Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 24 - Evidence
OTTAWA, Thursday, April 30, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-220, to amend the Criminal Code and the Copyright Act (profit from authorship respecting a crime), met this day at 10:55 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: I do not know about the other members of the committee, but I have received a great deal of correspondence on this particular matter, and it has been almost 100 per cent in support of your bill. The letters come from across Canada, and I probably have 100 of them. Aside from letters signed by both husband and wife, the only identifiable group from which the letters come is the Catholic Women's League. I thought that that should go on the record.
Mr. Wappel: I, of course, have received copies of much of this correspondence. I have also received calls, and, over the years, I have certainly received a great deal of support on this bill. As you aware, thousands of people have signed petitions, which have been presented to Parliament, calling for this bill to be passed.
When I was last here in March, I said that I was ready to assist both you and your counsel in working on this bill. I meant that, but I do wish to say that it is a little difficult to help, or to offer comment, when I am not provided with information.
At 6:25 p.m. yesterday I learned through my assistant that Mr. Mosley, from the Department of Justice had responded to my proposed amendments in a letter dated April 2, 1998. I was not aware of that letter until yesterday, and I still do not have a copy of it, so there is possible way that I can offer any comments on what Mr. Mosley had to say. I do apologize for that, but I cannot do more than that. I did want you to know that I am not ignoring Mr. Mosely's comments. I would have been only too delighted to have the opportunity to study his comments, and to offer my own in return.
The Chairman: I apologize for that, Mr. Wappel.
Mr. Wappel: If something should come up in further consideration of the bill, and your counsel or clerks wish to contact me in that regard, I stand ready at any time.
It is my understanding that there was some discussion about the Berne Convention. Clearly, there is a division of opinion. The person who was here yesterday represented an organization which is not a legal organization, but rather an organization akin to PEN. Not surprisingly, this organization's view, as is PEN'S, is that this bill is contrary to Berne. I have produced legal authorities to indicate that it is not, and I had copyright lawyer who was here and prepared to testify that it was not. I state and restate my view that my bill is not contrary to Berne.
If it were contrary to Berne, however, who would object? Which country would object if Canada does not wish criminals to profit from writing about the crimes for which they were convicted?
Can the principle of this bill, which is to prevent criminals from profiting from the crimes for which they were convicted, be realized without using the Copyright Act?
In my view, this is why the Uniform Law Commission is moving at such a glacial pace; it is having trouble recognizing that we live in a federal system, and that there are 10 provinces and two territories. If there is a law in Ontario, and if someone is incarcerated in Kingston Penitentiary, that person is covered by the law. If he or she is subsequently transferred to the penitentiary in Prince Albert, then, because he or she is no longer in Ontario, he or she will no longer be covered by the law.
Even if all 10 provinces and two territories were to pass a uniform law, it would not prevent any criminal from going, for example, to New York, London, or Berlin. There, that person could make any deal he or she liked, put the money in a foreign bank account, and then use those funds as he or she wished.
The copyright provision of the bill is very important. If the story is substantially based on the crime for which an individual was convicted, this bill will prevent him or her from profiting by telling the story. I must repeat that the story must be substantially based upon the crime for which the person was convicted.
I would like to indicate that my amendment, which would require the Crown to grant a licence to publish, would not lead to the suppression of any work. Many objections have been raised on that score. It was my impression that the lawyer from the copyright division of the Justice Department had an incorrect reading of section 12 of the Copyright Act. The witness said that, if a person were hired to produce a work, that work would then belong to the Crown. That is not what section 12 says at all. Section 12 says that if you are hired by the Crown and you produce a work, that work belongs to Her Majesty. There is a major difference between those two statements.
Many have said that the Justice Department has indicated that this bill is unconstitutional. In my remarks, I have tried to indicate that that is a decision for the Supreme Court of Canada. I believe that the witnesses from Victims of Violence and from the Canadian Resource Centre for Victims of Crime also indicated that. No one can really predict what the Supreme Court is or is not going to do.
I refer you to an article in The Globe and Mail of April 18, 1998. The headline, admittedly written by the editor, reads "Legal experts slam top court's Charter decisions." The subheadline is, "Rights rulings called contradictory, chaotic." It is interesting to note who is being quoted in this article. One of the people quoted in this article is Robert Hubbard, who is talking about the decisions of the Supreme Court of Canada. Robert Hubbard is a lawyer for the Department of Justice. He says:
"Every time I go to the Supreme Court of Canada, I haven't a clue what will happen... The only trend I have seen is no trend."
Mr. Hubbard said that, on the eve of an appeal, he often finds himself unable to decide why a case is even being heard -- let alone what the court is likely to decide. "Flipping a coin is not a bad way to proceed: At least you have a 50 per-cent chance of winning."
This is a Justice Department lawyer talking about trends of Charter cases in the Supreme Court of Canada.
In concluding his speech to law professors, Mr. Hubbard said:
"Where are we going? Don't know. Where have we been? Not sure."
"Where are we now?" piped up a lawyer in the audience.
"Don't know," Mr. Hubbard said dryly.
Why would this be relevant in this case? Osgoode Hall law professor Patrick Monahan has tracked the decisions of the Supreme Court of Canada, and he has produced statistics which, in his mind, shed light on trends in the court, as well as on marked differences in the approach of individual judges to Charter litigation.
One of the trends that Mr. Monahan found, interestingly enough, is that litigants who claim a violation of one of the criminal rights listed in the Charter, such as the right to counsel or liberty, are far more likely to succeed than those whose challenge involves equality rights, or a fundamental freedom such as free speech or expression. That is, those who claim the violation of a criminal right are far more likely to succeed that those who claim the breach of a fundamental right such as freedom of speech.
I am not suggesting that this is definitive, but I am suggesting that no one can predict what the Supreme Court of Canada will decide. For anyone from the Justice Department to come in here and indicate that the Supreme Court will find this particular statute unconstitutional is presumptuous.
There has been some discussion about the Son of Sam law. That law, as it was originally drafted, was so broad that no one in this room, including myself, would have supported it. As I understand it, it even included things for which people had not been charged, which is ridiculous. That is why the United States Supreme Court struck it down. It is obvious that the Supreme Court did not have much difficulty in finding it to be overly broad.
The principle was not rejected; it was the overly-broad nature of the Son of Sam law. The legislature did have to act quickly, because Berkowitz, the Son of Sam, was just about to publish. In order to stop the publication of the book, something was quickly cobbled together and passed.
Some of the witnesses have talked about Guy Paul Morin, and the book that was written. I believe it is entitled Redrum the Innocent. The day after my last appearance before this committee, there was a very large article in The Toronto Star, along with a picture of myself and one of Mr. Morin. The gist of the headline was that Mr. Morin believed that he would still be in jail if this bill were in effect.
Based on advice about my bill that he had received from the Writers' Union of Canada, Mr. Morin proceeded to give the reasons for his opinion. Someone was bothered by the fact that it had been said that Mr. Morin had collaborated with the author. The author is Kirk Makin, and he called me that same day <#0107> he was very angry about it -- to say that he had not collaborated with Guy Paul Morin on that book. The next day, there was a very tiny correction on page 2, indicating that Mr. Morin did not, in fact, collaborate with Mr. Makin.
Mr. Morin did not collaborate with Mr. Makin. Therefore, my bill would have had absolutely no effect whatsoever on that book. The entire premise of the article was wrong, yet the size of the correction was minuscule in comparison to the size of the article.
I asked Mr. Makin to write to this committee to indicate that he did not collaborate with Mr. Morin, and that the book was written of his own volition. I do not know if he did so, but I wished to advise you of my conversation with him, and of the fact that a correction was issued the following day in The Toronto Star.
I remind the members of this committee that all of my points are contained in the evidence that I gave in October and in March. I have provided copies of those speeches to you, and I can only hope that you will review them, and that they will be given serious consideration as you consider this bill.
The Chairman: To explain why some of this information has not reached you, I should point out that the package of letters we received, one of them dated April 2, was not circulated to members of the committee until Tuesday of this week, because of translation problems. The clerk cannot give such things out until they have been circulated amongst the members of the committee.
Senator Gigantès: You seem to be saying that, because we do not know what the Supreme Court might say about your bill, we do not have an obligation to consider whether it, in our view, is flawed or unconstitutional.
Mr. Wappel: I am not suggesting that at all. However, you must take everything into consideration in your deliberations -- including any trends, or lack thereof, in the Supreme Court of Canada.
Senator Gigantès: According to that much-quoted Justice official, it is like flipping a coin.
We have distinct duties, however. Our job is to come back to the Senate with one of three reports. We do not have any other choice. We could say, "Accept the bill," "Accept it as amended," or, "We, the committee, suggest that the Senate not consider this." Any of these three decisions would indicate that we are passing an opinion, passing judgment, on whether we think this bill is good law that will stand up to scrutiny.
Mr. Wappel: I do not disagree.
Senator Gigantès: What the Supreme Court does afterwards is out of our hands. We cannot hide behind a trend of the Supreme Court. You must convince us -- never mind the Supreme Court.
Mr. Wappel: If you defeat the bill, the Supreme Court will never have an opportunity to give its opinion. Such an action would prevent the Supreme Court from ever looking at this issue.
Senator Gigantès: Are you suggesting that, even if this committee thinks that this bill is either flawed or unconstitutional, it should still recommend that it be passed? Are we to send what we consider to be bad laws into the courts and, ultimately, to the Supreme Court?
Mr. Wappel: I am suggesting what I said at my appearance in March. If there are two reasonable arguments, one for and one against the constitutionality of the bill, in view of the fact that this matter has been passed by the other place, I urge you to accept the argument in favour of constitutionality.
Senator Gigantès: The Senate has defeated many other bills which were passed by the other place. On many of those occasions, I personally thought that the Senate had acted reasonably.
Mr. Wappel: As I pointed out, there have only been three government bills defeated in the Senate, and I named those in the last appearance.
Senator Gigantès: We did defeat them.
Mr. Wappel: Only three, and it was over a very long period of time.
Senator Gigantès: I will leave the question of constitutionality to those of my colleagues who are lawyers. I am sure that they will argue it with you.
I personally do not feel that it is part of my duty as a member of this committee to decide to pass the bill, and then see what the Supreme Court will say. My duty is to answer one of the three questions: Do we recommend that the bill be passed as it stands, do we recommend that it be amended, or do we recommend that the Senate not consider this bill? Those are the only things that we can do. We have no other authority. We must make up our minds on the value of the bill. Our minds, and not the Supreme Court's mind.
Mr. Wappel: I agree with you. What the Supreme Court may or may not do is a tangential issue. Every time that I have been here, however, I have been told that the Supreme Court will defeat this bill. I do not agree with that position.
Senator Beaudoin: We were carefully studying the question of freedom of expression the last time that you appeared. Since that time, you have amended your bill. The experts who came before us then have considered your amendments, and almost all of them remain of the same opinion about the bill. In my mind, that is certainly something to be taken into account.
In some cases we can say with certainty that that the Supreme Court will rule something unconstitutional, although I do agree that it may be difficult to foresee exactly what the Supreme Court will do in some cases. Since 1938, however, the Supreme Court has always taken a very generous view with respect to freedom of expression. Jurists who have studied that have come to the same conclusion. There is no certainty, of course. Many cases are decided by a slim majority, although in the field of freedom of expression the tendency is always in the same direction. It is generously considered and applied, because that is the basis of our democratic system.
After having considered your amendments, those who came before us yesterday came to the same conclusion. We heard moving testimony from two witnesses, and we asked them how Bill C-220 would help the victims. They said that they were not interested in money, and I respect that. Even if this bill is accepted as it is with the amendments, how will it help the victims?
Olson, Bernardo, and others will lose their copyright proceeds, but they still may still do videos, speak, or go on the Internet. You may tell me that this is better than nothing. The fact is that it raises a few problems, however.
The expropriation of the copyright is entirely federal, but some lawyers will say that it comes under property and civil rights. Freedom of expression is obviously involved here. Is this bill justified in a free and democratic society? I am not convinced that it is. The whole Charter debate is encapsulated in these arguments.
I would congratulate anyone who offered to take care of the victims. This bill does not do that, however. Further, there is a problem about whether this is federal or provincial jurisdiction. Even supposing that we have the power to draft it, this bill does not accomplish that objective. We are legislating for two or three persons, and we are violating a fundamental freedom.
Yesterday, I asked the lawyers if the bill goes against the Berne Convention. They have studied it, and they said that it did. You come to a different conclusion. You and I are both lawyers, and we may have to agree to disagree on this.
What do we do, however? In case of doubt, or if I am convinced that the Charter is being violated, I am very reluctant to vote in favour of accepting this bill, thereby leaving it to the Supreme Court. As legislators, we should apply the law as we see the law. If, as a legislative house, we are convinced that this bill violates the division of powers, or the freedom of expression, I feel that we should be against it.
I do not know what my colleagues in the Senate will do. We will obviously have a debate on this. It is difficult, however, to advise that they vote for a bill, if we are convinced that the freedom of expression is violated.
Mr. Wappel: My amendment requires a licence for publication from the Crown. There is no suppression of freedom of expression. Provided that the criminal does not get the money, the Crown must grant a licence.
Senator Beaudoin: You are saying that there is no violation of freedom of expression because the copyright is vested in the Crown in right of Canada, and it gives a licence?
Mr. Wappel: Correct.
Senator Beaudoin: Obviously the criminal has written the book.
Mr. Wappel: Yes, so where is the abridgement of freedom of expression? The criminal has written the book and found a publisher, the Crown has granted a licence to publish it, and the book gets published. The effect of the bill is that the criminal does not get the money. Where is the violation of freedom of expression?
Senator Beaudoin: It is clear that the criminal does not have the money, but who has the copyright?
Mr. Wappel: What does that have to do with freedom of expression?
Senator Beaudoin: Freedom of expression is inherent to a copyright.
Mr. Wappel: No. If the criminal wishes to produce a video, or write a book, that is the expression.
Senator Beaudoin: Your bill does not stop that.
Mr. Wappel: I agree with you completely. It does not stop that. That is why there is no violation of freedom of expression.
Senator Beaudoin: No. I meant that your bill does not stop a video.
Mr. Wappel: It does not stop the production of anything. It only stops the criminal from getting the money for doing it.
Senator Beaudoin: Is the hope that, since criminals will not have the proceeds of the copyright, they will not write?
Mr. Wappel: On the contrary. I would suggest that people do not write because they will make money. They write for a variety of reasons, including to purge guilt, or as an expression of a learning experience. People do not sit down and decide that, since they committed a murder, they will write about it in order to make $1 million. If they do decide that, however, they should not be rewarded for it.
Senator Beaudoin: If I understand your bill correctly, you wish to tell criminals that, should they publish books, they will not be paid for doing so.
Mr. Wappel: Correct.
Senator Beaudoin: You are constructing a mechanism whereby the copyright is vested in the Crown.
Mr. Wappel: Correct.
Senator Beaudoin: The Crown may do what it wants with that, of course.
Mr. Wappel: With one exception. It must grant a licence if it is satisfied that the criminal will not get the money.
Senator Beaudoin: It will be obliged to grant a licence if the criminal does not violate the Criminal Code, for example.
Mr. Wappel: No, it will be obliged to grant a licence to publish any work written by a criminal, so long as the Crown is satisfied by way of statutory declaration that the criminal will not receive any money for the work.
The Chairman: To clarify this, I will read the portion of Mr. Wappel's amendment that speaks to this.
Her Majesty shall grant a royalty free license to any person who desires to publish any work which belongs to Her Majesty pursuant to...
This bill.
Mr. Wappel: It is a mandatory provision.
The Chairman: It says "shall grant."
Mr. Wappel: In my respectful submission, there can be no argument of suppression of freedom of speech.
Senator Beaudoin: Why is it necessary for the author to obtain a licence? Is that in itself not against freedom of expression?
Mr. Wappel: No. Freedom of expression is the right to express oneself. The author has the right to prepare a manuscript and, by amendment, the author will be able to go to a publisher. If the publisher wishes to publish it, the Crown must grant a licence to publish, provided that the Crown is satisfied that the criminal will not make any money.
Senator Beaudoin: You say that the Crown "shall," but what happens if the Crown does not?
Mr. Wappel: The Crown can only refuse to grant a licence if it is not satisfied that the criminal will not get the money. If the publisher or the criminal feels strongly about that rejection, it is only a matter of going to court and demonstrating that the criminal will not get any money. In that case, the Crown will then grant the license.
The criticism has been over a perceived suppression in the original draft of the bill of the freedom to say what one wishes to say. With the amendment, a reasonable argument that there will be suppression of freedom of speech, or of freedom of expression, cannot be made.
Senator, you said that it is not possible to expropriate copyright, but the Crown already does so. In clause 12, copyright is expropriated, but, under certain circumstances, that is in our law right now. We can change our law and expropriate copyright under other circumstances. That is up to us as legislators.
You asked me what the passage of this bill would accomplish. I ask you, what happens if you defeat this bill? What is the law of Canada?
Under the law of Canada, a serial murderer could write a book detailing all the circumstances of his or her murders, could find a publisher here or abroad, could prepare and sell a video, and could make money by describing the heinous acts for which he or she was convicted. That is the law as it stands today. Nothing in our law prevents a criminal from making money by recounting the acts for which he or she was convicted.
Currently, someone could sue the criminal for the money that he or she earned from a book, but that is not the answer. Provided that the criminal can find a publisher, he or she can earn money simply by recounting the crimes for which he or she was convicted. That is the state of the law, and that is what will happen in Canada if this bill is defeated.
What are we trying to accomplish? I would suggest that we are trying to accomplish that a criminal should not profit from crime, period.
Senator Beaudoin: There are two things here. If a person commits a murder, that person is judged and sentenced to a penalty in jail. That person loses his or her liberty, and that is the law of the land. When that individual is in jail, it may be claimed that he or she is not guilty for any number of reasons. This person decides to writes about the weaknesses in the trial, and let us suppose that this person is right. It might happen; we have judicial errors, and we do not, unfortunately, live in a perfect world. That person would fall under this bill.
That same person might also be repentant, and want to write a book in order to tell young people not to do the things that he or she had done. Would you block the writing of such a book?
Mr. Wappel: Absolutely not. I would block the receipt of money. Repentance does not mean that you should be entitled to make money from talking about the crime for which you have repented. Nothing in the bill prevents people from writing.
Senator Beaudoin: If you are not guilty and you lose the right to your money, is that fair?
Mr. Wappel: If you are not guilty, you are not covered by this law. This law only covers convicted people.
Senator Beaudoin: Our hypothetical man has been sentenced in error, unfortunately. It has happened.
Mr. Wappel: It has happened.
Senator Beaudoin: This man elects to write his story in order to prove his innocence, and he succeeds. He comes under your bill, however.
Mr. Wappel: If he has been convicted, he comes under my bill. If he succeeds in showing that he was innocent, he no longer comes under my bill. He can then demand an accounting, and get the money from whoever published his writings.
Senator Beaudoin: My difficulty is always the same -- the freedom of expression. I know how monstrous the crime can be in some cases. I know that, and I have the greatest sympathy for the people who appeared before us yesterday. That is why I said that I would strongly favour legislation to help the victims, but Mr. Rosenfeldt told me they do not need money, nor do they want it. I respect that.
Mr. Wappel: He also told you that they do not want criminals to make money from telling the stories of the crimes for which they were convicted.
Senator Beaudoin: That is right.
Mr. Wappel: Let us remember that there are two sides to the coin.
Senator Beaudoin: It is not the same coin -- there are two coins.
Your intentions are certainly very good. You want to succeed, and you want to help. As a jurist, however, I must ask whether, in the era of the Charter of Rights, this bill is respectful of it. I may be wrong, but my first reaction is that this restriction of freedom of expression cannot be justified in a free and democratic society.
Mr. Wappel: What suppression of freedom of expression? How does this bill suppress freedom of expression?
Senator Beaudoin: You go directly against the principle of the copyright.
Mr. Wappel: How does that prevent expression?
Senator Beaudoin: Why do you want to allow writing, but preclude the payment of money?
Mr. Wappel: As a matter of public policy, our society says that a criminal should not profit from the crime for which he or she was convicted. That includes writing about it.
Senator Beaudoin: Is writing a crime?
Mr. Wappel: It depends. You cannot write child pornography.
Senator Beaudoin: That is in the Criminal Code.
Mr. Wappel: We could put this in the Criminal Code. That is a circuitous argument. You are saying that, because this is not in the Criminal Code, we cannot do it.
Senator Beaudoin: I understand your intentions, and I applaud them. The mechanism that you are using is not respectful of our system of law, however.
Mr. Wappel: We will have to agree to disagree.
Senator Gigantès: Yesterday Mr. Rosenfeldt, whose child was killed by Clifford Olson, told us that he does not care about the money. He wants people like Clifford Olson to be unable to publish. That is what he told us.
Mr. Wappel: That is right. He said that.
Senator Gigantès: He told us that he wanted Mr. Olson to be precluded from talking and publishing, and thereby keeping this nightmare alive for him.
The bill only serves to make it even more certain that a book will be published. You are giving a publisher twice the amount of money that he or she would normally make on a run of 15,000 books. On a run of 15,000 books, 40 per cent goes to the wholesaler, 40 per cent to the bookseller, and the remainder is divided equally between the author and the publisher. Under your bill, the publisher would get 20 per cent, instead of 10 per cent. It becomes a more lucrative proposition for the publisher, and Mr. Rosenfeldt could be haunted by a book describing the torture of his son. He told us that he wanted such material to be neither published nor distributed, and that he did not want Clifford Olson to be able to talk about what he did to his son. Your bill goes contrary to that notion.
In order to cure the freedom of expression arguments, you have gone too far the other way. You will actually encourage books by monstrous criminals because the Crown "shall" grant a licence, as opposed to "may."
Mr. Wappel: That is absolutely not true.
Senator Gigantès: These monstrous criminals can say anything that they like, and describe their crimes. Under your scheme, it is also more profitable for a publisher to publish this book, because there will be no need to pay royalties to the author. Mr. Rosenfeldt may be subjected to having the torture of his son produced in many thousands of copies.
Mr. Wappel: You are absolutely wrong, senator. Without this law, the criminal can publish freely, and bank the profits.
The Chairman: Exceptions to that are possible under obscenity laws.
Mr. Wappel: Yes, and under hate crimes.
The Chairman: Any publication whose dominant characteristic is the undue exploitation of sex, or sex and crime, horror, cruelty, or violence, shall be deemed to be obscene.
Mr. Wappel: This shows that there are limits to freedom of expression in our country.
Senator Gigantès said that there be nothing for the victims. Yesterday afternoon, in this committee, Mr. Rosenfeldt said:
Victims do not want anything. The last thing we want is money produced by a criminal. Believe me, that is true.
Mr. Sullivan said:
The families do not want the money. They want to make sure that Olson does not profit from his actions again.
Why do you not quote that, senator?
Senator Gigantès: My colleagues will back me up when I say that Mr. Rosenfeldt said to us that he does not want Olson to be able to write, speak, or express anything about the murder of his son. You agree with him, but your bill makes it more likely that someone like Olson will do just that.
Mr. Wappel: He may feel that these people should not be able to write about these things, but we do have a Charter, and there is a balancing of interests. There is a difference between prohibiting someone from writing, and permitting that person to write, but precluding any receipt of the profits. There is a huge difference.
Senator Gigantès: You double the profit to a publisher, and you make it more profitable to publish Mr. Olson.
Senator Grafstein: We should thank Mr. Wappel for raising this issue. It compels us to renew or review what the Charter means, and to discuss what is in the national interest, and what is in the private interest. A complex series of issues has been raised here.
There is a slight paradox in your solution, in that it would force Her Majesty to grant a royalty-free license to a convicted person. There is an inherent irony in compelling Her Majesty to give a licence to a felon. Sometimes the law is considered by many to be an ass but this, in effect, is something beyond that. Does it not bring Her Majesty, the Crown, into disrepute? I make that only as a comment.
The thing that intrigues me is the question of how to redress this wrong. How do we redress this invasion of victim's rights? You have presented a model. No one questions that a victim's rights have been invaded, and that the victims' parents, family, and friends have to replay this invasion of privacy over and over again.
Another model of legislation might be a method whereby the victim could bring a criminal injunction against a criminal who would repeat the offence. I offer that only as a suggestion. You have compelled us to look at this question, however. How do we regress the egregiousness of what you suggest?
We must address this bill. I must admit that it gives me a lot of trouble. Determining whether the literary freedom of expression is consonant with the crime is a subjective analysis. Who makes that subjective analysis? Does the court sit down and read the novel or watch the documentary, and then make a determination?
Let me give you this long list of paradoxes. Each one of these people committed a serious crime: Lorca, the poet; Gramsci, the writer; Mandela; Gandhi; Nehru; Shcharansky; the poets Mandelstam, Akhmatova, and Brodsky; the Greek poet Cavafy; Claude Ryan, a member of the legislature; and Alfred Dreyfus.
Each was convicted of a serious crime against the state. Each was imprisoned, and each wrote about the crime. In fact, Nehru said that he learned more in prison than he learned outside. He learned about non-violence in prison in a better way than he did outside.
How do we deal with this? Under your bill, each of these books would have been caught up in it. Émile Zola wrote the great book J'Accuse, which changed the European perception of rights and liberties, and of human rights. He was accused of a very serious offence against the state -- treason -- and convicted of it. Cavafy, I believe -- and Senator Gigantès can correct me if I am wrong -- was a poet who was a homosexual. All his poems are really quite brilliant but explicit expressions of his homosexuality.
We agree that there is a deep problem, which you have raised. To have a magistrate or a judge sit down and determine whether this poem or artistic expression is, in fact, a repetition of the crime, however, does not solve what we all consider to be an egregious problem. How do we deal with this question?
In the minds of some, obscenity should not even be on the airwaves. In the minds of others, the nature of obscenity is the very thing that changes us, and causes the human spirit to progress. These are two sides of exactly the same coin. Some will say that a certain work is obscene, and others will say that it is a work of art. We have that conflict not far from here, at the National Art Gallery. Who will determine what is art, and what is obscene?
Perhaps the model should not involve putting the rights into the hands of the criminal law, nor into the hands of the Crown. Perhaps the rights should be put back into the hands of the victims, thereby allowing them to pursue their rights for compensation and for criminal injunction. This would not intervene with any of the principles that we are discussing.
I believe that there is an alternative model which could solve your problem. You have touched on the essence of the Charter of Rights, for which we have fought, and because of that, there is deep concern here. How do we back off of that?
The opinions which we have received are clear cut. For those of us who are lawyers, the opinions are clear, and that is more disturbing because we want to help solve the deep social problem that you have raised.
Mr. Wappel: You asked whether the court would read the novel or watch the video, and the answer is yes. That is exactly what it does when it considers material that is alleged to be obscene under the Criminal Code. Under the Criminal Code, the court then determines whether the material is, in fact, obscene.
You mentioned community standards. They are certainly considered, and, in the copyright court, the court would look at the work. On the balance of probabilities, the court would determine whether or not the work was substantially based on the crime for which the person had been convicted.
It is an open court, and everyone has an opportunity to be there. If the court's opinion was that the work was substantially based on the crime, it would be caught by this law. If it were that it was not substantially based on the crime, then it would not be caught.
The answer is yes. A court would read the novel. It would be done in open court, not in some stark chamber.
You mentioned a number of writers. As far as I know, only one of them was Canadian. This bill applies only to people who are convicted of an indictable offence in Canada.
This bill is not a victims' rights bill, and I never presented it as such. This bill is about society's rights.
Senator Grafstein: Another name I should have mentioned is Riel. In the next few weeks we will celebrate the heroism of Riel, but, remember -- he was convicted, he was imprisoned, and he wrote about it.
Mr. Wappel: History changes things. Fifty years after we are dead, people who have been convicted of crimes might be rehabilitated by revisionist historians. I cannot worry about that. I have to deal with the realities of today.
This bill involves society's rights. If we accept the principle that criminals should not profit from telling the stories of the crimes for which they were convicted, then that is what this bill is about. You said that the people would consider the law to be an ass. I suggest the people will consider all of us to be asses if we allow a criminal to earn money from a story, thereby profiting from the crime for which he or she was convicted.
You have received letters about this bill, and it makes common sense. You do not want people who have been convicted of crimes to be able to make money by telling the stories of their crimes. If that principle is unacceptable, then there is no place we can go. If that principle is acceptable, then we deal with the bill.
At one time, this bill was guaranteed to go down in flames, as far as I could see, because of the freedom of expression argument. Consequently, I tried to come up with a way to deal with it.
I get the feeling -- it may just be my paranoia -- that this bill is constantly being examined on the basis of why it should not pass, instead of being examined on the basis of how we could pass it. It is just the way people are looking at it. We do not want criminals to profit from their crimes by telling the stories of their crimes, plain and simple. This is not to stop them from telling the stories. We live in a real world, and we have a Charter.
Victims might want to stop the criminal from talking about the crimes, or from going on a radio show, but that is not realistic under the Charter. The realistic view is already a part of the common law. You do not allow criminals to profit, for example, from a life insurance policy on someone whom they have killed.
You asked why we would not just let the victims sue. Senator, you were not here when Mr. Rosenfeldt appeared the first time. He told us that he lost his entire family savings suing Olson. Why victimize the victims all over again by making them go to court and use their own money to chase criminals who may have spent the money by the time a judgment is issued?
Senator Grafstein: My suggestion is twofold. First, the victims should be given property and civil rights, and that includes a dead victim as well, because that is a difficult problem. Second, there could be a criminal right in terms of a criminal injunction brought by the victims.
Mr. Wappel: The victims would have to pay for that.
Senator Grafstein: No, the state would.
Mr. Wappel: That is another approach that could be taken in conjunction with this. How does that jibe with freedom of expression?
Senator Grafstein: It moves it into the obscenity class, which is an acceptable exemption. There is no unrestricted freedom of expression. The classic expression of Oliver Wendell Holmes is that you are not free in a darkened theatre to shout fire, when fire does not exist. There are some restrictions, and obscenity is one of them. Our laws are more restrictive in terms of freedom of expression than are those of the United States.
Mr. Wappel: In the United States, however, 42 states, as well as the District of Columbia, have laws to seize criminals' profits. These statutes are similar to my bill, except that they do not use copyright, and they are often similar to the Ontario legislation, as well.
You mentioned the United States. I do not mention the U.S. unless someone else brings it up. You say that the laws in the United States are less restrictive, but 42 states have legislation which seizes the profits of works which criminals write, produce, or create about the crimes for which they were convicted.
We do not have such a law here. In Canada, a criminal can write anything that she or he wants. That is not the case in 42 of the 50 American states, nor is it the case in the District of Columbia. I would argue that this country, for better or worse, is "freer" at the present time.
Senator Moore: Let us move away from the heinous crime example. What would the situation be if someone who was convicted of computer fraud were to write a book explaining how he or she did it, thereby allowing companies to protect themselves in the future? If the writer were not to receive any proceeds from the sale of the book, that knowledge would not be available to companies. What about that situation?
Mr. Wappel: You are assuming, Senator Moore, that people do not write unless there is a profit motive. I do not accept that. The person might be penitent.
Senator Moore: I am not assuming that at all. I am not making any assumptions.
Mr. Wappel: You implied that, if the author were unable to make money, the book would not be written. I dispute that premise. People do not "create" because they will make money. They create because they want to create. Very few people get published, as any publisher will tell you. Lots of people write poetry, books, and manuscripts. Lots of people produce amateur videos. Very few people ever get their work published. They do it because they want to do it.
Senator Gigantès: I do not write unless I am given an advance.
Senator Grafstein: Canada has the highest per capita proportion of published poets in the world, and they are the least read. We do publish a lot of poets, but the problem is that people do not read them.
Mr. Wappel: I will return to your example of a book about computer fraud. The person would be able to produce the book under this bill. He or she would simply not be able to make any money from the sale of the book. There is nothing to stop the production of the book.
You asked about serious crimes. My response is that we are talking about indictable offences. Society views fraud as a serious offence, because a person convicted of it must serve time in a penitentiary. Any sentence of more than 2 years must be served in a federal penitentiary, and society views any crime which merits such a sentence as a serious one.
Senator Gigantès: Mr. Wappel, we are appalled by the notion that a man such as Clifford Olson might make money from writing about his crimes. On that, we are with you 100 per cent. Yesterday Mr. Rosenfeldt told us that he did not want to read or hear about this any more, and we are harrowed by his statements.
Senator Pépin: He told us that he did not want his daughter to see this on television.
Senator Gigantès: These are objectives with which we agree. You will stop Olson or another similar monster from making money, but you will not stop him from writing.
Mr. Wappel: That is correct.
Senator Gigantès: I suggest to you that you might even make the publication of his story more certain, owing to the fact that you double the publisher's profit. That is, the publisher does not have to pay 10 per cent to the author -- the publisher keeps that 10 per cent.
I am an author, and I know the economics of publishing a book. If a publisher publishes a book royalty free, after paying the wholesaler and retailer twice as much money goes to the publisher than would if the author had to be paid a royalty. These are the economics of book publishing, and I know them well. I am writing my thirteenth book, and I always write with an advance in hand, or else I do not write.
I am saying to you that you do not meet the second objective.
Mr. Wappel: In this country, you cannot meet the second objective. You cannot stop self-expression. Senator Beaudoin just spent 15 minutes telling me that, and I agree with him.
Senator Gigantès: Senator Beaudoin has previously pointed out that this is a provincial issue. Property rights are a provincial issue.
Mr. Wappel: Mr. Robertson, the gentleman from the copyright section of the Justice Department, gave you definite evidence that this is copyright legislation, and therefore within the federal jurisdiction.
Senator Beaudoin: As you pointed out, Mr. Wappel, some lawyers will say that the copyright in section 91 is big enough to go as far as you do. Others, however, will say that property and civil rights are being encroached upon, because you are expropriating the proceeds of a copyright. It is debatable.
Mr. Wappel: When the Justice Department produces an argument that is against my bill, you find it favourable, and when the Justice department produces an argument that is favourable to my bill, you find it unfavourable. That is unfair, and I find it disconcerting.
Senator Beaudoin: I listened very carefully to what Mr. Mosley and the expert on copyright said. I am still convinced that your bill violates the Berne Convention. I may be wrong, but that is what I think.
When you say the Crown "shall" give a licence, it is a restriction to the freedom of expression. Why do we have such a mechanism?
Crime victims have said that they are not interested in money; they want to stop that monstrous killer from writing. Your response, however, is to say that that is not the purpose of the bill. The purpose of the bill is to allow the story to be written, but to stop the author from taking the proceeds.
Senator Moore: You may write and be published.
Senator Beaudoin: You referred to the insurance policy. I have no problem with that. Suppose a person in jail has an inheritance of $1 million, however. Could we stop that? Succession and the civil law are provincial matters. A person is punished for a crime, and loses his or her liberty. That is our system. You go one step further, however and say that that person will not make money. If that person were to receive money from his or her parents, would you stop that as well?
Mr. Wappel: Allow me to read you a portion of Mr. Rosenfeldt's evidence. He says:
We are looking for something to come out of this committee. If there have to be more amendments to the bill, so be it, but something that stops criminals from profiting from the death of our loved ones is what we want.
We cannot stop criminals from writing. If Olson wants to put his memoirs on the Internet, that can happen, and I cannot stop it. I know that the people and the House of Commons support this bill, however. I also believe that many senators support the notion that Clifford Olson and others like him cannot profit from their crimes. It is as simple as that. From what I have been told, I believe that this bill will prevent a criminal from actually reaping the profits of describing his or her crimes to the public. That is what Mr. Rosenfeldt said, and that is what he wants.
I am not dealing with provincial matters. Whether a person can collect on an insurance policy is a civil matter, because it is a civil contract. The common law will not permit a person to profit from the crime in a civil way. A son who kills his father will be unable to inherit the father's estate. A husband who kills his wife is not permitted to collect on the insurance policy. Otherwise, it would be a very nice way of making $1 million.
Senator Beaudoin: The criminal law and the civil law are two different things. If a person receives an inheritance from someone through a will, the fact that the person is in jail is immaterial. The person will receive the money.
Mr. Wappel: It is only material if the person is receiving the money because of his or her crime. If the son is in jail for killing his father, he will not receive his inheritance from the father's will. That is not permitted under the common law. If, however, he is in jail for killing his father, and his aunt leaves him $1 million, he will get it.
Senator Beaudoin: I am talking about the punishment. The punishment is in the Criminal Code. If you are the author of a crime, a murderer, you are sentenced and sent to jail. That is the end of the criminal law. If you have killed someone, you will not inherit from that person. If, however, you suddenly receive a fortune from someone against whom you have not committed a crime, you will inherit that money. That cannot be stopped.
Mr. Wappel: Absolutely not.
Senator Beaudoin: You do stop it in your bill, however. The writing for which you preclude profit is related to a crime for which the author has already been punished.
Mr. Wappel: Exactly, because he or she could not possibly have written the book without committing the crime.
Senator Beaudoin: The person has been punished for that.
Mr. Wappel: There are cases where a person has to serve time in prison, and then, for example, lose his or her driver's licence forever, or be prohibited from owning firearms or explosives.
Senator Beaudoin: That is part of the sentence, however.
Mr. Wappel: This will be part of the sentence, too. At the time of sentencing, this will form a part of the sentence. I did it this way so that it would be part of the sentence. Before committing a crime, every one is deemed to know the Criminal Code.
Senator Beaudoin: At the time of the sentence, then, the judge will sentence the person to jail, and then tell him or her that, while a book may be written, he or she may not profit from the writing of it.
Mr. Wappel: The person cannot write about the crime. It is a punishment for that crime.
Senator Beaudoin: It is an additional punishment.
Mr. Wappel: We can do that in the Criminal Code, and there is nothing wrong with it. Society decides the punishment for a crime.
Senator Beaudoin: Yes.
[Translation]
Senator Pépin: I am somewhat confused by your explanation and by the bill in general. I thought one of the aims of the proposed legislation was to protect victims. I want to come back to something Mr. Rosenfeldt said.
[English]
When he spoke about Clifford Olson, Mr. Rosenfeldt said:
I do not want him describing the look in the eyes of the victims as they died from the pain of being hit by him. That is where the problem is. That is exploitation of the victims.
Mr. Rosenfeldt had the feeling -- perhaps I misunderstood -- that your bill also provided protection for the victim. The way that you explain it to us today is different. You tell us that, as long as Olson does not write for money, he can write any obscenity. No one will stop him from writing about it.
Mr. Wappel: That is the case right now -- he can do that right now. In the evidence that I read to you, Mr. Rosenfeldt acknowledged that, under the Charter, we cannot stop criminals from writing. He understands it, and the victims understand it, but profit is even more of an obscenity. Imagine the obscenity of someone having a child killed, and then seeing the killer rake in money from writing a book about it.
[Translation]
Senator Pépin: He clearly stated that he did not want these criminals writing books or producing videos depicting the crime they had committed.
[English]
Senator Joyal: Yesterday we heard from witnesses about the legislation in Ontario which deals with victims' rights and the proceeds of crimes. In what way would your bill be different from the Ontario legislation?
Mr. Wappel: Senator, the Ontario legislation only applies in Ontario. As I said, if someone is incarcerated in Ontario, the legislation would apply. If that person were subsequently moved, or if he or she were to move upon completion of the sentence, the Ontario legislation would no longer apply. It certainly would not apply if the person were to move out of the country. It applies only within the Ontario borders.
Senator Joyal: Through national legislation, you hoped to establish what one provincial statute cannot achieve.
Mr. Wappel: Correct.
Senator Joyal: Is there a substantial difference between the system that is put in place in Ontario, and the one that you propose in your bill?
Mr. Wappel: I am not quite sure that I understand.
Senator Joyal: As you know, the Ontario system gives a curator the responsibility to hold the proceeds of the sale, and limits the number of years for which the proceeds can be held, in favour of the victims. In the Ontario legislation, a whole distribution system for money is in place. How do you compare the way this is managed with the way that it is managed in your bill with the amendment? Why did you act this way, and why did they act differently in Ontario?
Mr. Wappel: This is a private member's bill, and I am severely hamstrung in my ability to draft legislation that tells the government how to spend money. I must stay away from doing that, and I did. Therefore I did not set up an elaborate scheme such as is present in the Ontario law. I would love to see it that way, however.
My hope is that, when this bill passes, the government will recognize that it has passed. The government will then take part in developing the legislation by, for example, setting up a very specific fund where the money would be put. Let us hope there is no money. If there were money, however, it would be addressed, for example, to victims' concerns, and to things such as prevention.
When I was the official opposition critic to the Solicitor General, Doug Young, who held that post at the time, was bringing in amendments to the part which deals with the proceeds of crime. These proceeds of crime were to go into the Consolidated Revenue Fund. At the time, there was an attempt by myself and by others to delineate where that money should go. One suggestion was that it should go into a fund for each police force that dealt with the money. That is, a police force might spend a great deal of money in a drug investigation, and then seize $1 million in a suitcase. In that case, the police force should get the money for further drug investigations, rather than sending that money into the Consolidated Revenue Fund.
At that time, the Solicitor General's statement was that he and the government did not wish to be hamstrung as to what they should do with the money. Once it went into the Consolidated Revenue Fund, it then came back to the Solicitor General, and he could decide to funnel it back to the appropriate police forces if he wanted to do so.
I did not agree with that approach, and I would have preferred to include some clear uses of the money in the bill. Had I done so, however, this bill would never have been considered by this committee, because it would not have passed the private member's business committee.
If, under this legislation, money is seized by the Crown, I do agree that some special fund should be set up. In such a fund, the money would be used for victims, as opposed to simply being put into the Consolidated Revenue Fund.
Senator Joyal: When the witnesses appeared here on behalf of the Department of Justice yesterday, some of them raised constitutional doubts about the Ontario bill. The Uniform Law Commission discussed that and came to the conclusion that this subject needs further study. The commissioners felt that the Ontario legislation, even as it is written, would not survive a court challenge. The prevailing opinion is that it would be an infringement on freedom of expression.
As Senator Beaudoin pointed out, one side of the coin is the aspect of someone telling the story of the crime in order to repent. Someone can repent. Our system of rehabilitation is based on the capacity of someone to reflect upon the crime that he or she has committed, and to reintegrate into the normal course of life. Sometimes the telling of the story is part of that process.
The other side of the coin can be seen when someone unduly exploits the story of his or her crime, in order to incite others to commit the same crime. In other words, the intention of the author is to describe the perfect crime, and how to do it. In that context, that person might fall under other provisions of the Criminal Code.
Around this table, and among the witnesses from whom we have heard, there is a dominant opinion. People seem to be sharing the view that someone who writes the story of a crime with some attitude of repentance is different from someone who writes the story in order to unduly exploit it for lucrative benefits, or in order to incite others to the same cruel acts.
Your objective is certainly shared by many people, but there is a grey zone between what you are trying to achieve and the right of freedom of expression. Sometimes that line is very thin.
The Uniform Law Commission is dealing with this question. It is trying to come to some kind of conclusion whereby proposed legislation would survive the test court. There might be a weakness in your bill, or in the Ontario bill. They might need to be refined to the point where they could survive a test court.
As we said here yesterday, we do not want to simply draft and re-draft legislation. Considering the seriousness of the subject, when Parliament moves on this, it will want to have safe, real legislation that will not be struck down by the court the first time that it goes there. The Ontario legislation is, unfortunately, too young to have been tested. It was only proclaimed on June 11, 1996, and it has never been implemented.
This is where we are at this point. We are trying to take into our consideration your comments, along with those of the other witnesses, and the advice of the "experts" on this bill.
We must decide our position knowing that the Uniform Law Commission is dealing with this issue, as raised by the Ontario legislation, and is trying to refine it in a way that will allow it to meet the test courts. The consensus of this committee is that that is where we are now. We would like to move on this bill, but we have minimal assurance that it would survive the court. Further, we must make a distinction between the capacity of someone to produce a work which is fair and repentant, versus a work which exploits a crime in order to make money, and incites others to do the same.
Mr. Wappel: There is nothing in the bill that would stop anybody from telling the story. Let us put that aside. The person can tell the story; he or she just cannot profit from it.
I want to read from my presentation in March. It deals with what I consider to be the irony of Mr. Mosley's objection to this bill.
Mr. Mosley then proceeded to tell the committee --
-- that is the House of Commons Justice committee --
-- that the Uniform Law Conference ... 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... He advised that a model statute would be presented to that year's conference in Whitehorse, Yukon.
That conference was held in August 1997.
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 of the jurisdictions in Canada. What project is that? Well, Mr. Mosley told you on page 6:26 of... his evidence before you, where he says that the draft law... provides for the proceeds of the publication of accounts of crime to be vested in a province.
That is the uniform law. He is the president. He is working on that.
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.
He is working on a draft law to be passed by all provinces, which will seize the proceeds of publication of the accounts of crime. At the same time, he comes here and says that my bill is unconstitutional. He is doing exactly the same things on a provincial basis. Talk about irony.
Senator Moore: Mr. Wappel, in the amendment, you have proposed:
Her Majesty shall grant a royalty free licence to any person who desires to publish any work which belongs to Her Majesty pursuant to subsection (1), 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.
You say Her Majesty "shall" grant. I am wondering why you used "shall" as opposed to "may." What would the process be? If there were a transcript, it would have to be submitted to Her Majesty. Her Majesty might say that it is so heinous that no right to publish will be granted; or Her Majesty might say to someone like Donald Marshall that the transcript could help him in his cause to gain freedom and to prove his innocence, and that it will be permitted.
You are saying the licence shall be granted. Why are you saying that?
Mr. Wappel: If I had put "may," senators would say that I was using smoke and mirrors. It would still be called censorship by the Crown, because the Crown could decide on its own criteria when it would allow publication, and when it would not.
I was addressing the objection that, based on its own criteria, the Crown would be able to decide whether or not to allow publication. In the view of the witnesses, that may not necessarily be correct criteria. To make the granting of licences mandatory takes the discretion out of the hands of the Crown and, I thought, deals with that criticism.
Senator Lewis: Mr. Wappel, this bill was passed in the other place on a matter of procedure. It comes here, and there is an amendment proposed. I cannot remember the actual circumstances, but do I think that the amendment is before us?
Senator Beaudoin: It is not officially moved.
Senator Lewis: We can attend to that.
There are several alternatives before this committee. If we report to the Senate that we recommend the passage of the bill as amended, and the Senate does pass it, will the bill then go back to the House of Commons?
Mr. Wappel: Yes.
Senator Joyal: Will the bill go back to square one?
Mr. Wappel: I am not an expert on parliamentary procedure. The bill has been passed by the other place, however, and, in your scenario, would have been passed, with amendments, by the Senate. It would not, therefore, go back to square one. The other place would basically be called upon to debate it, and then to vote upon it. It would either accept the amendments of the Senate, reject them, or perhaps offer more amendments, and then send it back again.
Senator Beaudoin: You will rule on the amendments in the House of Commons?
Senator Lewis: If the House of Commons passes it again as amended, that is it.
Mr. Wappel: Subject to Royal Assent, it would be law.
Senator Lewis: Unless further amendments were made to it in the other place, it would not come back to us. I wanted to get that straight.
Mr. Wappel: I believe that to be so.
Senator Lewis: Thank you very much, Mr. Wappel.
Mr. Wappel: Thank you, senators. I know that you have given this a great deal of thought, and I appreciate it.
The committee adjourned.