[Recorded by Electronic Apparatus]
Tuesday, April 8, 1997
.0947 
[English]
The Chair (Ms Shaughnessy Cohen (Windsor - St. Clair, Lib.)): Steve Sullivan is on his way and will be here in a couple of minutes, and I think Debbie is scheduled for 10:30 a.m. Am I right?
The Clerk of the Committee: She is scheduled for 9:30 a.m.
The Chair: Okay. We're waiting for Steve.
Yesterday we didn't have a steering committee meeting, although we were supposed to. We do have the agenda from that meeting here so I thought maybe the whole committee could go through it and get it out of the way since we have a moment to do that.
You should have an agenda. Do you have that?
The Clerk: Yes.
The Chair: Okay. What's listed here are the matters before us that we have to deal with over the next few days.
Bill C-46 got through second reading last night and has been referred to us, so we need to proceed to clause-by-clause. This agenda says it may be referred soon, but in fact it was referred last night. We need to do clause-by-clause on that shortly, and we have that tentatively scheduled for tomorrow.
Are there any objections to that?
Okay. So we'll do Bill C-46 clause by clause tomorrow afternoon -
Mrs. Christiane Gagnon (Québec, BQ): That's not a problem for me.
The Chair: Okay. With regard to the Young Offenders Act, phase two, we have a drafting meeting on Thursday morning, tentatively scheduled for 10:15 a.m. until 12:30 p.m.
Bill C-205 is scheduled for today. Because we had Debbie come here once before when we had to cancel our meeting because of votes in the House, I'm suggesting that we bring motion 168, which is Mr. White's motion on victims' rights, up to this afternoon so that we can have the benefit of hearing these witnesses all on the same day. That leaves us a little bit out of order, but I don't think it should be much of a problem for anyone.
.0950
Are there any objections? Okay. That leaves us with Bill C-53, which is Mr. Mills' private member's bill on Internet lotteries, Bill C-217, which is Madame Venne's bill on protection of witnesses, and the main estimates.
And unless somebody strongly objects, I just don't think we're in a position to do scheduling beyond week by week at this point.
Now, you had a comment. I'm being referred to appendix C -
Mr. George Rideout (Moncton, Lib.): Why would that be?
The Chair: Because...I don't know. I'd be happy to schedule until June.
Page 10 on the main estimates...just for the sake of the people who are not usually here for steering committee meetings, the procedure we usually follow is to take lists from the parties of who they want to hear from and then we try to set them up. If the opposition parties and the government members could let Richard know who they want to hear from on the estimates, we'll start lining those up.
If you look at page 10, you will see that on April 22 we have tentatively scheduled - subject to your approval - the National Parole Board and the Royal Canadian Mounted Police. On April 29, we have scheduled the Correctional Service and the correctional investigator. Then the Solicitor General would appear. He customarily appears at the end of the process.
I offer the suggestion that as usual we ask the subcommittee on national security to take care of the CSIS and SIRC estimates.
Under the heading ``Justice'', we have a list on pages 11, 12 and 13 of the votes that we need to take care of on these subject matters. If the parties could let us know who they want to hear from, we'll try to make a cooperative effort and set it up.
I'm just going to keep moving right along if I don't hear any objections.
We have also some budget submissions. Richard, there are two things here. There's a budget submission for the period of April 1 to April 30.
This is the document, just so you're clear, and I ask for a motion to accept it. Once again, you need to know that those budgets are estimates only, and we usually overestimate.
Art.
Mr. Art Hanger (Calgary Northeast, Ref.): I'm just looking at some of the later dates here, such as April 29. Isn't that when they're calling the election?
The Chair: We don't know that, though. Honest to God, we don't know that.
Some hon. members: Oh, oh!
The Chair: Are you talking about the budget? Or are you talking...we're on the budget right now, but if you want to go back to the other, we can.
Mr. Randy White (Fraser Valley West, Ref.): Just checking.
Some hon. members: Oh, oh!
The Chair: He may have confided in Mr. Wappel, but I don't think the rest of us know when the election is going to be.
Mr. Tom Wappel (Scarborough West, Lib.): And I ain't saying.
Some hon. members: Oh, oh!
The Chair: Sue Barnes knows.
Mr. Tom Wappel: That's right.
The Chair: Are you okay?
Mr. Tom Wappel: I'm okay. I'm so nervous about the election -
The Chair: He's so nervous about our cross-examining him that he just fell out of his chair.
But what are we going to do? We have to carry on. There is an element of uncertainty, but let's just get the list and see where we're at.
Can I talk about the budget submission for a minute? The budget is for April 1 to April 30. Again, we're going in increments here and it's an estimate. We don't know whether we'll actually hit the estimate or not, and there's no real effort to try to spend the maximum.
Are there any objections to that budget? Can I have a motion, then?
Mr. George Rideout: So moved.
The Chair: I have a motion from George Rideout. Are there any objections?
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Motion agreed to [See Minutes of Proceedings]
The Chair: We have another document here - I'm going to go slowly here, because I'm getting my crib sheet from Richard as I go - that sets out some of the expenses we had in fiscal year 1996-97, ending March 31. There were some additional expenses for the subcommittee on firearms regulations that were not properly anticipated because of the number of witnesses. That included expenses for video teleconferencing, which went over what we anticipated would transpire. As Richard points out, we still saved money, because we didn't have to bring those witnesses to Ottawa.
So we need extra money in the amount of $39,846.63. I would ask for a motion to approve that.
Dead silence.
Mr. George Rideout: I so move.
The Chair: Thanks, George.
Is there any further discussion on that? Is there any objection to approving that amount?
Mr. Art Hanger: In reference to this outlay, why weren't these additional expenses anticipated when the budget was set to begin with?
The Chair: I'll check, but I understand we didn't anticipate the number of witnesses or the amount of video teleconferencing we would need in order to meet the demands on the subcommittee. As well, I think they thought it would go more quickly than it did. But that committee I think fairly understood that they should hear from as many witnesses as possible.
Is there any further discussion?
[Translation]
Ms Christiane Gagnon: So the $39,000 is a budget surplus. It is a surplus for us to spend.
[English]
The Chair: They spent more than we thought.
[Translation]
Ms Christiane Gagnon: So an extra $39,000, plus $20,000.
[English]
The Chair: Are members in favour of the motion to accept that budget expenditure?
Motion agreed to [See Minutes of Proceedings]
The Chair: In terms of this afternoon's meeting - Randy, maybe you can help me with this - it occurs to me that it's a little bit different from what we normally do. We don't have a statute in front of us to check off. I'm sure the witnesses will have organized briefs or thoughts in terms of what to present, but it seems to me that the important thing here is for the committee first to get a sense of what problems there are in the process that victims go through and then to try to sort out which of those we can use the Criminal Code or some kind of statute to streamline, and which are purely problems within the provincial administration of justice.
My experience is that some crown attorneys' offices handle things better than others and some provinces handle things better than others, but that's only anecdotal. I don't know if that's the case. I'm just looking for some guidance in terms of how we might start, because we're kind of starting out of order. I didn't want to keep dragging these witnesses back and forth.
Mr. Randy White: I am going to give an overview of what the problems are. I think I can articulate reasonably well to the committee what the victims are experiencing, the problems they are experiencing, and where best to place that. I don't think it's amendments to the Criminal Code but a kind of umbrella issue. I think they can from there support that argument.
The Chair: Then would you be prepared to make a statement this afternoon?
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Mr. Randy White: Oh, yes, I am prepared. I thought I was supposed to do that. Those were the instructions I got.
The Chair: Okay. I just wanted to make sure.
Mr. Randy White: I'll be nice and quiet and civil.
The Chair: You're the guy who's done the work on it from around this table, so let's hear you. I think the justice department also has done some work. We're trying to get them here.
Mr. Randy White: I think when we're through we can have a pretty good discussion on it.
The Chair: Yes. I think everybody wants to.
We also have a suggestion that we invite the National Crime Prevention Council, the National Parole Board and Irvin Waller to speak to the committee.
Mr. Randy White: It's...[Inaudible - Editor]...but you are the boss.
The Chair: Well, I'm not. Do you know them?
Mr. Randy White: No.
The Chair: Maybe we can give you some background on -
Mr. Randy White: No, that's fine if they want to talk to the committee, but I submitted names to the committee that are not here.
The Chair: We have those. We have some other witnesses as well.
Let's get through today, in any event.
Randy, how long will your presentation take, half an hour?
Mr. Randy White: No longer than half an hour.
The Chair: Great. We'll get some work done this afternoon.
Mr. Randy White: I'm sure you'll have some questions, too. Then there is theirs, however long that takes.
The Chair: Let's take a little break while we wait for the witnesses to arrive.
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The Chair: On Bill C-205, an act to amend the Criminal Code and the Copyright Act with respect to profit from authorship respecting a crime, we welcome back Gemma Harmison from Victims of Violence; Steve Sullivan, executive director of the Victims Resource Centre; and Debbie Mahaffy from ACTION. I say welcome back in two senses. We see an awful lot of you, but we also unfortunately had a glitch the last time you came to testify.
I just want to take a moment to do a commercial for all of the justice committee. This is part of our ongoing commitment to try to make sure private members' business gets shuffled into the deck properly and gets appropriate attention by this committee. This committee has the heaviest legislative load of any committee in the House, certainly during this term. But it also has the heaviest agenda in terms of private members' business, so we made an undertaking to try to deal with it quickly and expeditiously and not let the hearings fall by the wayside. That's what we're doing today.
I've done a straw pull and I anticipate a very friendly hearing for you all around the table today. Do you want to go first, Steve?
Mr. Steve Sullivan (Executive Director, Victims Resource Centre): Thank you, Madam Chair. I think I can speak for the whole panel in saying we support Bill C-205. It's a principle in our justice system and in our Canadian values that criminals should not be permitted to profit from crimes. It's been entrenched in common law and again in Canadian values for many years. Currently, however, there's nothing to stop criminals from profiting from selling their stories for book deals, interviews, movie deals and those kinds of things. Bill C-205 addresses this shortcoming in the law and adds protections for victims of crime.
Before we get started, I'd like to thank Mr. Wappel, on behalf of victims and victims groups across the country, for his continued support of victims of crime in this bill. Again, I'd like to thank the committee for dealing with this bill relatively quickly, as it has not been before you for all that long.
I think the most positive aspect of this bill is that it is enforceable outside of Canada. I don't think it's a secret to any of us that the biggest threat we have of the more high-profile people like Clifford Olson or Paul Bernardo selling their stories is really from the U.S., and not from within Canada. The secret of this bill is that it will be enforceable outside our own borders. It actually makes the copyright the property of the Crown, as part of the sentence, and I think that's really the secret of the bill.
The one concern we do have about the bill, before I get into the other concerns that have been raised by others, is that proposed subparagraph 462.3(c)(ii) may prevent families of offenders from profiting. We see the logic that you don't want offenders collaborating with their families to profit from crime. However, we don't want to see incest survivors or women who have been battered by their husbands being prevented from telling their stories and making a profit, if that's possible. That's the one issue of concern we have about the bill. I think it's relatively easy to fix.
Other concerns have been raised by others about the bill as it relates to books that have actual artistic merit, like those by Roger Caron or Julius Melnitzer. These books can actually provide something to society because they have something important to say and don't really glorify the violence or the crimes that these people have been part of.
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If the book or the contract doesn't deal specifically with the crime itself and the crime is just part of the story and is mentioned in the story, I don't think this bill would capture that. Even if it did, that's something that would be decided by a court. I think the proper interpretation would allow those kinds of books to be profitable.
The Department of Justice has raised several concerns, some of which we will try to address today. Of most concern is section 2(b) of the Charter - that this may infringe on someone's right to freedom of thought, opinion or expression. I don't think this bill does that. There is nothing in this bill that prevents anyone at any time from selling his or her story or telling his or her story to anyone. Clifford Olson has written manuscripts and he could theoretically publish them if he wanted to. This bill would stop him from profiting from that.
I don't know whether the charter concerns with respect to that are all that serious, because it doesn't prevent anyone from expressing thought or opinion. Let's assume it did, for example. We limit people's rights every day in this country. Corrections Canada has imposed a media ban on Clifford Olson. That, in itself, is an infringement on freedom of thought or expression. However, courts have upheld that media ban for the greater good of society, the victims and even Clifford Olson.
So we do infringe on people's rights every day, and even if this bill were found to be an infringement of those Charter rights, it could be justified under section 1.
The second major concern of the Department of Justice seems to be that sections in the code right now refer only to the direct crime, and profits gained directly or indirectly from the commission of the offence. It argues that this bill would not capture that because it doesn't really come from the offence itself, and there is nothing illegal about writing a book.
The counter-argument we would use is that if there is no offence there is no book. If the offender doesn't commit the crime then he isn't going to write a book about it. So there is an indirect relation there, if not a direct one. We also feel the concern is not a serious one.
During Mr. Wappel's appearance before this committee on the bill, there was discussion about amending the bill with regard to people who have pardons, or limiting it so it's not for a lifetime after [Inaudible - Editor] expiry. We would recommend the committee not amend that, because either you accept the principle that criminals don't profit or you don't. If we're saying criminals shouldn't profit from crime, then they shouldn't profit 10, 15, or 20 years after the offence.
That would provide more protection to victims of crime as well. One of the benefits of this bill is that it will provide protection to families of victims and victims themselves. If we're only going to enforce this bill for a certain period of time, then I think we're leaving them open to victimization and ignoring the principle behind the bill, which is that offenders should not profit from crime. We would recommend that those provisions of the bill not be amended.
I'll let others on the panel address the other issues, but the final thing I'd like to mention is something Madam Chair raised when Mr. Wappel was here, and that is what to do with moneys seized through this bill. Certainly a fund dedicated to victims is something we would support wholeheartedly. Research into victims' issues, education for young people, and education for victims about their rights within the system are all things that we think would be very valuable, and we'll be discussing a lot more this afternoon. I think that idea is a good one and we support it.
I'll just conclude by saying that this bill had a lot of support in the House of Commons. I think all parties supported it, and we hope you will give the House one more chance to support this bill relatively quickly at third reading.
Thank you. I'll turn it over to Ms Harmison from Victims of Violence.
Ms Gemma Harmison (Director of Research, Victims of Violence): Thank you.
I'm director of research at Victims of Violence, and when this topic came about our executive director, Gary Rosenfeldt, gave me the option of preparing my own brief or including some excerpts of something he had written. Unfortunately, the Rosenfeldts could not be here today because there's been a death in the family and they're attending the funeral out west, but I would like to read the excerpt Mr. Rosenfeldt prepared. In my view, there's no better person to testify than a family or family member who is directly affected by the possibility of criminals profiting.
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Mr. Rosenfeldt's statement reads as follows:
Clifford Robert Olson knows very well that he will probably never be released from prison. He knew this back in the summer of 1981 when he admitted to being responsible for the murder of eleven innocent children. Prison, however, to him, is not such a bad thing. He has spent most of his adult life in prison and he has accepted it as just another place to live. To make his stay in prison more comfortable, though, he requires money. Without money he is just another inmate incapable of accessing the finer things in prison life.
This was the reason for the ``cash for bodies'' deal at the time he was charged with the murders of the children. Knowing he would be going back to prison, he made a deal that he thought would ensure him money in prison or a possible retirement fund for when he might be released. His plans were thwarted when the families of his murder victims took him and his lawyers to court in an attempt to recover the ``blood money'' that had been paid to him. He had directed the money be put in his wife's name but he continued, for his first year in prison, to spend the money. He spent the money through his lawyer, purchasing various things for himself and even offering money to friends to visit him in Kingston. Within a year his $100,000 ``cash for bodies'' payoff had been reduced to $55,000. The lawsuit by the parents of his victims ended his spending spree, with the balance of the money then going to his wife. Knowing that the killer had benefited financially from the murder of their children has left scars that remain to this day with the families of his victims. They cannot think of their loved ones without being reminded that the killer actually profited from their child's murder. At the time, the parents were simply told that ``although it was against public policy for a criminal to profit from his crimes'' there was nothing that could be done to recover the money.
The nightmare of the killer profiting from his crimes has not ended for the families of Olson's victims. Over the last 15 years that he has been in prison he has continued to torture the families of his victims with attempts to profit from his notoriety as Canada's worst monster. He actually promotes this image referring to himself as the ``beast of B.C.'' in letters he writes to news media, M.P.s and others on the outside. Building up that image promotes the sale of his serial killer trading cards which he offers to sell for ``$8.00 U.S. or $10.00 Canadian.'' With the assistance of the Correctional Service of Canada he has also made a series of 12 videos, each 2 hours in length, in which he says he describes the ``sex acts and the murders.'' The videos have been copyrighted in his name and he is currently offering five of these videos for sale to the public for $300.00. It is probably only a matter of time before one the news magazine shows purchases the videos to entertain their audiences with a horrid account of the details of the rapes and murders of eleven innocent children. It was only a few months ago that one of the channels aired a video of Richard Speck in prison telling of how it ``just wasn't their day,'' referring to his victims.
Olson has also written two books, in which we can only assume he once again describes the details of the ``sex acts and the murders.'' We assume this because his only claim to fame is the murder of eleven innocent children. His memoirs, on video or in book form, would be worthless had he not committed the most heinous crimes imaginable.
The only thing standing in the way of Olson promoting the sale of his books, videos and serial killer trading cards is a gag order placed on him by the Solicitor General of Canada. He has not been allowed access to the media in recent years due to the pain he has been able to continuously inflict on the families of his victims from his prison cell. The families of his victims have been appreciative of this ``gag order'' but it may soon be lifted. Olson is challenging that gag order in a courtroom in Saskatoon on April 9th. Should he be successful, it is expected that he will immediately begin doing interviews for a price, once again benefiting from the murder of the children at the expense of the surviving victims. Not only could he be paid for the interviews but it could be a means of promoting the sale of his books, videos and trading cards.
The memories that the parents and families of the victims have of their loved ones are constantly clouded by the man that took their loved ones from them. To maintain his notoriety and to keep the money coming in Olson must constantly be in the public eye. For this reason he takes every opportunity he can to access the public. He knows full well that he does not stand a chance at parole, but again, he uses every opportunity to promote himself at the expense of his victims. This is the reason for him applying under Section 745 for a hearing on his parole eligibility date, a hearing that will take place in Surrey, B.C., beginning August 18, 1997. The families of his victims have no choice; they have to be there to represent their loved ones and to present victim impact statements; Olson will be there to promote himself as the ``Beast of B.C.'' so that he can sell more product.
The families of Olson's victims, as most other families of murder victims, would simply wish that he could be locked in a cell for the time he was ordered to serve by the courts. This is not happening, because our laws allow this monster and others like him access to the means to continuously profit from their crimes. Every dollar they earn inflicts further pain and suffering upon the victims of their crimes.
I'd also like to take this opportunity to thank Mr. Wappel for bringing forward this bill. We are in clear support of it.
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I'd be happy to answer any questions about the statement during the question period. Thank you.
The Chair: Mrs. Priscilla de Villiers from CAVEAT.
Ms Priscilla de Villiers (President, CAVEAT - Canadians Against Violence Everywhere Advocating its Termination): Thank you very much.
Possibly one of the most devastating truths you become aware of when you're unlucky enough to find yourself a victim of violent crime is that those very horrifying cataclysmic events that have destroyed quality of life and one's future course of life become entertainment for others. I think this is possibly one of the most devastating realities, once you've actually got through the crime. The more titillating the subject, the closer to hard pornography that the events are, the more profit there is to be made.
Thus I think one of the most painful meetings I've ever attended was one organized by the justice committee at which 30 people representing writers, actors, television producers, cable companies and the like sat around a table with me and all claimed the right to use these most dreadful, personal and incredibly painful real-life experiences for entertainment and for profit, and for no discernible other reason.
When I was in the courtroom during our inquest, there were five or six would-be authors and many magazine writers. One man came up to me and said he wanted to write a book. I said, no, please, I'm really not ready for that. We don't want that sort of exposure. Can we please just have some privacy? He said, face it; it's going to be written. So I faced it, and I chose my own author and I tried to control it as much as I could.
But I think both the Clifford Olson tapes and, of course, the deaths of Leslie and Kristen and the subsequent fight that has been going on in the courts for nearly five years now to have access to the video tapes for entertainment purposes and for profit has focused us on that. I cannot stress strongly enough the profound effect the audio tapes and the detailed blow-by-blow accounts of Leslie and Kristen's ordeals have had on women and children, parents and grandparents in this country. This has not benefited anybody but those who have stood to make a profit. So it's in that light that I welcome this bill.
I don't want to repeat what has been said here. I have, however, applied to my counsel, Professor Alan Young, of Osgoode Hall for his feelings about the constitutionality and so on, the charter objections. He had written an article in 1988 in the Intellectual Property Journal on the Son of Sam bills, in which he examined how that type of bill, of criminals profiting from crime, would play in the Canadian sphere.
Subsequent to that, when I sent this bill-to-be, he felt there were a number of areas that should possibly be looked at before a bill like this became law within the Canadian context. I'd like to draw this to your attention because I know you're going to be going straight into a clause-by-clause. That's all I'm going to do.
There is concern that this legislation may not be upheld in the courts and may not fulfil its true purpose, because, for one thing, it's ineffective.
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In the American schemes - those are the Son of Sam laws, which twenty of the states have taken - there is an obligation on publishers to place all royalties in an escrow account that is to be later distributed to victim assistance funds. In the Canadian scheme, law enforcement officials would be required to investigate and seize assets as proceeds of crime. This is cumbersome, time-consuming and costly. It's much easier to place the burden upon publishers to set aside the royalties that they know are covered by the act. The proposed regime would allow for money laundering and other forms of hiding assets, and we have to hope the police will conduct a thorough investigation in order to trace the money trail.
Characterizing book profits as proceeds of crime means that the money will be forfeited to Her Majesty and will not be earmarked for victims per se. Therefore, the proposal would not necessarily benefit the people who were intended to be benefited, and the scheme would become punitive without any compensatory objective. This refers to experiences in the United States.
Second, the proposal is vulnerable to constitutional attack. The United States Supreme Court invalidated the New York law primarily because it was ``underinclusive''. That is to say, it only targeted speech, which is a protected freedom; it did not target other types of assets that an offender may now possess or may possess in the future. The court concluded that it violated the First Amendment by singling out speech activity, and I can foresee our court reaching the same results - and in this article, there are examples that back that up if you want them. To ensure that the proposal does not violate the charter, it would be preferable to have this profit-stripping scheme form part of a larger legislative proposal to monitor and seize an offender's assets for the purposes of facilitating victim compensation.
The other major constitutional infirmity presented here is the fact that profits seized are not earmarked for victim assistance. Without doing this, the Crown may not have the compelling reason that it needs to argue that profit stripping is a reasonable limit under section 1 of the charter - and there are four or five areas of concern under section 1.
Finally, there are concerns that the legislation operates by vesting copyright in the Crown. This goes too far. The state should be concerned with criminals profiting from book deals, not with the fact that the book is written, because you run into the problem of intellectual freedom. Vesting copyright in the Crown may mean the Crown can obstruct and prevent publication per se, without regard to the issue of profits. Our courts may view this as unduly intrusive on freedom of expression. It's a much milder and less intrusive violation to strip profits than it is to prevent dissemination of expressive material - and those are the comments that he made about the proposed legislation.
I apologize to you that I didn't have those photocopied. I will, I'll include them in your package, and I'll be happy to answer questions on this.
The Chair: Thank you very much.
I'll just say that the bells are ringing here, which normally means there is a vote. The information from our whip's desk says that although the bells continue to ring, this vote is in fact going to be deferred until 5:30 p.m. If anyone is jumpy about that and wants to call their whip's desk, go ahead.
Ms Mahaffy.
Ms Debbie Mahaffy (ACTION for Victims): I'm going to give you a real challenge to follow my illogical train of thought here.
The Chair: You've been here before, so you know how our minds work.
Ms Mahaffy: Okay, then we might be all right.
The Chair: That's right.
Ms Mahaffy: On behalf of ACTION for Victims, all of the families of victims of violence that I have personally met, and those in the general public, I am pleased to be before you once again to put into personal perspective the national need for this compassionate bill, Bill C-205. No one but a victim of violence or a family that has suffered losing a member to a murder or to a crime, even a sexual assault.... I must say that profiting from any crime, whether it is murder or whether it is a much lesser crime like bank robbery, sexual assault, stealing cars, and all of that, must also be considered in this bill. It's no longer just the murderers.
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There is no one who knows the preciousness of life better than those who have had their family member snatched from them. Murder is not entertainment to the families of victims, but we all know that it is to third parties who publish books without the consent of families, without input from families. Those third parties make up whatever they like, and sadly, the public thinks that if it's in print, it's true. From experience, I know that all five books out there are not true. At least, it's not the family that I live in anyway.
If we do again consider that these books are entertainment - and this is a little bit aside from where Tom Wappel is going with the bill - there's another 9% entertainment tax that I would ask you to consider. If you go to watch a movie made about a murder or a movie made about a bank robbery, you do pay 9% at the door as entertainment tax. Perhaps there's a bit more income there that could go towards rehabilitation for victims' families. I would suggest that these books are another place from which any moneys received through profiting from crime should go towards victims.
I also feel there should be federal control of these moneys, possibly under the auspices of the Canada Pension Plan's disability plan, and especially for the non-wage earners who are overlooked in the Criminal Injuries Compensation Board in Ontario. I'm not sure about how the other provinces deal with the non-wage earners, for example, the siblings who are too young to earn a wage or the grandparents who suffer great grief and great stress and receive no compensation. Often therapy comes at great cost to them.
I have talked to a family in northern Ontario. The husband in that family was one of the last men to be hanged by the government - sorry, his two murderers were hanged by the government. That family contacted me in great distress forty years later because they had heard that a movie was being made in their area based on the story of the case. The husband was not painted in a very good light, and it was not true. She asked what she could do about it.
What can she do about it? It's intellectual freedom. There are only two choices. Either you can go out and say what you feel out loud, or you can sit there and silently endure everything about it.
Bill C-205 will not stop the potential national disaster that will be allowed to occur if we continue to condone perpetuating violence. Stopping this national disaster is one way by which the government can show it is really interested in victims' rights. And it really will be a disaster; the numbers are growing annually, monthly.
I think it's a severe and shameful contradiction if this bill is not allowed to get to third reading. There are great similarities between this bill and philosophies of the killer trading cards.
With regard to the killer trading cards, Minister of Justice Allan Rock said, on April 20 - and we can just substitute Bill C-205 - that they glamourize, they trivialize and they commercialize the most odious human behaviour. So does allowing anyone to profit from their crimes. It simply doesn't reflect the kind of values we want for ourselves or our children to allow people to make money from that kind of enterprise.
I think he's absolutely right, and we can also say this about any kind of profiting from crime.
I am concerned that someone in prison, someone who needs to have a lawyer to launch an appeal, needs only to collaborate on a book with a company in order to get those moneys for the appeal. I'm concerned that somebody who needs money can collaborate and sell his or her story to receive large sums, for a movie contract, for instance, inside or outside our country. I'm concerned that this will put the guards in a very precarious situation.
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I don't think we should upset the status quo of the prisons. Our prisons will be even more controlled by a very rich inmate. It will be those in prison who have the most money who will also have the most control.
We cannot allow the cheap souvenirs - and that's what they are - of books, movies, whether it's even paintings, trading cards. Who knows what they will think of as they sit there, whether it's for 25 years or whatever? We can't let those souvenirs - and that's what they will be - de-sensitize us to the horror and the lasting effects of murder, bank robbery, or armed robbery.
Anything that comes from a criminal in our penal system is not innocuous but is an impetus to more violence, more copycat killings, more copycat bank robberies, competitive killing, and an insensitivity and trivialization of the most serious crimes with mammoth ramifications.
If we condone and overlook this bill now, then this government has failed us greatly. Millions of dollars are spent at all levels of government and millions of lives are destroyed by violence. The government knows that. This is one way; this bill will prevent and save a few million. But that's still not enough.
When we talk about the freedom of expression, I would like to remind you that perhaps the killer, and the bank robber for sure, have expressed their freedom of expression in their actions. They've taken their freedom of expression and done what they have done to land them in a situation of a penal institution. Their freedom of expression is guaranteed by the Charter of Rights and Freedoms, but my daughter's freedom and my daughter's right to life, liberty and security, which is also guaranteed under the Charter of Rights and Freedoms, was denied. There is no final insult. This goes on and on and on. I am pleading with you not to allow this to go on.
How can you, if we are all human...? We are all, and some even more than others, drawn to the macabre. But we do not need to exploit it, and it is exploitation to allow our country to make a mockery. To allow this would make a mockery out of every dollar we spend on public inquests, judicial reviews and the millions spent by the justice industry itself.
You talk gun control and then allow those who have toted guns to tell their story. It is a terrible contradiction. Whatever happened to this government's promise of zero tolerance to violence? To allow profit is regurgitation again of man's cruelty to man for profit. This is condoning profit from crime.
The money over morality mentality - is that where we are? This bill is not there. This bill is going to prevent any of this money over morality mentality. The copyright laws must be changed and can be changed. If there is a will, there is a way.
I will close there and say that there are many, many more reasons to look at this very seriously. We've only scratched the surface, but I do hope you will put this bill through third reading so we can get the good discussion and the deep discussion this bill needs. Thank you.
The Chair: Thanks.
Madame Gagnon, do you have any questions?
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[Translation]
Ms Christiane Gagnon: This is the first time I am seeing the bill, and I want to make some comments. I think any profits from undesirable productions should be put into a fund for victims who were penalized and who are in very difficult situations.
However, I do not think the bill goes far enough. The idea is to discourage criminals from producing such material and living off its proceeds, but that applies only to the profits from the film. It does not go far enough in dealing with freedom of expression. As Ms Debbie Mahaffy said, victims no longer have that freedom of expression and they are severely affected by it.
Your comments this morning shed a little more light on the scope of the bill. From what I can gather, this is a good bill, but it does not meet all the goals one could expect from such a bill. For instance, it does not ban the broadcasting and production of videos or books. Material can be produced by someone other than the person who will profit from it.
I find it odd that the Crown would say that on the one hand, money would be collected, but that on the other, this type of thing will be allowed. It is as though they were turning a blind eye to potential material. Thank you.
Is that the message you wanted to leave with us this morning?
[English]
Mr. Sullivan: I guess the points we made were directly in relation to this bill. You're right, this bill only does a specific thing. It will prevent criminals from profiting from selling their stories or writing books or making videos or movies. In doing so, I think this bill balances the rights of victims, if you will, with the rights of offenders. In our charter we all have the right to freedom of expression and freedom of thought. This bill doesn't prevent anyone from doing that. What it does say is that you can't profit from doing those things.
I would like nothing more than to see a bill that would say to Clifford Olson that he cannot sell those manuscripts or cannot even write those manuscripts or publish them; the same to Paul Bernardo, or whoever. On a personal level, I'd love to see a bill or a law like that. But I don't know that it would stand up to a charter challenge that says we believe people have a right to freedom of thought and expression. If a bill could be drafted that way, I would certainly wholeheartedly support it.
The other things that Mrs. Mahaffy touched on were concerns about other people writing books about crimes as well, other people profiting from fairly high-profile cases, glamourizing violence. Certainly this bill doesn't address those concerns, and I don't know that we could ever stop that. Maybe there are ways that we can better control it, to see that if books are put out they are more accurate and that they do have consent and the families are involved in that.
Certainly this bill doesn't address those things, and I don't think it was drafted to do those things. I think it walks that tight balance with the charter.
Ms de Villiers: Yes, I'd like to agree with that. What we've been dealing with in the courts in trying to deal with obscenity clauses in the Criminal Code is something that would address some of your concerns as regards children, etc., but it is different legislation and it addresses different areas.
As I understand it, this is a narrowly focused bill that would merely attack the profit side. As I understand it - and Mr. Wappel could probably speak better to that - it is the easiest area to attack. I think that's why in 1977, when David Berkowitz, the Son of Sam, was selling his story for a huge amount of money, Senator Gold initiated the original legislation, because that was where one could attack the profits or, in other words, take away the incentive for the accused to do that.
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It doesn't begin to deal with the moral issues. I quite agree we need that, but as I understand it, that would be entirely different legislation and would present very, very different problems. That is why I brought up the concerns I did today, so that we could focus and avoid running into the charter problems of freedom of expression, etc.
I really appreciate the fact that you would support looking further at the huge exploitation of very real tragedies, with little discernible benefit to other people apart from the people profiting directly.
The Chair: Before we go to the next witness, in an effort to keep everybody posted about what's going on in the House, I understand the sitting has been suspended for a few minutes. Apparently the whips are negotiating to have the vote held this evening, so we'll get bulletins here as we go along. If anybody's nervous about it, call your whip, but that is my understanding from the Liberal whip's staff.
I recognize Mr. White.
Mr. Randy White: Thank you, Madam Chair. I do have a number of questions.
First I'd like to ask Mr. Sullivan a question. Why do you suppose, Steve, that in April 1997 we're just getting around to discussing this issue?
Mr. Sullivan: I guess there are probably a lot of reasons. Traditionally, I don't think private members' bills are a high priority. I'd like to think that's changing. Certainly, when we compare the speed of this private member's bill to others we've waited for, such as Mr. Nunziata's or Ms Meredith's, this bill has gone relatively quickly. But I think this is a relatively simple bill and is one that all parties support. I hope it's one that can be dealt with relatively quickly and is being done now so that we can get it done before we enter an election, if that's the way we're going to go.
Mr. Randy White: Ms de Villiers, it was Judge Howard I. Wetston - I think this was in Manitoba - who said last year that it was too sweeping an infringement for prisoners in this country not to have the right to vote. That decision apparently was not challenged by this government, although it remains a rather contentious issue in society today. To some extent we're dealing with something similar, a charter challenge so to speak, where I believe the legal industry today is looking quite benevolently on charter challenges for prisoners, criminals. How do you propose we're going to get around this kind of issue? I know it may be legislation by this government, but I'm sure the legal industry out there will have a field day with it.
Ms de Villiers: That was actually what was being addressed in these two very brief suggestions that I brought from my counsel, who, as I said, has looked into this issue quite thoroughly. Let me just backtrack a little bit. In my reading, it seems to me that one of the concerns about having a blanket prohibition on offenders having any expression has been the concern that we would lose that sort of intellectual understanding, etc., of crime. Quite a lot of valuable research certainly comes out of the United States using offenders and their experiences and so on. I gather that was the, I think, rather misguided idea behind the video tapes. They also fit. I'm not going to comment on the merits of them, I'm just saying that's one of the arguments.
The other thing is that the freedom of expression is very strong, both in our Constitution and in the United States Constitution. The United States has had over 20 years of experience in this. So that is why my counsel suggested, having looked at it, that if the scheme of preventing the profiting from crime is not merely punitive but has a compensatory effect - in other words, it goes to victims as opposed to general revenue - then this is something that could actually be argued. There are a number of charter arguments, which I can give to you.
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So I think we can get around it, but we have to take heed that it might not stand up.
Mr. Randy White: I think you and Steve were addressing this issue. Is there a way to prevent the following from happening? There is the case of the benevolent donor living inside the prison walls who says, I'm recording this and really all I'm doing is donating it to society in my name in order to help you out, so to speak. You know how these criminal minds work. If you're not going to allow me to make money on this, I will get notoriety from it. I will distribute this, and the country will -
Ms de Villiers: I think that's correct, but I don't think that would be addressed in this bill. I think that would be addressed in the freedom of expression bill we were talking about.
Trust me, it's very high on our agenda. We in CAVEAT have been spending the last five years raising funds and trying to assist in dealing in the courts with this dreadful issue with regard to the video tapes. It's very necessary.
But I think what this does is stop the pure profit motive, which was the purpose of the United States legislation in the Son of Sam case because David Berkowitz stood to make a huge amount of money by selling his story. I don't know if you remember the case, but he committed some really dreadful murders. It was pure profit, and that is what prompted Senator Gold, as shown on the fact sheet, to bring in the initial legislation.
As far as I can see, that's all this legislation is aiming at. It's small but it's important. It's one step. Then we go to the next one, freedom of expression, which is the difficult one. That's my reading on this. I don't know if everybody else agrees. To take away the profit is important. Then you get to the next one where you just want basically to jerk everybody's chain and be notorious, and then we'll have to deal with that in a different area.
Mr. Randy White: Do I have time for one more question?
The Chair: You have about four minutes left. I know Mr. Hanger has some questions, too.
Mr. Randy White: Mr. Olson applied through an accounting firm for an application for bankruptcy, and that firm said he really had no cause to do that. Steve, I wonder if you could just enlighten me as to what you think is the motivation behind a criminal, regardless of their notoriety, applying for bankruptcy.
Mr. Sullivan: It's unfortunate that Mr. and Mrs. Rosenfeldt aren't here to discuss this further, but I believe that some of the families have a civil suit against him. So if he had money, that money should be paid to the families. I would assume that if he does have money, he's simply trying to get rid of it so he doesn't have to pay them.
Mr. Randy White: Thank you.
The Chair: Mr. Hanger, there's about three minutes left.
Mr. Art Hanger: Ms Mahaffy, I'm interested in some previous comments you made in reference to the tapes made at the time your daughter was murdered by Homolka and Bernardo. It deals with this ownership aspect, who actually should have control. I notice the bill talks about proceeds of crime. But it also talks about copyright. This particular bill identifies the Crown as the sole copyright owner of the property or material produced.
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Now, you've been on record as telling the courts, a parliamentary committee, and the public at large that it is you who has a right to see any kind of material produced, especially evidence from the Bernardo and Homolka trials, and that you should have the first right of possession, copyright and ownership.
Ms Mahaffy: We'll hear more about that if and when our case gets to the Supreme Court. We feel we do have the right of ownership. Those are our daughters, and that is their last testimony. Bernardo himself owns the casing, but what is on those tapes is ours. It's our daughters. It is their souls and their personalities that are there. I think that's outside the scope of this bill. Those tapes were seized as an exhibit, if you will, for his trial, and hopefully they will never be published, because they are held and secured by the court.
With regard to other tapes that are made under a contract, perhaps the publishers and contractors who enter into an agreement with these criminals have a responsibility towards the public with regard to what they agree to produce when they enter into a contract with a criminal. I believe the copyright should be held by the government. If the publishers and the producers know that at the time, maybe they won't enter into such a large contract.
Mr. Art Hanger: I see this whole area as not being very well defined anywhere in legislation, and this bill is quite narrow in its scope, too.
Tapes were made of the interview with Clifford Olson, and the warden was a big part of that particular endeavour. There's concern on the part of many as to who should be privy to that information. I don't see any closure, if you will, on that particular item, either.
I don't know if it has been ruled that you do in fact have some say into the -
Ms Mahaffy: They are sealed, and they belong to the court at the present time. If Bernardo were to challenge that, he would need a lawyer. He could sign a large contract to sell his story, and then get a lawyer to represent him. There would be no more legal aid for Mr. Bernardo. However, what this bill will do is prevent him from being able to get this large amount of money. Right now he can do that. But if this bill is passed, criminals will no longer be able to do that.
Mr. Art Hanger: So it's after the fact, then.
The Chair: Thanks, Mr. Hanger.
You might want to be careful not to ask questions about a case that's before a court. I don't think we should put Ms Mahaffy in the position where she's making statements her lawyer doesn't know she's making.
Ms Mahaffy: He'll bail me out again.
The Chair: Okay.
Mr. Telegdi and then Mr. Wappel.
Mr. Andrew Telegdi (Waterloo, Lib.): Thank you, Madam Chair.
Certainly Mr. Wappel's bill is welcome, and I think it's widely supported by the Liberal members as well.
I was quite dismayed and had a sense of outrage about the coverage of the trials, particularly by some tabloid papers. It seems to me there's more and more commercialization with regard to crime. The more tragic the case, the more its commercial value. I wonder if you've examined the possibility under the copyright...to limit the sensational nature of the coverage, or at the very least get some kind of royalty out of it for both victims' organizations and victims.
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Ms Mahaffy: I don't think you can control the press and media and the freedom of expression to publish. I think we have certainly experienced the gamut of that: ``If it bleeds, it leads''. The more macabre, the more sex and violence involved.... If two men had been shot in that house, it wouldn't even have made front page. That is sad, very sad, but it is the reality of life.
Again, we should come back to the bill, because the bill is talking about criminals once they are convicted, once they are inside. Those are the ones we want to get first, and then we'll work on the other ones.
Mr. Andrew Telegdi: In terms of copyright, I know we have legislation in terms of authors being able to protect. I think it should be balanced, the rights of victims and their families wanting to protect. I think it should have at least as high standing as it has for authors.
Ms Mahaffy: Yes.
The Chair: Thanks, Mr. Telegdi. Mr. Wappel.
Mr. Tom Wappel: I want to thank the witnesses for coming today and for making their presentations, and for their support.
Mr. Sullivan, I've read your brief carefully. I'm particularly interested in page 2, paragraph 2. You're talking there about concern with a particular section that in your view might prevent families of offenders from profiting. Your concern is that it may prevent an incest survivor, for example, from telling their story, or a battered woman from telling her story about abuse suffered.
You say:
- We...want to ensure that the victim(s) of the offence committed who may be related to the
offender still have the right to profit if they chose to write a book.
I thought I had drafted it with clarity. Obviously, I have not. The point is, if an incest survivor did not collaborate with the perpetrator of the crime and chose to write a book about the crime, the intent of this bill would be that it would not in any way, shape or form be covered. The focus is narrow, that the perpetrator not receive any profits.
Do you have a copy of the section there? If I were to suggest the following amendment, I wonder if in your view your concern would be dealt with. I know I'm putting you on the spot. I just thought of this while you were making your point.
To make it even more clear that it is the collaborative aspect we're concerned about vis-à-vis family members and dependants, we could add the phrase, ``with whom the person convicted collaborated'' in line 3, after the word ``him''.
It would read as follows:
- 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
- This would make it crystal clear that it's the collaborative aspect with the convicted person that
would kick in and result in the profits being seized.
Mr. Sullivan: You're correct about our objection, and I think that will certainly meet our concern and emphasize the fact that it's collaborating with the offender...and not affect an incest survivor, for example, or a battered woman.
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Ms de Villiers: I'm not a lawyer, but I'm very concerned here, because I can just hear the hay that's going to be made out of proving the collaboration. From my point of view, when I read that, an incest survivor is the victim. I mean, that is not the perpetrator.
Mr. Tom Wappel: That's correct.
Ms de Villiers: So I would be really very concerned about having to show collaboration.
Mr. Tom Wappel: No. The point is that it would be up to the Crown to have to demonstrate that someone who had written a book in effect was attempting to get around the purpose of this law, or the intent of this law, and in effect collaborated with the perpetrator and did not reveal that. So there would be no onus on the writer of the book to demonstrate this.
Ms de Villiers: That's exactly what concerns me.
Mr. Tom Wappel: Why?
Ms de Villiers: Because I think it's yet another pitfall the Crown is going to fall into, or going to have to traverse, in order to prove that there was collaboration.
Mr. Tom Wappel: Yet even without that, you've brought forward the professor's concerns. We are going to have concerns, there's no question about it.
Ms de Villiers: Oh, we have concerns.
Mr. Tom Wappel: There is no doubt that there are going to be charter arguments. It seems no matter how we do this - and of course, this is any legislation this committee passes - somebody is going to come up with a charter argument. You were talking about the American cases. The critical thing about the American cases is that they found the law to be too broad.
So if you limit the focus as much as you can and make it as narrow as you can, you have more chance of surviving a charter challenge. That's why you keep it so that if anybody in the world - and this goes to the second issue you were talking about, which has nothing to do with this law - could write about these terrible crimes and profit from them, and can right now...except, we hope, at least at the absolute minimum, the person who committed the crime. That's what this bill is trying to get at.
I think that was the objection from Mr. Sullivan, that it was perhaps too broad because it would prevent victims from being able to write about the crime. That certainly is not my intent. If the victim wants to write about the crime, then so be it under the current laws we have, setting aside for a moment the comments made about the next step, as you put it. That was the purpose of that clarification. It would ensure that we're merely talking about preventing the criminal from profiting.
Mr. Sullivan: Ms Mahaffy raised the point when she heard this discussion about an offender who collaborates with, for example, a cell mate, and the cell mate writes the book. It may be another way around the law. I don't know if you can address it in legislation, really, but Ms Mahaffy raised the concern, and I think it's a worthy one.
Mr. Tom Wappel: That is addressed, if I may say so, in the last two lines of that section. If there's any collaboration or cooperation, then you can't profit from it, or at least that portion that flows to the criminal. The cell mate didn't commit the crime. There may be an issue there, but again, we have to walk a very fine line between the freedom of expression and the restriction on the criminal from profiting. It's the balancing of interests, as you yourself said. It very difficult.
The Chair: Thanks, Mr. Wappel.
I want to take a moment to ask a question on what happens to the proceeds. We suggested earlier, in our first meeting on this bill, that assuming that the bill passes and that copyright rests with the Crown, we then could establish a fund and direct this money to victims or to programs for victims of violence.
I take it, Mr. Sullivan, you support that.
This may be nitpicking, but one of the directions this committee often takes in less formal discussions than this is that the goal of the justice system should be in part to help create fewer victims - in other words, crime prevention. Would crime prevention loosely fit within your group's thoughts of what should happen to this money, crime prevention programs or -
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Mr. Sullivan: I certainly support the notion of programs, especially for young people, that will help them steer away from the path -
The Chair: Yes. That's what I'm thinking.
Mr. Sullivan: However, first of all, I don't know if we're going to see a lot of money through this, and I think there are a lot of victims' needs that right now simply aren't being met. I think it may be a priority to deal with those concerns, with programs for victims and education for victims about their rights.
I invite the other members of the panel - who are victims themselves - to comment as well, but I certainly think we first need to look after the victims we already have with this money. But I would not object to moneys being put into a program to prevent crime.
The Chair: When I first raised it, my thought was that the money should be used to benefit victims directly. I wasn't really thinking of general programs as much as I was thinking of something like a fund for counselling or, for instance, for all of the things that the Criminal Injuries Compensation Board in Ontario tries to do and that sort of thing.
Mr. Sullivan: Sure.
Ms de Villiers: May I speak to this?
The Chair: Please.
Ms de Villiers: It actually goes to what I was going to be talking about this afternoon, and that's victims' rights. As for the whole question of victims in Canada, we're actually in the dark ages compared to a lot of other countries when we're dealing with victims, victimology, preventing victimization and so on. I think it would be a very welcome philosophical change if in fact it were stated that such moneys seized - even if there's very little money - go directly to assisting victims.
I'd also like to say that because it will be through the Crown, which is administered provincially...most provinces now have some form of victims' compensation. Rather than developing a whole new structure for where this money would go, it makes sense to me to say that where these mechanisms are already in place, the money would go into those funds. It could be earmarked or not. I don't know. That's up to you.
It just seems to me that the important point is that a legislative committee is actually earmarking those funds to go to assisting victims. We've had very little of that sort of approach, and I think it would open the door to a lot more.
I caution against it going into some sort of general revenue such as crime prevention, which could almost be like a tire tax. One of the things that has been pointed out to me very clearly is that we need the compensatory arm to be very strong against the punitive...and therefore that would do it.
The Chair: It's like some provinces thinking that filling potholes is post-secondary education.
Ms de Villiers: Absolutely. We've seen that happen.
The Chair: Thank you very much.
We're going to take a little break.
Mr. Randy White: Can I ask Mr. Wappel just one quick question, please?
The Chair: Sure. Can I just release our witnesses?
You're welcome to stay, and I know -
Mr. Randy White: They may want to hear this.
The Chair: I'm only letting them leave if they want to go to the bathroom or something. Go ahead, Mr. White.
Mr. Randy White: The rumour is that an election could be called. What are the chances of this actually becoming law if that happens, if the writ is dropped between now and June 30?
The Chair: Can you answer that, Mr. Wappel?
Mr. Tom Wappel: Madam Chair, it's 11:19 a.m. and I can't even tell you what's going to happen at 11:20 a.m. We'll just have to see what happens in this committee, and then we have to see what happens after that and take it one step at a time. Isn't it one period at a time in hockey?
Mr. Randy White: Well -
The Chair: Mr. Wappel, are you going to drive everybody crazy in trying to get this passed if it goes through committee?
Mr. Tom Wappel: Yes.
The Chair: He's very good at that.
Some hon. members: Oh, oh!
[Translation]
Ms Christiane Gagnon: The DNA Act was passed in three or four days, I think.
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[English]
The Chair: That's a good point. Thanks.
We'll just rise and give ourselves a shake, and our next witnesses will come to the table.
As I said, witnesses, you're welcome to stay with us.