Journals of the Senate
47 Elizabeth II, A.D. 1998, Canada
Journals of the Senate
Issue 71 - Appendix
Wednesday, June 10, 1998
1:30 p.m.
The Honourable Gildas L. Molgat, Speaker
WEDNESDAY, June 10, 1998
The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its
ELEVENTH REPORT
Your Committee, to which was referred Bill C-220, An Act to amend the Criminal Code and the Copyright Act (profit from authorship respecting a crime) has, in obedience to the Order of Reference of October 22, 1997, examined the said bill and now reports as follows:
Your Committee recommends that this Bill not be proceeded with further in the Senate for the reasons that follow. Your Committee's report concludes with suggestions for government consideration.
Preliminary Remarks
Your Committee notes that during the 35th Parliament, proposed legislation identical to Bill C-220 was referred to it for examination by Order of Reference on April 22, 1997. This legislation, then Bill C-205, died on the Order Paper prior to being examined by your Committee when Parliament was dissolved on April 27th, 1997.
In carrying out the Order of Reference of October 1997, your Committee has remained attentive to its role when examining referred legislation. Your Committee believes that the public interest and the integrity of the legislative process mandate thorough review of both government and private members' bills in order to evaluate their effectiveness, fairness, and compatibility with the Constitution. This view was shared by witnesses appearing before your Committee in relation to Bill C-220, who urged a proper analysis of the legislation.
Accordingly, your Committee has devoted considerable study to Bill C-220's proposals to amend the Criminal Code and the Copyright Act to prevent convicted persons from deriving profit from works based on their crimes. Following an initial course of hearings held from October 29, 1997 through March 12, 1998, proposals to amend Bill C-220 were suggested by the bill's sponsor, Mr. Tom Wappel, M.P. (Scarborough Southwest). Further submissions were invited and additional hearings scheduled on April 29th and 30th in order to ensure those proposals were thoroughly studied.
Throughout its study of Bill C-220, your Committee has been acutely sensitive to the concerns of crime victims, particularly victims of heinous crimes and their families, that persons convicted of such crimes might benefit from their depiction in any form. Like many Canadians, your Committee would find such accounts not only deeply offensive, but also deeply trivializing of the additional pain and suffering they would inevitably cause to victims.
In this light, your Committee sympathizes fully with the motives underlying Bill C-220's novel approach, and applauds the bill's sponsor both for his commitment in bringing the bill before Parliament and for his valuable contributions to your Committee's deliberations.
Your Committee strongly agrees with the principle, long recognized at common law and now in Part XII.2 of the Criminal Code as well, that criminals should not be allowed in law to profit from their crimes. Your Committee understands that the common law must be adaptable to society's changing needs, and that the approach adopted in Bill C-220 essentially seeks to extend that principle to new circumstances. Nevertheless, your Committee has concluded, following extensive examination, that it is unable to endorse the means proposed to achieve that end in Bill C-220 as drafted.
Bill C-220
According to the bill's Summary, Bill C-220 would:
S "[amend] the Criminal Code to include in the definition of $proceeds of crime' any profit or benefit gained by a person convicted of an indictable offence or his family from the creation of a work based on the offence";
S "[extend] to such profits or benefits in the existing provisions of the Criminal Code respecting search for and seizure and detention of proceeds of crime";
S "[provide] that a sentence for an indictable offence [was] deemed to include an order that any work based on the offence [was] subject to a new section in the Copyright Act"; and
S "[amend] the Copyright Act to provide that in such a work the copyright that would otherwise belong to the convicted person becomes and remains the property of the Crown, even after the payment of any fine or service of any period of imprisonment imposed."
The Summary further describes Bill C-220 as "not [preventing] any person from creating or publishing such a work", and as "[affecting] only the profit or benefit that accrues to the convicted person or his family."
Bill C-220's Criminal Code amendments
Proceeds of Crime
Writing is not a criminal offence under Canadian law. Your Committee has grave reservations about Bill C-220's amended "proceeds of crime" definition, which would equate proceeds linked to criminal activity with proceeds of the lawful activity of writing about crime. From an enforcement perspective, your Committee believes that the proposed definition, in and of itself, would have no real effect under the Code's complex proceeds of crime provisions. In addition, your Committee considers the proposal superfluous, since Bill C-220's intended transfer of copyright to the Crown would itself ensure that convicted creators of works targeted by the bill received no proceeds from those works.
Assuming it were enforceable, your Committee considers that the application of the proposed "proceeds of crime" definition to members of the convicted persons' families could also raise potentially significant fundamental justice issues.
More importantly, the proposal, even if enforceable, appears constitutionally questionable. Your Committee considers it more than likely that under the constitutional division of powers, the regulation of monies proposed by Bill C-220 does not fall within federal criminal law jurisdiction. Rather, it seems to represent a regulation of contractual rights, which is a matter of property and civil rights under exclusive provincial jurisdiction. Both existing Ontario legislation and the Uniform Law Conference of Canada process treat the confiscation of monies resulting from recollections of crime as a provincial matter.
Your Committee also has serious concerns that the proposed regulation of moneys paid to convicted persons on the sole basis of the content of their works would infringe freedom of expression under the Canadian Charter of Rights and Freedoms.
Sentencing
An examination of Bill C-220's proposed linking of the criminal sentencing process and copyright ownership has highlighted other significant concerns. The automatic nature of the bill's sentencing order that would subject persons convicted of certain crimes to possible loss of copyright in works related to those crimes fails to provide for exceptions of any kind. In your Committee's opinion, this measure represents a highly unusual constraint on normal judicial discretion in sentencing.
Your Committee notes with concern that the sentencing provision, as drafted, would apply not only to the convicted person, but also to "any work related to the offence," irrespective of authorship. The absence of any mechanism for the determination of the rights of third parties with interests in the works of convicted persons is also troubling.
Bill C-220's Copyright Act amendments
Your Committee's most extensive study has focused on Bill C-220's proposals to vest copyright in works based on crime by convicted persons or their collaborators in the Crown. It is your Committee's conclusion, based on the evidence, that these provisions are seriously flawed both under the Constitution and in light of Canada's international obligations in copyright matters.
Freedom of expression under the Charter
Your Committee believes that among the core values cherished by Canadians and consistently reinforced by Canadian courts, freedom of expression holds a pre-eminent place. In your Committee's opinion Bill C-220 would undermine that core value.
Your Committee is aware that Bill C-220 claims to be concerned only with the proceeds of expression about crime, and not to affect expression itself. Your Committee questions whether copyright ownership can be distinguished from authorship in this manner.
In your Committee's opinion, the likely practical effect of copyright expropriation by the Crown would be to discourage expression by making it more difficult for convicted persons and their collaborators to produce certain works and to have them reproduced. Your Committee is of the view that this broader effect on the content of expression makes Bill C-220 highly vulnerable to constitutional challenge under the Charter's freedom of expression guarantee.
Your Committee understands that a lengthy tradition of prisoner or convict literature has contributed to society's understanding of the causes and effects of crime, punishment, and other significant social issues. Over the course of hearings, the names of historic and contemporary figures, Canadian and foreign, whose works would have been captured by Bill C-220 were raised with regularity. Your Committee understands that these include Gandhi, Mandela, Malcolm X, Martin Luther King Jr., Nehru, Riel, Garcia Lorca, Governor-General award-winner Roger Caron and others who were convicted and wrote about their crimes, and whose works are universally considered an important part of the literary, social and political lexicon.
Your Committee finds it acutely disquieting that Bill C-220 would not be restricted to persons convicted of atrocious or heinous crimes, whose depiction for profit might be expected to provoke moral outrage. Rather, the bill would apply to all persons convicted of an extraordinary range of offences, whose recitation would not be distasteful to the public.
Your Committee considers the effects of Bill C-220's broad application would be aggravated by the fact that the expropriation proposed by Bill C-220 would remain in effect for the lifetime of the convicted person, irrespective of the length of sentence imposed for a given offence.
Your Committee is also deeply concerned that under Bill C-220, expropriation of copyright, which would take effect upon conviction of an offence, would apply retrospectively to the time the individual was charged with that offence. Your Committee finds that for those charged but not convicted, this measure could have a particularly severe and prolonged inhibiting effect on expression, owing to uncertainty over eventual copyright ownership arising from the charge itself.
Understanding that the freedom of expression guarantee protects listeners as well as speakers, your Committee is equally concerned that Bill C-220 could restrict the Charter right of Canadians to access the broadest possible range of material about issues of significance to their society.
Your Committee's review of recent Canadian criminal justice history raises a further troubling question as to whether Bill C-220 would restrict the ability of the wrongfully convicted to plead their case before the public. Your Committee finds that the lack of precision in the terms "substantially-based" and "collaboration" would create additional uncertainty over which works would be caught within those terms and therefore subject to copyright expropriation.
Your Committee is troubled that Bill C-220 would effectively place the Crown in a censorship role, with the authority to control the dissemination of convicted persons' works. The appropriateness of such a role is open to serious question, in light of government's explicit obligation to comply with Charter values.
Your Committee is also mindful that under the Canadian criminal justice system, charges laid may not result in verdicts, and the finality of convictions cannot be assumed. Wrongful convictions are not unheard of, convictions may be set aside on appeal, new trials ordered, convictions overturned on technical or constitutional grounds. In your Committee's view, the absence in Bill C-220's sentencing proposal, or elsewhere, of procedural safeguards or exceptions to allow for such circumstances is highly troubling.
Your Committee has considered whether, notwithstanding its belief that the bill would violate the Charter, Bill C-220 would nevertheless prove to be effective legislation, in that it would respond to a pressing public policy goal or societal need. Your Committee appreciates the sponsor's views that legislators should ensure that society is protected from the possibility of unacceptable conduct and that, assuming Bill C-220 were found to infringe freedom of expression, the courts would find that infringement justified.
Your Committee believes that in order for legislation to be effective, it must not be only anticipatory, but should target an existing social ill. Over the course of its examination of Bill C-220, your Committee heard no evidence to support the existence in Canada of a compelling national problem or of actual social harm arising from the creation or publication of works by convicted persons about their crimes. Rather, the weight of evidence drew a contrary picture.
Although deeply mindful of the aversion that victims of heinous crimes experience toward the potential of such harm, your Committee is of the view, based on its understanding of Supreme Court of Canada Charter jurisprudence, that Canadian courts are unlikely to conclude a social ill currently exists of a scope to justify the sweeping measures contemplated by Bill C-220.
Division of powers
Under the constitutional division of powers, competence over copyright resides with Parliament. It is your Committee's view that Bill C-220's proposed expropriation of both copyright and of the proceeds of copyright may nevertheless amount to a confiscation of property, which falls within provincial authority over property and civil rights.
Canada's international obligations
Your Committee is aware that as a signatory to the Berne Convention for the Protection of Literary and Artistic Work since 1928, Canada has agreed to adhere to the Convention's minimum copyright protection standards. In addition, the North American Free Trade Agreement and the World Trade Organization's Agreement on Trade Related Aspects of Intellectual Property Rights explicitly require Canada to comply with the Convention's rights-conferring provisions.
Your Committee considers that Bill C-220's proposed copyright expropriation would conflict with Canada's international obligations under these instruments. Your Committee appreciates that under the Convention, an exception to the standards it sets out enables certain state restrictions of authors' rights in the interest of public order. Your Committee has considered this exception and is persuaded that its terms are not broad enough to authorize the expropriation contemplated by Bill C-220.
Your Committee is aware of existing copyright vesting provisions under the Copyright Act. It is your Committee's view that no analogy can be drawn between these provisions and the mechanism proposed by Bill C-220. Unlike Bill C-220, the existing copyright provisions apply to contractual or employment relationships that necessarily involve financial compensation. In addition, these provisions enable the parties to opt out of their application, which Bill C-220 would not allow.
Proposed amendments to Bill C-220
Your Committee has given careful consideration to amendments suggested by the bill's sponsor in response to concerns about Bill C-220 that were raised over the course of its initial hearings. Some of these concerns are reflected in preceding paragraphs.
The sponsor's suggested deletion of Bill C-220's "proceeds of crime" redefinition would eliminate a provision which, the sponsor has agreed, would be unnecessary in light of the bill's copyright provisions.
Your Committee is concerned, however, about the effect of the sponsor's suggested removal of the phrase "and any work related to the offence" from Bill C-220's sentencing provision. Your Committee considers that reference to the convicted person rather than to his/her work could subject works on any topic to scrutiny under the Copyright Act.
Your Committee also questions whether the proposal that Bill C-220 be made applicable to "indictable offences" would represent a substantive change in the bill's scope. Your Committee is aware that, under the federal Interpretation Act, an offence is "deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment." Assuming the proposal did restrict the bill to offences that were in fact prosecuted by indictment, the bill would still affect an overly broad range of offences, in your Committee's opinion. These include not only many non-violent offences but, apparently, indictable offences under statutes other than the Criminal Code.
Your Committee has taken particular note that under the sponsor's proposed amendments, Bill C-220's pivotal copyright expropriation mechanism would remain in place. The vesting of copyright in the Crown would be supplemented by a requirement that the Crown issue "royalty free" licences to persons wishing to publish expropriated works, provided the convicted person would not benefit. Your Committee appreciates the intent of this proposal to respond to criticisms that the bill would or might reduce access to publication. Your Committee does not believe the proposal lessens its concerns about freedom of expression, which arise primarily from the expropriation itself.
Your Committee notes that in the event of a work likely to provoke moral outrage, placing the Crown under an obligation to issue a royalty free licence for purposes of publishing that work would seem highly inappropriate. The suggested obligation also appears at odds with the Berne Convention's broad prohibition of compulsory licences.
Your Committee has therefore concluded, after serious deliberation, that the sponsor's suggested modifications to Bill C-220 would not address its fundamental reservations relating to constitutionality, Canada's international obligations in copyright matters, and the bill's excessive scope.
Commentary
Your Committee greatly appreciates the efforts of the bill's sponsor to address the many issues raised before it in a constructive manner, and acknowledges his expressions of thanks for your Committee's fair, open and serious consideration of Bill C-220.
Your Committee has considered the sponsor's invitation to improve the bill through amendments, and thanks him for his offer of assistance in this task. Having reflected on this matter at length, your Committee does not believe that Bill C-220 in its present form is amenable to remedial amendment. Moreover, your Committee does not consider that the complete redrafting which your Committee believes would be necessary to enable Bill C-220 to withstand constitutional scrutiny falls within its mandate.
Suggestions for government consideration
The issues raised by Bill C-220 are complex ones for which there are no simple solutions.
While not persuaded on the evidence that urgent legislative intervention is currently required in Canada, your Committee acknowledges that the notion that persons convicted of certain serious crimes against the person might profit from their depiction represents a legitimate public policy issue that governments should be prepared to address legislatively.
Your Committee believes that a targeted, measured approach offers the most promising course for addressing this issue effectively, fairly and within the framework of the Constitution.
With this in mind, your Committee's suggestions focus on two distinct approaches. The first concerns the regulation of proceeds of accounts of crime for purposes of victim compensation. The second considers potential use of the federal criminal law power in relation to depictions of crime.
Victim compensation
Your Committee reiterates its conviction that regulating the proceeds of accounts of crime falls under the heading of property and civil rights, and is therefore squarely within provincial legislative jurisdiction.
Your Committee is aware that some, perhaps many, victims of crime, would define their central concern in this area as being to ensure that offenders derive no benefit from any depictions of their crimes. For other victims the ability to obtain financial compensation from the proceeds of those depictions would likely be of greater import. Your Committee is also aware that under Canadian law, existing civil remedies enable victims of a crime to seek injunctive relief, or redress in the form of damages, should a convicted person attempt to or actually publish a work recounting that crime. Your Committee is sensitive to the view that this remedial option may represent an additional burden for victims.
During the course of its hearings, your Committee became aware that in recent years, the Uniform Law Conference of Canada has devoted considerable attention to issues related to the regulation of proceeds from depictions of crime. Your Committee understands that the Uniform Law Conference, comprised of participants representing a broad spectrum of legal expertise, promotes uniformity of legislation throughout Canada on subjects on which uniformity may be possible and advantageous.
Your Committee believes that the model Criminals' Exploitation of Violent Crime Act, developed through the Uniform Law Conference process, addresses issues of concern to victims, while taking a suitably measured approach in matters of scope and constitutionality.
The Uniform Law Conference model statute respects the constitutional division of powers, in that it is concerned with neither the legality of depictions of crime nor copyright issues. In your Committee's opinion, the model statute is particularly noteworthy in that its application would be restricted to recollection of specified serious "violent crime." Proceeds of any such recollection would be distributed to victims by a designated provincial agency based on the agency's determination of the harm suffered. This approach reflects a fundamental distinction with existing Ontario and United States statutes, under which victims' ability to access compensation funds depends on their being awarded damages by the courts.
Your Committee notes that another commendable feature of the Uniform Law Conference model is aimed at addressing freedom of expression concerns. The law would authorize a court to order that some or all of the monies collected be paid to a convicted person, if withholding those monies would be an unjustified violation of freedom of expression. In deciding whether such an order should be made, the court would be required to balance the convicted person's Charter right with the purpose of the legislation, and to consider details of the crime, the purpose of the recollection, its potential impact on the victim and its value to society.
Your Committee understands that following a lengthy and complex process, the Uniform Law Conference's model statute has obtained broad-based support among provincial Attorneys General and other justice officials across the country. Although aware that this endorsement is non-binding, your Committee encourages provincial governments to undertake practical measures leading to the introduction of the model legislation in their respective legislatures.
Criminal law power
Your Committee is not convinced that the issues raised by criminals' depictions of crime are or should be restricted to matters of profit and compensation. Your Committee is concerned that the very fact of depiction for public consumption could, in rare instances involving particularly infamous crimes against the person, cause sufficient harm to justify a criminal law response.
Your Committee is aware that subsection 163(8) of the Criminal Code defines as criminally obscene any publication that is dominated by undue exploitation of sex alone, or sex and any one or more of crime, horror, cruelty or violence. Section 163 would likely criminalize a number of the potentially harmful depictions of heinous crimes against the person that are of concern to your Committee. However, not all such crimes involve a sexual component, nor would depictions of those that do necessarily focus on the sexual component.
Your Committee suggests that it may be appropriate to consider expanding the definition of obscenity in order to criminalize material that is dominated by the undue exploitation or glorification of crime, horror, cruelty or violence, irrespective of sexual content. Your Committee has taken particular note that the Code's obscenity provisions have withstood Charter scrutiny by the Supreme Court of Canada.
Your Committee believes that in order to conform to Charter values, any additional criminal law repression of the recounting of crime, if feasible, would have to be tailored narrowly based on a harm criterion. Procedural and substantive safeguards would also need to be incorporated in order to ensure that serious public policy reasons were the basis for any repressive measures instituted.
Your Committee's examination of this question has touched upon a number of additional consideration. These include, for example, the feasibility of authorizing the courts to suppress depictions of heinous crimes in certain defined cases, either in the context of sentencing or otherwise. Your Committee's discussions in this regard have identified the need to ensure that persons claiming wrongful conviction of heinous crimes would not be deprived of a public forum in which to plead their case. Your Committee is further persuaded of the necessity of allowing for other exceptions to any criminal prohibition, based on factors such as a given work's potential cultural or social value.
Your Committee is of the view that these and other related questions are worthy of further study. Your Committee therefore suggests that the federal Minister of Justice examine whether and how the criminal law power might appropriately regulate depictions of heinous crimes against the person. Your Committee is aware that for this purpose, in addition to benefiting from substantial departmental resources, the Minister may also call upon the Law Commission of Canada to prepare reports on specified topics. Your Committee suggests that this may be a suitable topic for inclusion in the Law Commission of Canada's program of studies, whether upon ministerial referral or at the Commission's own initiative.
Finally, your Committee understands that the House of Commons Standing Committee on Justice and Human Rights has undertaken a study on The Role of Victims in the Criminal Justice System. Your Committee suggests that this study include consultations with victims and victims' groups to obtain their views on the actual and potential harm resulting from depictions of heinous crime.
Respectfully submitted,
LORNA MILNE
Chair