on content. One cannot write a book or sell a story advocating the destruction, for example, of the aboriginal people by gassing. That is a restriction based on content. There are exceptions to the general rule. I would argue that one of the exceptions to the general rule could be that it is in society's best interests not to permit criminals to benefit from their crimes by selling the stories of their crimes. This is an argument that can and should be put forward to the Supreme Court of Canada rather than killing the bill in this committee.
Even if it were true and there is a prima facie breach of section 2(b) of the charter, we still have section 1 of the Charter to save it. Honourable senators might say -- and some of the witnesses no doubt would say -- "Well, that is a stretch." I say "No." Each of your senators must retire at age 75. The legislation that requires you to retire at age 75 is discriminatory on the basis of age. It is a prima facie breach of section 15 of the Charter. In the university professor's case, the Supreme Court of Canada held that to be the case, namely, that mandatory retirement laws are a prima facie breach of section 15 of the charter. Yet, the Supreme Court of Canada used section 1 to say that, notwithstanding that mandatory retirement is a prima facie breach of the charter, it would be saved because of the greater good to society that results because of that law. They went on to expound on why that was the case. Simply because something is a prima facie breach of the charter does not mean that it will be struck down as unconstitutional because the court can save it under section 1. That is a question, in my respectful opinion, not for this committee but for the Supreme Court of Canada, based on an actual fact situation.
My position is that I disagree with Mr. Mosley and there is no prima facie breach of section 2 (b). However, if there were, the public policy argument that a criminal should not benefit from committing a crime would override such a prima facie breach using section 1. That is a decision that the Supreme Court of Canada must make based on full legal arguments and a proper case before it, not something to be decided by this committee.
As this bill has been passed by the House of Commons, where there are two arguments with respect to constitutionality, I urge that you favour the argument that supports constitutionality because that is the argument that supports the passage of the bill by the representatives of the people. It is then up to the Supreme Court of Canada, in a proper challenge, to decide whether or not section 1 would apply, assuming that there even is a prima facie breach.
Mr. Mosley indicated that he had serious concerns about the bill being ultra vires of Parliament. He is talking about the division of legislative powers established by sections 91 and 92. Mr. Mosley, being a lawyer, should have chosen his words more carefully. It is clear, based on the evidence of his colleague subsequently, that it is not the bill that he maintains is ultra vires but, rather, only the provisions dealing with the proceeds of crime.
This is confirmed in a statement made by Mr. Jeff Richstone, Senior Counsel, Canadian Heritage, Department of Justice, at page 6:24 of the transcript.
He was responding to Senator Beaudoin when he said:
Senator, on the copyright issue, I share your views on the division of powers issue. The amendment dealing with the Copyright Act would be pith and substance copyright legislation and, therefore, valid under a division of powers approach.
Since I have already proposed that honourable senators delete clause 1 of my bill, there are no further provisions dealing with the proceeds of crime section of the Criminal Code and, therefore, there are no further arguments that can be put forward with respect to the ultra vires of my bill.
On page 6:21 of the proceedings of the committee, Mr. Mosley says the following:
The bill does not propose to make it a crime to publish accounts of crime.
That is quite true. He then states:
Rather, it is the money earned directly from those acts --
I emphasize "directly from those acts". Mr. Mosley continues:
-- which is sought to be taken away from the author. From this perspective, it is difficult to characterize such money as fruits or proceeds of crime that may be subject to federal regulation.
Mr. Mosley may have difficulty seeing the connection but the Supreme Court of the United States had this to say in the Son of Sam case:
The parties debate whether book royalties can properly be termed the profits of crime, but that is a question we need not address here. For the purposes of this case, we can assume without deciding that the income escrowed by the Son of Sam law represents the fruits of crime. We need only conclude that the state has a compelling interest in depriving criminals of the profits of their crimes, and in using these funds to compensate victims.
The justices struck the law down on the issue of broadness -- in fact, over broadness -- not on a failure to recognize a nexus between the crime and the profits from a book about the crime.
I should now like to turn you attention to the Berne Convention. I wish to state to honourable senators categorically that there is nothing in this bill that is contrary to the Berne Convention. Not only is there nothing in this bill which is contrary to the Berne Convention, but I will demonstrate that there are currently provisions in the Copyright Act which specifically take away an author's ownership of the work. These provisions are currently on the books in Canada and have been for some time. They have neither been objected to, constitutionally other otherwise, nor have they been objected to by the international community as contraventions of Berne.
Notwithstanding that I mentioned these sections to honourable senators in my first appearance, these sections were neither put to any of the witnesses nor were they asked their opinions concerning why it is that we already have in the Copyright Act laws which take away the ownership of works by their very authors.
Mr. Mosley states that the Berne Convention provides the general principle that authors in the Berne union shall enjoy the rights set out in the convention along with the rights given to other Berne nationals by the laws of member states.
That is an incorrect statement of the principles of Berne. The fundamental principle of the Berne Convention requires each member country to extend to authors and works of all other member countries the same copyright protection as it does to its own nationals.
Please note that the principle is not to extend a uniform international set of principles somehow codified in the convention, which is what was implied by Mr. Mosley, but to give the same protection to foreigners as to nationals. Mr. Mosley misstated the principles of the Berne Convention.
The articles of the Berne Convention, in and of themselves, are of no legal effect in Canada, but because our domestic law, which is our Copyright Act, is derived in part from these articles, the convention serves as an interpretative tool, not a binding tool, to domestic legislation.
It is also a fact, honourable senators, that the word "author" is not defined in the Berne Convention; therefore, it is up to domestic legislation to define the word. The domestic law of Canada, as well as other Berne signatory countries, provides for deemed authorship in other than the actual author, and these deeming provisions have not been opposed by the international community.
I cite specifically Crown Copyright, section 12, and the employer/employee provisions of section 13.3 of the Copyright Act. I have given them to you and I should like to go through them, if I may.
Section 12 states:
Without prejudice to any rights or privileges of the Crown, where any work --
We are not talking only about books here, but "any work". The section goes on to state:
-- is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for a period of 50 years from the date of the first publication of the work.
That section says that if you work for the government and you create a work by or under the direction of the government and you are the author of that work, the copyright in the work belongs to Her Majesty.
If a law-abiding citizen, who has never committed a crime and who works for the Government of Canada, authors a work, section 12 of the act specifically states that that author does not own the copyright to that work, although he or she authored it. Her Majesty the Crown owns the copyright.
If that is a legal provision in the Copyright Act of Canada that has never been challenged constitutionally or under the Berne Convention, to which we are a signatory, what is the difference between that law and a law giving the copyright of a work to Her Majesty where a person convicted of a crime creates a work about that crime? There is absolutely no difference whatsoever.
Section 13.3 states:
Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, ...
That section says that the owner of the copyright is not the author of the work but, rather, the employer is the owner. That section is currently in the Copyright Act. It has not been challenged either as being unconstitutional or as being contrary to the Berne Convention, and it takes away the copyright from the creator of the work and gives it to the employer. In our current copyright legislation we have a situation where copyright is taken away from the creator of the work and given in one instance to the Crown and in another instance to the employer. There is no right for the true author to publish; only the owner of the copyright can decide this.
My bill is taking away the copyright of the creator of the work, who is a criminal, and giving it to Her Majesty. If it is perfectly permissible for the copyright to be taken away from law-abiding citizens in named circumstances, why not from criminals? There is no answer to that and Mr. Mosley did not address that since it was not put to him.
If the copyright sections of this bill are inappropriate, unconstitutional and contrary to Berne, then so are sections 12 and 13 of the Copyright Act. Since no one has suggested to this committee that those two sections are contrary to the Constitution or Berne, it should not be suggested that my amendment to the Copyright Act is contrary to the Constitution or to Berne.
Mr. Mosley also stated that article 17 of the Berne Convention is the only provision dealing with state control over works. He told you this:
This article has been interpreted as allowing states to criminalize certain works for the purposes of controlling obscenity, hate propaganda, et cetera. This provision in no way allows the state to expropriate the copyright in that work, for whatever reason.
Let us read section 17 of the Berne Convention. It states:
The provisions of the present convention cannot in any way derogate from the right belonging to the government of each country of the union to permit, to control, or to prohibit by means of domestic legislation or police the circulation, representation or exhibition of any works or productions in regard to which the competent authority may find it necessary to exercise that right.
Since we already have sections 12 and 13 of our act whereby copyright is vested in the Crown or an employer, we would already be breaching article 17 if we adopted Mr. Mosley's interpretation. Clearly, we are not breaching article 17, and sections 12 and 13 remain in force to this very instant.
Another point I wish to remind honourable senators about is what I said when I was here first, which comments were not put to Mr. Mosely and his experts. The Berne Convention does not define "author". It does not define "initial ownership". It is up to member countries to define "initial ownership" according to domestic law. That is exactly what Bill C-220 does. It defines "initial ownership" of the work as being in the Crown.
David Vaver in his article, "Copyright in Foreign Works: Canada's International Obligations", points out that countries often allocate ownership to the employer -- not just Canada, but to other countries -- using legal techniques which vary from vesting the copyright initially in the employer, to creating an automatic assignment of rights from the author to the employer. Please note that countries can vest the copyright in the employer. In fact, they do. That goes directly contrary to Mr. Mosley's interpretation of section 17, whereby he said it would prohibit the expropriation of the copyright. Bill C-220 proposes to vest ownership of the work in Her Majesty. This is consistent with already established practices in member countries.
L.E. Harris, in her article entitled "Ownership of Employment Creations", points out that many convention countries have employer ownership, and there have been no complaints that employer ownership is against international obligations during the 62-year existence of such provisions. Therefore, I must ask again: If the true author's work can and is deemed to be owned by the author's employer or by the Crown, how can one object that a criminal author's work about the crime is deemed to be owned by the Crown, particularly when such deemed ownership is made for public policy, public safety, peace, order and good government reasons?
My bill states the copyright that would otherwise vest in the convicted person shall belong to Her Majesty. The definition of the word "vest" from Black's Law Dictionary is, "having the character or given the rights of absolute ownership." This definition means that the proposed amendment to the Copyright Act vests initial ownership in Her Majesty. This provision creates a deemed assignment of copyright upon creation and, as such, is clearly analogous to the employer/employee provisions, section 13.3 of the Copyright Act, currently in force in Canada. It is also analogous to employer/employee provisions in force in other Berne signatory countries. As stated, statutory employer ownership provisions are not in contravention of the Berne Convention. For the same reasons, the proposed amendment in my bill is not in contravention of the Berne Convention. That is why I have used the copyright law to prevent criminals from circumventing our laws by going outside Canada's jurisdiction.
In fact, Stephen Reid, in an offhand comment which he made here that some of you senators may remember, said that is why criminals do not publish in Ontario, because Ontario has a law. If the Uniform Law Commission comes about -- which it appears it will -- they will not be able to publish in Canada but they can do so outside of Canada. That is why I am using the copyright provisions.
I wish to turn briefly to the argument that this bill is somehow unconstitutional. Since I have already proposed to senators that we eliminate section 1, I will not make arguments with respect to its constitutionality, which I believe exists.
Let us deal with the copyright section. Clearly, this is not provincial jurisdiction, as was conceded by Mr. Mosley's official, Mr. Jeff Richstone. Clearly, the Copyright Act is federal jurisdiction and there is a state interest in preventing criminals from profiting from selling the stories of their crimes, as the fact of laws in 43 U.S. states, the Ontario law, the unanimity of ministers on the draft proposal made at the Uniform Law Conference, and the passage of Bill C-220 by the House of Commons clearly demonstrate.
Some have said it is not a crime to write a book. That is an incorrect statement of the law. It depends on the book you want to write. It is clearly contrary to the law to write a book which details child pornography, or which advocates the overthrow of the state by violent means, or which advocates the destruction of an identifiable group of people. The issue is not whether or not writing a book is legal, so let us be clear about that. Let us also be clear that this bill is not just about profit from books about your crimes -- it is about similar videos or movies; it is about selling your story to someone who makes a movie about it and glorifies your criminal past. The principle is that the criminal should not benefit from this.
This bill does nothing to stop anyone from talking to a journalist; it does nothing to stop anyone from being interviewed on the radio; from talking to their warden or to other prisoners; from writing poetry or from discussing what experiences they had. Indeed, it does not even prevent them from writing a manuscript about the crimes they have committed.
It seems that some people are afraid that this bill may somehow be unconstitutional because it is against the freedom of expression provisions of the charter. I have already addressed those concerns in terms of section 1 and the fact that in my view they do not breach the freedom of expression provisions, but I am prepared to offer another suggested amendment to honourable senators. This would preserve the intent of the bill, which is to vest the ownership of the work in the Crown, thereby permitting the Crown to prevent the criminal from making a profit by publishing the work. It would not prevent publication. The amendment would be an addition to section 3 of the bill, now new section 12.1 of the Copyright Act. You will see it on the sheet of amendments that I am distributing. Please note that the amendment, which is the last paragraph there, would require the Crown to grant a royalty-free licence to any person, including the convicted person, "who desires to publish any work which belongs to Her Majesty pursuant to subsection 1 herein, provided that the publisher and the author satisfy Her Majesty, by way of affidavit or statutory declaration, that no monetary or capital benefit will directly or indirectly benefit the convicted person."
This amendment would mean that the objection that the work would not be published is torpedoed. Theoretically, every work could be published since the Crown would have to give permission to publish the work. Not every work would be published, because that is a publisher's decision, but the opportunity to publish every work would exist because the Crown would have to allow the licence, provided that the publisher and the author satisfy Her Majesty that the criminal will not get the profits. That is the principle of this bill. Indeed, a criminal could write a book about the crime, the copyright would be vested in the Crown, and the Crown must grant a mandatory licence to publish if the Crown is satisfied that the moneys would not be going to the criminal. That is in accordance with the principle of the bill, and that would deal definitively with that objection.
Honourable senators, there were certain other criticisms of the bill, which included a criticism that because the bill provided that the offence was one which may be proceeded with by indictment, it might include what would otherwise be known as trivial offences. Well, any offence that can be proceeded with by indictment could result in a penitentiary term of two years, which is hardly a trivial matter. However, I understand the objection. Unfortunately, I am torn here. If we accept the principle that a criminal should not benefit from selling the story of their crime but we are to water it down, then we are doing that. However, sometimes in politics one must live with the art of reality. If we accept that principle, namely, that a criminal should not profit from his crime by selling the story of his crime, then let us at least hope that people will not be interested in reading about someone who stole a chocolate bar from a variety store.
Let me deal with the objection. I propose that honourable senators change the wording in the bill so that it would apply only to people who are convicted of an indictable offence. This suggested amendment is also shown on the sheet I have passed around.
In summary, I have now met all of the objections to the bill. There would be no question of its ultra vires with respect to the criminal law amendment because it would not be part of the equation any more if you remove section 1. There is no question that the Parliament of Canada has the power to deal with copyright.
There is no question that the Parliament of Canada has the power to vest initial ownership in either the Crown or in employers as it deems fit under sections 12 and 13 of the Copyright Act; therefore, there can be no question that it can do so under this bill. There can be no question that the reason for doing this falls under the criminal law jurisdiction and, therefore, there can be no question of the constitutionality of this with respect to division of powers.
Using my amendment, the Crown would have to give a licence to publish. Provided that the criminal did not benefit monetarily, there can be no argument that it would be contrary to the provisions of the Charter against freedom of expression since the ability to get published would be preserved. There could be no argument of state censorship.
Honourable senators, in conclusion, I now wish to briefly address two specific items insofar as they pertain to the Senate. First, I did some research with respect to private members' bills and the role of the Senate. It might be of some interest to honourable senators to know that between the years 1940 and 1990, no bills received by the Senate from the House of Commons were defeated.
The Chairman: Do you mean private members' bills?
Mr. Wappel: I mean government bills.
Since 1990, the Senate has rejected three House of Commons government bills at third reading: Bill C-43, the proposed legislation respecting abortion, in 1991; Bill C-93, the proposed Government Organization Act, in 1993; and Bill C-28, the proposed Pearson International Airport Agreements Act, in 1996.
In parliamentary terms, the reluctance of the Senate to reject government bills except in extraordinary circumstances stems from respect for the elected chamber rather than the status of the government. Once a private member's bill has passed in the House of Commons, I submit it should be on the same parliamentary -- although not necessarily the same political -- footing as a government bill.
My research has found that the last private member's bill that was formally rejected by the Senate was rejected on March 21, 1939, 59 years ago, almost to the day. I do not believe that the Senate has ever rejected a private member's bill that was passed by the House of Commons unanimously, never mind unanimously by two separate Houses of Commons.
I ask honourable senators to consider carefully the message that would be sent by this chamber if it were to reject this bill, the first private member's bill to be defeated in the Senate in 60 years. Undoubtedly, it would send the message that the principle of the bill had been rejected and that all suggested amendments by the author of the bill were rejected. It would clearly send a message that notwithstanding that Ontario already has a law confiscating the profits from works by criminals, notwithstanding that you already heard evidence from Mr. Mosley that the jurisdictions in Canada are united in their determination to come up with a uniform law across the 10 provinces and two territories which would provide for the proceeds of the publication of accounts of crime to be vested with the respective provinces, and notwithstanding that all of our jurisdictions are moving in this direction and that 43 states of the United States of America have similar legislation in one form or another, and that the House of Commons has passed this bill unanimously, the Senate rejected this bill.
I ask senators earnestly to consider the ramifications of the message that they would be sending if they were to do this.
Finally, honourable senators, I have further researched the role of the Senate. My researchers came across an interesting quote from Senator Connolly, in a speech from July 7, 1977, at pages 1109-1110 of the Debates of the Senate. Senator Connolly described what he considered to be the appropriate approach to use in a situation where the Senate supports the principle of a bill, but there are some problems or perceived problems either in this drafting or other technical aspects.
Senator Connolly stressed that the role of senators is to work with the sponsor of the bill to iron out any defects. The bill that he was discussing was, in fact, a private member's bill. He said:
I believe also there is a responsibility on the part of individual senators to assume this kind of work when asked to do it.
That is to say, helping to better a bill. He goes on to state:
I recall seeing how the system worked in the British House of Commons a good many years ago when a new member, Mr. Roy Jenkins, who was later to become a prominent member of that house, was sponsoring a private member's bill. He was in earnest consultation with Lord Birkett who, as honourable senators know, was a distinguished lawyer. They were discussing the precise meaning of the legislation which had already passed the British House of Commons and was then going to the House of Lords. Birkett said, "You know, it is our duty to take on these tasks that come to us from the other place, and to deal with them as well as we can."
Thus, I urge honourable senators to consider carefully the arguments that I have put forward and to do everything that you can to preserve the principle of this bill and to preserve the bill in the form that it currently stands or, in the alternative, to seriously consider the amendments that I put forward, or put forward some amendments of your own. I stand ready to assist you and your counsel in this regard.
The people of Canada, through their elected representatives, have spoken. They do not want criminals profiting from works that they create, which are substantially based on the crimes for which they were convicted. This is an affront to the principles upon which our society is based. Our laws are moving forward to prevent this affront. I ask honourable senators not to be left behind but, rather, to seize the baton that has been passed to them by the House of Commons and pass this bill.
I wish to end as I began, by thanking honourable senators for their thoughtful consideration of this bill.
The Chairman: Before I open it up to question from members around this table, I would ask you to provide us with a French version of your amendments as soon as possible.
Mr. Wappel: Yes.
Senator Gigantès: Do you still think that this bill, as amended, would create a source of income for victims?
Mr. Wappel: Initially, my hope would be that there would be no such books. However, if there are books like that and the Crown does seize the moneys, it would be my hope that, along with the scheme in the uniform law, the government, having seen that this bill has passed, would set up a similar provision as is currently in the uniform law, to set up a trust fund which victims could then access.
Unfortunately, being a private member's bill, I was not in a position -- and I have explained this before -- to put in provisions into a private member's bill that would tell the government how to spend money. Otherwise, there would have been no opportunity for this bill to get anywhere. Should this proposed legislation be accepted and passed into law, I would urge the government to set up a trust fund immediately along the lines of a uniform law and allow it to be accessed by victims.
Senator Gigantès: Do you think it would be tolerable for the Government of Canada to grant a royalty-free licence to any person who desires to publish the memoirs of Mr. Bernardo?
Mr. Wappel: This is a difficult question. I believe my bill is constitutional the way it stands and it should be left the way it is. However, if senators are of the view that there should be a right to publish, then I have made this proposal as a suggestion.
If honourable senators have nuances that they wish to add or suggestions that they wish to discuss, that is fine by me. It is far more tolerable for the Crown to grant a licence and ensure that the proceeds do not go to Bernardo than it is for Bernardo to get the proceeds.
Senator Gigantès: How about the government not granting the licence? You say "shall" here. You would oblige the government to grant a royalty-free licence to produce the memoirs of Bernardo and that, to me, is an obscenity.
Mr. Wappel: You seem to be inconsistent, senator, with your previous comment.
Senator Gigantès: The only consistent people are murderers.
Mr. Wappel: The problem is that if we are going to try to deal with an objection that we are somehow allowing state censorship, then if we make the provision less than mandatory, we still are left with the argument that the state could decide not to allow the royalty, and thereby we have the argument of state censorship that has been put forward to you by other witnesses. The reason the amendment is put forward is to make it mandatory so that no one could argue that the state would be the final arbiter as to what was published or not.
Senator Gigantès: That is something that is unthinkable for me, and I should like to take you to the case of Donald Marshall, Jr. You said that someone who has not committed a crime cannot describe it.
Mr. Wappel: In the first person.
Senator Gigantès: He witnessed it, he saw it, he described it in court and no one believed him and he went to jail for 11 years. He collaborated with someone called Michael Harris, not the Premier of Ontario, a journalist who wrote a book called Justice Denied. It was thanks to this book that Donald Marshall, Jr. was finally acquitted. Do you really think that if your bill had existed, it would have been possible to do all this?
Mr. Wappel: To do all what?
Senator Gigantès: To do what Donald Marshall and Michael Harris did, namely, collaborate and write a book.
Mr. Wappel: Yes. There is nothing in the bill that prevents anyone from collaborating.
Senator Gigantès: No, the bill as amended.
Mr. Wappel: Never mind "as amended". The way it exists now there would be nothing that would stop anyone from collaborating. What it would stop would be the proceeds from going to the criminal. Remember the definition, senator, of "collaborate." According to the Concise Oxford Dictionary of Current English, "collaborate" means "work jointly on". If someone is interviewed or spoken to or discussed, that does not mean they are collaborating. There must be a joint work. I do not accept necessarily the word because I do not know the facts as to whether there was collaboration or whether there was a ghost writer or whether Donald Marshall simply spoke to the writer who then took the cause on. These are legal issues.
My answer to you would be that, under the bill as amended, the work would have been published in any event and any proceeds that would have been flowing to the convicted person would not have flowed to the convicted person.
Senator Gigantès: I will leave this to the lawyers around the table, who are numerous and better qualified than I to argue with you.
I admire your work. You did it well. I should like to point out in the end, when you were warning us about the dreadful consequences of our acts, you were guilty of an indictable offence called intimidating Parliament. If you and I collaborated to write a book about your campaign and your attempt to intimidate the Senate, we would have the copyright of the book seized.
Mr. Wappel: Let me assure honourable senators that, of course, I know the senator is speaking tongue in cheek.
Senator Beaudoin: We are the legal committee and our first duty is to hear legal experts and any other person who may contribute to this debate, and this is what we have done. Parliament may amend the Copyright Act, but even if you do amend it, will this solve the division-of-powers problem? I have serious doubts. Suppose it does. We are still faced with the problem that is fundamental, and you accept that it is against freedom of expression. However, where we may disagree, where you and the others are disagreeing, is that you consider that it may be justified under section 1 of the Canadian Charter of Rights and Freedoms. I do not think so, and all the experts we have heard so far are of the same opinion.
What is your reason for concluding that it may be justified, in a free and democratic society, to put such a restriction to a fundamental freedom that is the freedom of expression?
Mr. Wappel: First, I do not accept the principle that my bill is against the Charter. I do not think you were present when I made my first presentation, in which I went into a lengthy argument as to why I did not think it breached section 2(b) of the Charter. I still do not think it breaches that section of the Charter because there is nothing in the bill which prevents a person from expressing himself. There is nothing that guarantees the right to make a profit or the right to be published. Publishing and who publishes is a decision for publishers.
Under this bill you can, as I said, be interviewed by anyone. You could talk to any journalist you want, you could write any manuscript you want, and that is freedom of expression. You could stand on a soap box, you could go on a radio program, you could go and speak to fellow prisoners. Nothing in this bill prevents you from expressing yourself. I say that the people who say that it is contrary to freedom of expression have taken that expression too far, because they have taken it to mean that you are entitled to be published and entitled to make a profit, and that is not in our Constitution. What you are entitled to do is to be able to express yourself, and there is nothing in this bill that stops you from being able to express yourself, so I do not accept that.
The remainder of the question was: Why would it be that it would be accepted under section 1? I believe that is the gist of what you are asking. The answer is because it has been for centuries the position of the common law that a criminal must not benefit from his criminal acts. We in this society do not allow that sort of thing to happen. This is -- and I have used these examples before -- a benefiting from the criminal act. Thus, the courts, in my judgment, would say that you cannot benefit from the act of telling the story of the crime.
Senator Beaudoin: I do not wish to discuss that. My question is clear: You say it is not against the freedom of expression so we do not have to go one step further, as the court is doing every day. If it is against fundamental freedom, the next question is: Could it be justified?
Mr. Wappel: Correct.
Senator Beaudoin: But you say we cannot go that far. It is not against the freedom of expression; this is what you say.
Mr. Wappel: I say two things. Yes, it is not against the freedom of expression, and if it is, it will be justified under section 1. That is a decision for the Supreme Court to make. That is what I say.
Senator Beaudoin: Not only the Supreme Court. This committee is the Legal Committee.
Mr. Wappel: I understand.
Senator Beaudoin: We have heard from many experts. They all come to the conclusion that it cannot be justified.
Mr. Wappel: With great respect, this committee has heard other opinions.
Senator Beaudoin: I respect the contrary opinion, of course.
Mr. Wappel: This committee has heard other witnesses, who are experts, who have come and told you that laws are constitutional which have subsequently been struck down by the Supreme Court. No one knows what the Supreme Court will do. They can only give you their best guess as to what the Supreme Court will do.
Senator Beaudoin: But some of them have made very good guesses.
Mr. Wappel: That may be but, when we are dealing with a bill that has been passed, I would ask, if there are two possibilities, that you accept the possibility that would permit passage of the bill through both chambers and leave it to the Supreme Court to decide, on a proper fact situation, in a proper case, first, if it is indeed a breach; and, second, if it is, would section 1 save it? That is all I am suggesting.
Senator Moore: Mr. Wappel, I wish to commend you on the work you have done on this bill. I have some idea about the workload of an MP, and to take on this extra challenge is very commendable.
I wish to ask you two questions. First, I have looked at the list of witnesses who appeared before the Justice and Legal Affairs Committee in the House of Commons and I did not see any writers or writers' groups there. Do you know why?
Mr. Wappel: Only the chairman and the clerk would be able to answer that. It was my understanding that the way these things are done is that advertisements are put on the CPAC channel saying that the committee will be considering a particular bill at a particular time, and if you have an interest in appearing you contact the clerk of the committee at such and such an address. I do not know if that was the case.
I do know that between the time the bill passed second reading and the time that the committee considered the bill, at least six or eight months passed. It was not a case of the House of Commons, by sudden decision, passing it at second reading.
Senator Moore: I realize that. However, it is interesting that, on something that was controversial and of great interest, writers -- individually and as associated groups -- say they were not there, and most of the people who appeared before the committee in the other place were victims' groups.
Mr. Wappel: I should say that some of these groups did contact my office and I did send them material, including copies of the bill, but I do not know what happened beyond that.
That is precisely one of the fantastic things about this committee, because it gave those people an opportunity to put forward their concerns.
Senator Moore: You point out sections 12 and 13(3) of the Copyright Act as examples of situations where the copyright in a work is belonging to one other than the author.
In those situations, the author is usually an employee of the Crown in section 12 or an employee of an employer in section 13(3) and would be earning an income. Perhaps the reason for those sections is that the income paid is the consideration for the transfer of any copyright that might belong to an employee to an employer.
Under your proposed bill, we do not have that employer-employee consideration. To me, it is an expropriation. Do you wish to comment on that?
Mr. Wappel: Anyone, provided they do not run afoul of the Criminal Code, can write whatever they want. They can try to get published. Once you run afoul of the Criminal Code, which is a choice that you make, one of the consequences of that is what is stated in the Criminal Code. One of the things that would be stated in the Criminal Code as part of your sentence is that you would not be permitted to make money from selling the story of the crime for which you are convicted. It would be fair warning to everyone.
Senator Moore: Yes, by virtue of the fact that you committed the indictable offence.
Mr. Wappel: Correct.
The Chairman: Mr. Wappel, you have posed quite an interesting situation here, coming in with amendments to your own bill. I strongly suspect we will have to hear further witnesses again because this will have changed the aspect of the bill so completely.
I have one question on section 12 of the Copyright Act, where a work is or has been prepared or published by or under the direction or control of Her Majesty, which certainly these are under the control of Her Majesty, subject to any agreement with the author. Theoretically, in this case there would be no agreement with the authors. This clause only applies if there is a prior agreement with the author, and then the copyright goes to Her Majesty.
Mr. Wappel: If there is an agreement with the author, section 12 does not apply. If there is no agreement with the author, then section 12 does apply.
Senator Nolin: Does someone around this table on the committee want to move the amendments? The amendments are not in front of us. What we have now is the bill as it was tabled in the Senate.
Senator Lewis: As the sponsor in the Senate, I would move those amendments.
Mr. Wappel: Let me reiterate that I have suggested these amendments because I have read the transcripts and I have heard what people said. I still would ask you -- and I know this is a long shot, based on what I have said -- to consider the bill as it presently is, excluding section 1.
Senator Nolin: Even with that?
The Chairman: I would point out that the appropriate time to move amendments is when we are in clause-by-clause consideration.
I should like to ask about a hypothetical scenario. If this committee were to accept the amendments and if the Senate were to pass the amended bill, what then happens normally to a private member's bill amended by the Senate that goes back into the House of Commons? Does it drop back into the hamper with the rest of them to be drawn?
Mr. Wappel: As I understand this -- and I could research it and get back to you -- it comes back to the house at second reading and is then voted on. If it is passed by the house it is then passed, because the Senate has already passed it, and it becomes the law, subject to royal proclamation. I believe it would be dealt with fairly quickly at that point.
Senator Gigantès: Mr. Wappel, we are dealing with a totally different bill, but I have here the page which you kindly provided to us entitled "Bill C-220 as it would read if all suggested Wappel Amendments are accepted by the Committee". The proposed section 3 subsection 12.1(1) to the Copyright Act reads as follows:
Where a work is created, prepared or published by or in collaboration with a person who has been convicted of an indictable offence, and the work is substantially based on the indictable offence or the circumstances of its commission, any copyright in the work that would otherwise vest in the convicted person shall belong to Her Majesty and shall subsist for the time that the copyright would subsist if it belonged to the convicted person.
What happens here in the case of a co-author? I write books. I go and interview a criminal. On the basis of these interviews, I write, citing him every now and then, having taped him. I produce a book in which there are large chunks of the criminal describing how he committed the crime. I have written the book. What happens to my copyright?
Mr. Wappel: You were not convicted of an indictable offence.
Senator Gigantès: Suppose the criminal says, "I will let you do this. Go ahead and do it. You have the copyright." You are not stopping the description of those criminal acts.
Mr. Wappel: Well, remember the principle of the bill. The principle of the bill is to prevent the criminal from profiting from selling the story of the crime. If you, as a private person, wish to interview a criminal and write a book about it, my bill does not wish to stop that. That is another issue entirely. That is more censorship.
Senator Gigantès: This is a considerable change from the previous provision.
Mr. Wappel: There is only one change in that section. Look at the first page.
Senator Gigantès: Yes.
Mr. Wappel: Under the heading "Section 3", you see that I added the word "indictable" before the word "offence" in line 3. In lines 4 and 5, I deleted the words "under the Criminal Code" to the word "indictment".
The rest of it is exactly the same as it was before the first time it appeared before you. I have not changed anything, I have merely added the word "indictable" and taken out the words "under the Criminal Code that may be proceeded against by way of indictment." Everything else is the same as it was.
Senator Gigantès: The important change is what you dropped.
Mr. Wappel: Right. So as to make it indictable, as opposed to "may be proceeded with by indictment."
Senator Gigantès: Section 1.(c)(ii) in the original bill, lines 5 to 10, state:
...the person convicted of the offence or a member of his family or a person dependent on him, with whom the person convicted collaborated, receives or becomes entitled to receive the property, benefit or advantage as a result the authorship...
Mr. Wappel: You are reading from section 1.
Senator Gigantès: Yes. That is the major change. If I am a serial killer and my daughter interviews me and writes a book, she can do that and her copyright is not seized; is that it?
Mr. Wappel: Yes. The same thing would have been the case if the section that you just read was still there because the daughter interviewing the father is not collaborating with the father. Remember, I said the definition of "collaborate" is "work jointly with", not "interview".
If someone wishes to interview me for a book about the Liberal leadership in 1990, I can talk to them for hours and hours. They then write the book, but I have no copyright in that work. It is only if we work jointly on a book that I would have a copyright interest. There is a huge difference between being interviewed and providing information and collaborating or working jointly to form a particular work.
Senator Gigantès: With all due respect, I am a professional in this field and drawing this distinction is a difficult one.
Mr. Wappel: With all due respect, there was just a case with Artie Shaw. There was a Canadian producer of films who interviewed Artie Shaw, the famous band leader of the 1940s, and made a Canadian documentary out of that interview. Artie Shaw sued her because he wanted royalties from that particular movie since he was in it and he had been interviewed. He lost the case because he did not collaborate, he was merely interviewed. That was just last year in the Supreme Court of Ontario.
Senator Gigantès: It is such a moot point and such a difficult distinction that in my view it is a difficult bit of law. It is a burden to put upon the courts.
Mr. Wappel: This is what copyright courts do all the time. They consider tiny arguments like this, or how a particular shape of a beer bottle resembles another shape of a beer bottle or a label, or just how much a person collaborated with another person or did not collaborate. That is what these people are paid to do in the copyright courts. That is why this man makes a fortune, because he represents clients who argue these esoteric points.
Senator Beaudoin: For the purpose of the record, I wish to rectify one thing. You referred to a principle of common law. I will not intervene, because it is common law. In my own province of Quebec, we abolished many years ago what we call la mort civile. If a person is found guilty of a crime, under the previous laws applicable in Quebec the person was stripped of his goods, et cetera. Under the civil law system, this is what we call la mort civile. This was abolished for a simple reason: If you are guilty of a crime and if you are declared guilty of a crime, you receive a sentence as provided by the Criminal Code. This is your punishment. You lose your freedom.
However, if your father is dying and is leaving you $1 million, you may inherit that money from your family. You may receive goods. In other words, they do not expropriate your inheritance in order to punish you a second time. This is the system that we have. As far as I know, it is the same system in common law, but let us say that I do not talk about it.
Clearly, under the civil law you do not lose your goods, et cetera. That is why I have a problem with that part of your presentation, because it is like expropriating something from someone in order to punish them a second time. It is another fine.
This is what worries me in that bill. Of course you may amend the Copyright Act and the criminal law, but that is not where the problem lies. The problem is that the bill, as it is drafted and as far as I can see with your amendments, is still against fundamental principles of the division of powers in my opinion. Under the Charter of Rights, I think it is a restriction to freedom of religion.
Senator Moore: Freedom of speech.
Senator Beaudoin: For the purposes of the record, I wish to state that if we ever hear from other witnesses because some amendments are proposed and we call upon other experts to appear before us and are asked to decide whether the bill is legal or illegal with those amendments, I am quite prepared to do that. That is our duty as a committee.
La mort civile does not exist any more in many systems of law and we do not punish a person twice. The punishment is contained in the Criminal Code.
Mr. Wappel: First, I will address the division of powers. Mr. Jeff Richstone, Senior Counsel, Canadian Heritage, Department of Justice, told you that, "The amendment dealing with the Copyright Act would be pith and substance copyright legislation and, therefore, valid under a division of powers approach." He is the expert. You said that the experts have come and you must sometimes accept what the experts say. I ask you to accept that statement.
Senator Beaudoin: Some others said the contrary.
Mr. Wappel: That is what he said and he is from the Department of Justice.
This has nothing to do with la mort civile. I think it is the law of Quebec that if you take out an insurance policy on your business partner and 10 years later you run afoul of your business partner and kill him, the Civil Code will not allow you to collect on the insurance policy from what you did as a criminal. You killed someone; therefore, you cannot collect on a legal contract which was put into place years before the crime. There was nothing illegal about the contract. There was nothing improper about taking out an insurance policy. It was completely legal, yet you killed someone and you are not allowed to collect on something that was completely legal at the time you did it.
There is a provision here, which would be imposed at the time of sentence, which says that you would not be able to benefit from any book or any selling of the work if it has to do substantially with the crime for which you were convicted. Look at the limitations. You must be convicted, you must then produce a work which is substantially about the crime for which you were convicted.
People came here. They wanted to write about their experiences in prison. Well, no one was convicted of any experiences in prison. They could write about their experiences in prison. They could even write about their life story, including the crime, provided that the work was not substantially about the crime. This has nothing to do with la mort civile.
Senator Beaudoin: Your answer has nothing to do with la mort civile.
Mr. Wappel: In the Criminal Code, there are provisions whereby you would get a gaol term and be banned for life from possessing a firearm. Is that double punishment?
Senator Nolin: It is in the Criminal Code.
Mr. Wappel: Let us put this in the Criminal Code, then. That is the answer to the next person who makes the objection.
Senator Nolin: Yet we heard witnesses who said that it should be done properly.
Mr. Wappel: To say that because something is not in the Criminal Code it cannot be done is a circular argument. It is up to us to decide, on behalf of the Canadian people, what should be in the Criminal Code. The House of Commons has decided. They are asking you to agree with their decision.
Senator Moore: Mr. Wappel, you said that there are all these restrictions. One is that you cannot write about the crime.
Mr. Wappel: No. If I said that, I withdraw that statement. You can write about it but you cannot benefit from selling a work substantially based on the crime. The bill would not prevent anyone from producing a manuscript. The government could not come into the prison and seize the papers.
Senator Moore: I wish to return to Senator Gigantès' example with respect to Donald Marshall and Michael Harris. In view of what you said, I have some doubt as to whether or not those two men could write that book today if your law was in place.
Mr. Wappel: Why?
Senator Moore: Who would have the copyright?
Mr. Wappel: Mr. Harris had the copyright. He was not convicted of anything under the Criminal Code.
Senator Gigantès: That was the former part of the bill. He has removed that part.
Mr. Wappel: It is only removed if there was collaboration, which you said was a fine point under the law.
Senator Moore: If Donald Marshall and Michael Harris set about writing a book, they are collaborating. It is a joint effort to produce a manuscript, is it not?
Mr. Wappel: That is a question of fact.
Senator Moore: I am struggling with that one.
Mr. Wappel: That is a question of fact.
If Michael Harris sits down and interviews Mr. Marshall, Mr. Marshall cooperates and tells his story and then Michael Harris produces a book and submits it to a publisher, that is not collaboration. However, if they sit down and are working together on the various parts of the book; if Mr. Marshall makes certain corrections to it and says to Mr. Harris, "You cannot put this in this way, you must put it in that way" ; and if their names appear as co-authors, that is a different matter. That is a question of fact for the courts. They deal with that every day.
Senator Moore: Mr. Marshall might say, "Okay, Mr. Harris. Go in and interview Nolin. Go in and interview Moore. He knows about it." He is giving him direction. He is collaborating, is he not?
My concern is that if that book and other examples we have had were not published, the likelihood of those innocent people being exonerated and returned to freedom would likely not happen, perhaps, under what you are proposing. Can you respond to that? I have a real concern there.
Mr. Wappel: If section 1 is eliminated, then you do not get involved in this. However, if the bill is intact, then the intent of the section is to prevent money flowing to the convicted person. If the money remains in Harris' hands, at this point there is nothing stopping the publication of the book under the proceeds of crime. What we are trying to do is seize the money.
If the money does not go to the convicted person, then this particular section does not apply.
Senator Gigantès: In the new version, you say that the act is amended by adding the following after section 729:
729.1 Where a person is convicted of an indictable offence, there is deemed to be included in and be a part of the sentence an order of the court that the convicted person and any work related to the offence are subject to section 12.1 of the Copyright Act.
That is the book by Mr. Harris.
Mr. Wappel: If that were your interpretation, a clarification phrase could easily be put in there to say "and any work authored by the convicted person." That is the intent of the section.
Senator Gigantès: Co-authored?
Mr. Wappel: Co-authored, yes.
Senator Gigantès: Currently, a Vancouver journalist and I are co-authoring a book. There are times when she says, "I do not like this particular paragraph that you wrote. I have changed it this way." I reply, "I do not like that particular paragraph that you wrote and I have changed it that way." It is a miracle that two authors get along together, but we do.
Any of the lawyers working in the Senate would have a field day in court with this distinction between "collaboration" and "cooperation".
Senator Nolin: It is a matter of money, period.
Mr. Wappel: Mr. Macera can correct me if I am wrong, but over the centuries there has undoubtedly been a lot of case law built up over the meaning of "collaboration" and what evidence is necessary to establish collaboration. I am sure there have been many cases in copyright law where people have tried to pretend that they collaborated so that they could get part of the profits of a good book or a good movie or an excellent song. In other cases they did collaborate and they do get a chance to get those moneys.
You raised a good point on section 729.1. It should state, "the convicted person and any work created by a convicted person". The intent is to apply this law to the convicted person, not any innocent person who is collaborating with him.
Senator Gigantès: Does that apply to a work that is created fully or partly by a convicted person?
Mr. Wappel: The portion that flows to the convicted person is what is captured by this bill and the intent of this bill.
The portion that flows to the other person is that person's portion. That person has nothing to do with the Criminal Code or an indictable offence.
Senator Gigantès: I appreciate how flexible you are being on this, but how will you sort out which part flows to the convicted person?
Mr. Wappel: There is already a body of law under copyright law that would deal with that in a court on a specific fact situation with the evidence before the court, as it is done every day.
Senator Gigantès: If we are to hear further witnesses, may we ask Mr. Macera to come here and enlighten us on this business of cutting hairs into four?
The Chairman: Thank you, again, for appearing before us with your cohorts. We will probably see you again because you have opened this up for further discussion with this committee.
Mr. Wappel: Thank you for the fair and open consideration that you have given this bill.
The committee adjourned.